Suppressing Protest in Canada Strictly in Accordance With Law--The End of a Beginning of a Difficult Conversation

 

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In the wake of protests supported by many supported and opposed with equal measures of vigor, the Canadian Prime Minister has invoked the Emergencies Act R.S.C., 1985, c. 22 (4th Supp. last amended 2003) to sidestep the niceties of rule of law and suppress protests the size, scope and effects of which  appeared poised to have a significant  effect on Canada's welfare.  Passions are running high, as is the tendency to mold words to suit the outlook of the speaker either in support of the legitimacy of the invocation, or challenge its legality (and in any case its legitimacy). As reported by CBC:

Prime Minister Justin Trudeau says he's invoking the Emergencies Act for the first time in Canada's history to give the federal government temporary powers to handle ongoing blockades and protests against pandemic restrictions.  "It is now clear that there are serious challenges to law enforcement's ability to effectively enforce the law," Trudeau told a news conference Monday afternoon.  "It is no longer a lawful protest at a disagreement over government policy. It is now an illegal occupation. It's time for people to go home." * * *

The federal government is also going after financial support for illegal activity associated with the convoy protest.  Convoy organizers have raised millions of dollars. They raised money first through the GoFundMe crowdfunding site. When GoFundMe shut the fundraising campaign down, organizers pivoted to the Christian crowdfunding site GiveSendGo.  Finance Minister Chrystia Freeland said that under the Emergencies Act, crowdfunding platforms and the payment service providers they use must register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), the national financial intelligence agency. They must also report large and suspicious transactions to FINTRAC. * * *

Interim Conservative Leader Candice Bergen accused Trudeau of dividing Canadians. "We've seen the prime minister wedge, divide and stigmatize Canadians he doesn't agree with and by doing so he creates so many barriers in terms of trying to solve this problem," she said. "The prime minister had the opportunity to talk and listen to so many he disagreed with and he refused to do so, so this looks like a ham-fisted approach that will have the opposite effect." * * * 

Leah West, an assistant professor in international studies at Carleton University who has published a book on national security law, questions whether that threshold has been met. "To invoke a national emergency, the government would need to be saying that these protests threaten the security of Canada, our sovereignty or our territorial integrity," she said."I have real concerns about fudging the legal thresholds to invoke the most powerful federal law that we have."

Errol Mendes, a professor of constitutional and international law at the University of Ottawa, sees it differently. "If you look at what's happened not just in Ottawa but at the Ambassador Bridge and Coutts, Alta. and in B.C., essentially we have a national emergency," he told CBC News Network. "You have this small group basically asking the government to do whatever they want. That's the national security problem."

And, of course, ironies and unintended (or perhaps punitive) consequences followed. First the irony--the measure has the effect of setting up a no confidence vote on the government which apparently has caused no end of maneuverings among the political elites in Ottawa. (see here). It is not clear how the courts will eventually interpret the phrase "that cannot be effectively dealt with under any other law of Canada" (Emergencies Act ¶ 3) or develop standards for its invocation consistent with Canada's human rights (including civil and political rights) standards. For the moment the discussion has been political but sooner or later the invocation will call for a more dispassionate review in the courts. The optics, though, can cut in multiple dimensions (note I offer no opinion on the substance of any part of this series of events and counter events). More problematic is the conscription of the banks to cutoff financial services to targeted protesters. On some respects it suggests the sort of sanctions approach likely to be used against Russia.  In another sense it may point to conversations in Canada about the development of lists by law enforcement (surveillance and judgment functions), the rights to contest inclusion on a financial proscription list, and the extent to which the private sector may be nationalized in this way.  This is not to suggest that it can't be done, but these extraordinary measures will have significant repercussions on the structures and expectations of Canadian liberal democracy and deserve more discussion than those contained by statement by political figures. 

Canadian banks have begun cutting off financial services to people linked with ongoing anti-vaccine-mandate demonstrations in Canada, an unprecedented use of financial power following an emergency order from the government. . . Financial institutions have “taken action” under an economic order that requires them to stop providing financial services to individuals and entities involved in disruptive protests and blockades, Canadian Deputy Prime Minister Chrystia Freeland said Thursday. . . . Under the emergency order, Canada’s banks have had to repurpose tools meant to stop foreign terrorism and drug trafficking against domestic demonstrators. . . . Law enforcement has since provided lists of names of targeted demonstrators to banks and expects financial institutions to flag transactions that seem aimed at demonstrators, the person said. The banks have turned their anti-money-laundering systems toward the task. . . The emergency order bars lawsuits against the banks, but the institutions face risks to their client relationships and reputations as they work to comply. (Canada’s Banks Pressed Into Effort to Quell Protests )

Much of the analysis, beyond its politics, will depend on a close reading of the statute, in light of the normative values through which it may be legitimately interpreted. The application in this context, and its ramification for other protests in a democratic society, will require a bit of soul searching for Canadians about the meaning, limits, expectations, responsibilities and protections of civil and political rights in a stable and vibrant system. That is certainly beyond  any effort here that could be attempted here. But passions are high and it is not clear Instead, it is worth considering the events and the authority invoked with direct reference  the language of the statute itself, which follows.