Thank you, Mr. Chair.
Good evening, everyone.
Honourable joint chairs and committee members, thank you for the invitation to speak.
I want to cover three points in my opening remarks. First is the test to invoke the Emergencies Act. Second, I want to speak to the temporary measures. Third, I'll speak to compliance with the charter.
On the first element of the test, I invite you to read sections 3, 16 and 17 of the Emergencies Act. Section 3 states that a national emergency is an urgent and critical situation of a temporary nature that seriously endangers the health and safety of Canadians and that cannot be effectively dealt with under any other law of Canada.
I want to make two points about that.
First, on February 14, the Governor in Council decided that our country was indeed in such a crisis situation. The reasons for issuing the declaration of a public order emergency were set out in great detail in the public document required by section 58 of the act. It's that document that summarizes the facts that the GIC relied on at the time to come to the conclusions that there were reasonable grounds to invoke the Emergencies Act. I believe that this document is before the committee.
Second, the GIC determined that the situation had exceeded the capacity and authority of the provinces and territories to respond “effectively”, or “adéquatement” as it says in the French version.
The test is not whether other laws existed, like other provincial highway traffic acts. The test is whether they were effective at dealing with the emergency. Nor is the test whether they could have been effective. The test is whether they were effective. The government determined that they were not and enacted time-limited measures for law enforcement and financial service providers to use, at their discretion, to deal with the emergency.
The Emergency Measures Regulations that were made prohibited certain targeted conduct and gave peace officers the power to preserve and maintain the public peace.
Each of the prohibitions listed in sections 2 to 5 of the Regulations addressed behaviours observed during the unlawful blockades and the occupation of Ottawa streets. The key prohibition is set out in subsection 2(1), which supplements the powers to maintain the peace that police have at common law by prohibiting certain public assemblies. It does not affect all public assemblies, only a very precise, targeted type: a public assembly that may reasonably be expected to lead to a breach of the peace by the serious disruption of the movement of persons or goods or the serious interference with trade, the interference with the functioning of critical infrastructure, or the support of the threat or use of acts of serious violence against persons or property.
The measures also provided that a person must not bring children to unlawful assemblies—conduct that we all observed in Ottawa and Windsor. The measures also provided that a foreign national must not enter Canada with the intent to participate in an assembly referred to in that section, and prohibit providing property or funds to support unlawful assemblies.
The related Emergency Economic Measures Order, which provides for certain bank accounts to be frozen, was also very targeted and limited. The obligations to which financial institutions were subject no longer applied, that is, ceased to apply, if the “designated person”, a term defined in the order, ceased to engage in unlawful activities. It was therefore easy for a person to exempt themself from the freeze simply by leaving the unlawful assemblies.
The objectives of the measures were clear: to deter the attendance at unlawful assemblies, to bring an end to the unlawful blockades and get people to leave, and to prevent the formation of new unlawful blockades and protests.
Finally, on the charter, as the Minister of Justice said at his appearance on April 26, the measures were consistent with the charter, and the declaration did not suspend the charter. That is clear from the act. The charter continued to protect rights and freedoms as the government took the necessary lawful and proportionate measures to address the blockades.
I want to explain what we do at the Department of Justice when we review new laws, like these temporary measures, for charter compliance. We are not the police deciding whether or how to use existing or new authorities, nor are we prosecutors deciding whether to pursue a prosecution. We review the law on its face, in this case the temporary orders, to understand their objectives and examine whether the measures are inconsistent with the charter.
The examination can include consideration of whether any interference with a charter right is justified in a free and democratic society as allowed by section 1 of the charter. We look at their scope and their relationship to the objectives of the measures. We rely on decisions from the courts, including the Supreme Court of Canada.
While we can't share our legal opinions that we may have prepared for the executive branch, we can explain the position of the government. The minister has already explained that his position was that the measures were targeted, proportional, time limited and charter compliant.
The minister has tabled today a charter backgrounder that sets out the charter considerations that go through sections 2(b), 2(c), 6, 7 and 8. I hope that will help your understanding and deliberations.
In conclusion, we found that, overall, the Regulations and the Order prevented the organizing of unlawful protests and enabled the police to get control of the situation. The occupiers left in order to avoid having their accounts frozen. People stopped bringing their children to unlawful protests, and this enabled the police to enforce the law in Ottawa. The measures also deterred other people from joining the blockades. Those were the actual objectives of the new measures adopted under the Emergencies Act.
That concludes my introduction. We are eager to answer your questions.
