Parliamentary Committee Notes: Emergency Measures Regulations – Law Enforcement

Date: April 2022

Classification: Unclassified

Branch/Agency: CPB, RCMP

Proposed Response:

• Invoking the Emergencies Act was a difficult, but necessary decision made in the best interest of Canada and Canadians.
• It reflected the severity and length of unlawful blockades – including over three weeks in Ottawa, and six days in Windsor with the blockade of the Ambassador Bridge – and reflected our collective concern about illegal occupations and non-peaceful protests across the country.
• I want to thank police officers from all law enforcement agencies who joined the operations and are working diligently to resolve situations across the country and keeping communities safe.
• The orders and measures announced as part of the declaration of a public order emergency were intended to be time-limited, targeted and supplemental to other measures available to law enforcement.
• The Emergencies Act was only meant to be applied as long as it was needed. Once the situation on the ground changed, law enforcement was able to rely on existing tools and authorities to maintain peace and public safety, and the declaration of emergency was revoked on February 23, 2022, nine days after its proclamation on February 14th.
• The Emergency Measures Regulations invoked under the Emergencies Act were national in scope but applied specifically to addressing non-peaceful protests and illegal blockades. All law enforcement agencies, including the RCMP, were given additional tools to do their job, and address non-peaceful protests and illegal blockades that may breach the peace.
• These measures did not remove the authorities of police of local jurisdiction.
• As we have seen, these measures allowed law enforcement to effectively address unlawful public assemblies, prevent adults from bringing children to these areas, turn away people who wished to travel to these assemblies, and stop those who would have provided support for lawful assemblies, such as diesel for illegally idling trucks that are creating a blockade.
• There were also new powers to require people to provide essential goods and/or services for the removal, towing and storage of vehicles and equipment that are part of an unlawful blockade, for which they were entitled to compensation at local market rates. I understand that these may have been helpful.
• The Commissioner of the RCMP delegated these powers to key members of her team across the country, as well to the OPP Commissioner.. These powers have been used to secure needed equipment to clear the streets in Ottawa.
• Our goal was to bring a safe end to these illegal blockades and occupations and see order restored as soon as possible to ensure the safety of Canadians and an end to the economic disruptions. I believe we have done so.

If pressed on actions taken as a result of the order:

• We all saw the vivid images of police action in Ottawa in late February. The measures provided for under the Emergencies Act have helped police to maintain the perimeter, restrict travel and limit access to the downtown core, and ensure that they continue to restrict financial support and other assistance to protesters. Using all authorities available to law enforcement, as of February 21st there have been close to 200 arrests, 110 individuals charged with various offences laid and a total of 115 vehicles towed.

• We do know that the Emergencies Act was used to bring about the peaceful conclusion of the illegal blockades, and to deter unlawful actions and encourage peaceful protests.

If pressed on why Ottawa was not designated a secure zone:

• A designation was not required in Ottawa because the assembly was already unlawful. As a result, the police were able to establish a perimeter relying on the Emergencies Measures Regulationsand other existing legal authorities to secure and maintain control of the area.

If pressed on infringing on provincial jurisdiction:

• While these measure applied nationally, they were not meant to infringe on provincial jurisdiction over administration of justice and policing. Police of local jurisdiction remained in command of police operations and used the measures under the Emergencies Act based on their operational requirements.

If pressed on what issues are being addressed by the Emergency Measures Regulations:

• The measures contained within the Emergency Measures Regulations supplemented existing authorities and provided new tools for law enforcement to address unlawful blockades.

• Police were given the ability to compel individuals and companies to provide the essential goods and services requested for the removal, towing and storage of any vehicles, equipment, structure or other object that is part of a blockade, with reasonable compensation.

• The police were also able to designate secure areas to support their operations, and refuse people travelling to illegal protest with the intention of participating.

• Bringing a minor to participate in such an assembly was a new prohibition, as was entering Canada with the intent to participate in such an assembly.

• Supporting an illegal assembly was also prohibited, and police had the authority to enforce the prohibition by, for example, turning away people who are bringing in food, blankets, shelter materials to an area of an unlawful assembly.

If pressed on court challenges related to the Emergencies Act:

• We are aware of court challenges related to the Emergencies Act. It would be premature to speculate on the outcomes of these judicial processes at this time.

• The measures put in place as a result of the declaration of a public order emergency were temporary, targeted, and proportionate to the threat we faced. The measures were also consistent with the Canadian Charter of Rights and Freedoms, and were revoked once they were no longer necessary.

Background:

Peaceful assembly is a right under the Canadian Charter of Rights and Freedoms. However, the protest activities that were seen across Canada related to the Freedom Convoy 2022 exceeded the definition of peaceful assembly, resulting in illegal blockades, disruptions to people’s lives and the movement of goods, and the occupation of Ottawa. This created a critical, unique, and urgent but temporary situation that was national in scope, which could not be effectively dealt with under existing laws of Canada. The length of time of these illegal blockades and disruptions – over 21 days for Ottawa, 8 days for the blockade of the Ambassador Bridge, and 17 days for the blockage of the Coutts, Alberta border crossing – created significant adverse effects on the Canadian economy and individual liberties of citizens, at a time when the country is recovering from the impact of the global pandemic. Illegal protests and blockades impacted businesses, manufactures, and critical supply chains have been disrupted, hurting many Canadians, including workers who rely on these jobs.

On February 14, 2022, the Government of Canada announced it was declaring a public order emergency under the Emergencies Act. With this declaration, Emergency Measures Regulations (EMRs) and Emergency Economic Measures Order were put in place. These provided law enforcement with additional tools to resolve illegal blockades and the occupation of Ottawa. On February 23, 2022, the declaration of emergency was revoked, and all measures and orders ceased to be in effect, although law enforcement may continue to lay charges for activities that violated the Act during the declaration of emergency

Existing Tools Available to Address Blockades and Illegal Protests

Prior to invoking the Emergencies Act on February 14, 2022, law enforcement had certain tools available to them in addressing the illegal protests and blockades. These tools included recourse pursuant to the Criminal Code as well as provincial and municipal statutes to address the traffic and noise violations. However, despite the existing tools, the situation was rapidly evolving and escalated to the point where the Ottawa police needed the assistance of the province and Canada. The new measures that were introduced have closed the gaps that prevented law enforcement from effectively addressing this public order emergency and provided them the measures needed to resolve it. These new measures build on existing tools, including strengthening the ability to impose fines or imprisonment, and allow the government to secure and protect critical infrastructure , including border crossings and airports. The new measures also provide additional resources to local law enforcement by enabling the RCMP to enforce provincial bylaws where requested.

Despite these existing tools, the situation rapidly evolved and escalated to a point where local law enforcement agencies, including for example the Ottawa Police Service, required additional assistance to address the unique situation of the illegal blockades. The new measures that were introduced through the Emergencies Act have provided new tools to help law enforcement effectively address this unprecedented public order emergency. These new measures were additional to existing tools, and were aimed at prohibiting non-peaceful public assembly in order to prevent the interruption of movement of people, goods, or trade. It also aimed at preventing the interference with critical infrastructure, or promoting violence against a person or property. The measures strengthened the ability to impose fines or imprisonment, and to secure and protect critical infrastructure, including border crossings and airports. The new measures also provided additional resources to local law enforcement by enabling the RCMP to enforce provincial and municipal bylaws where requested.

Emergency Measures Regulations (EMR)

The goal of law enforcement is always to maintain public order and keep citizens safe. The Emergency Measures Regulations, made under subsection 19(1) of the Emergencies Act, were in force from February 15, 2022 to February 23, 2022 and responded to the unique challenges associated with the current unlawful blockades, which were unprecedented in their scope and nature. Measures contained within the EMR were temporary and proportionate to the situation, and aimed at ensuring the safety of Canadians during this national emergency, including:

• Prohibiting public assemblies that may reasonably be expected to lead to a breach of the peace;
• Prohibiting the use of property to facilitate or participate in such assemblies;
• Designating and securing protected places;
• Directing persons to render essential goods and services to remove, tow and store vehicles and other items that are part of a blockade, with compensation;
• Prohibiting the use, collection, or provision of property in support of an unlawful assembly – e.g., diesel for illegally idling trucks creating a blockade.
• Authorizing or directing financial institutions to render essential services to relieve impact of blockades, including regulating and prohibiting the use of property to fund or support the blockades, and compelling banks to freeze bank accounts reasonably suspected to have contributed to the public order emergency;
• The imposition of fines, imprisonment, or both, for failure to comply with regulations made under section 19 of the Emergencies Act or a lawful order made under them (e.g. direction to provide essential goods and services).

The EMRs created five prohibitions:

• Participating in a public assembly that may reasonably be expected to lead to a breach of the peace, i.e. serious disruption of movement of persons, goods, serious interference with trade, interference with the functioning of critical infrastructure, acts or threats of serious violence against persons or property;
• Causing a minor to participate in or travel near such an assembly (in other words, preventing adults from bringing children to these areas);
• Entering Canada with the intent to participate in or facilitate such an assembly;
• Travelling to or within such an assembly; and
• Using, collecting, providing, making available, or inviting a person to make available – whether directly or indirectly - property to facilitate or participate in such an assembly.

The intent of these measures was to supplement federal, provincial and municipal authorities to address illegal blockades and to restore public order and the rule of law, and ensure that confidence in Canada’s institutions continues. These time-limited measures were be used only where needed by local law enforcement, and did not derogate provinces jurisdiction over the administration of justice and policing.

Ability to Render Goods or Services

Due to the challenges of law enforcement across jurisdictions to procure towing and wrecking services to remove unlawful blockages, the EMRs provided a new authority for the Commissioner of the RCMP and the Minister of Public Safety and Emergency Preparedness or any person acting on their behalf to compel the provision of goods or services needed to remove, tow, and store any vehicle, equipment, structure or other object that is part of a blockade. Those asked to provide services must do so promptly, and will be provided fair compensation.

The Commissioner of the RCMP assigned this ability to appropriate RCMP members across Canada, and had also assigned the ability to the Commissioner of the Ontario Provincial Police (OPP) at their request. This measure has been used, most notably in Ottawa to help remove illegal blockades in front of the Parliament Buildings and other locations.

Designation of a Protected Place

The EMRs identified certain locations as being "designated as protected and may be secured", including critical infrastructure, Parliament Hill and the parliamentary precinct, official residences, government and defence buildings, and monuments such as the War Memorial. Further, the Minister of Public Safety had the authority to also designate additional places if required. This allows for preventative action to secure these locations to aid in law enforcement operations to address illegal assemblies and blockades. During the period that the Emergencies Act was invoked, law enforcement operated with the EMR’s as they were written.

Peace Officer Authorities

Peace Officer authorities in enforcing the EMRs included:

• To secure certain designated protected places (e.g., critical infrastructure such as airports, utilities, border crossings, and government buildings); and
• Take “necessary measures” to ensure compliance with the EMRs.

Penalties under the EMRs

Contravention of the EMRs or of a lawful order by a peace officer made thereunder may be prosecuted as a summary conviction or indictable offence.

• On summary conviction, a fine not exceeding $500 or imprisonment for a term not exceeding six months, or both; or
• On indictment, a fine not exceeding $5000, or imprisonment for a term not exceeding five years, or both.

The normal provisions of the Criminal Code regarding arrest and bringing of charges apply.

Emergencies Act-related Litigation

There are currently four applications for judicial review of the Government’s decision to invoke the Emergencies Act. The applications have been filed by the Canadian Civil Liberties Association, Canadian Frontline Nurses, Canadian Constitution Foundation, and Jost et al (a summary of each application is provided in Annex B). On March 13, 2022, Justice Canada was provided with correspondence from the Alberta Attorney General to the Federal Court, advising that the Attorney General of Alberta intends to file motions to intervene in each of the CCLA and CCF applications on the basis that the matters raise questions of general importance. All four applications are being considered in a joint case management process.

Separately, there is one self represented claim against the Prime Minister that has been filed in Ontario Small Claims Court.

Annex A: Overview of Key Blockades and Illegal Protest Sites

Ottawa, Ontario

Current Status: Event concluded. Ongoing vigilance and monitoring.

Duration: 42 days and ongoing

Start Date: January 28, 2022

End Date: To be defined by OPS. Gradual reduction by all police forces.

On February 16, after three weeks of occupation, the Ottawa Police Service (OPS) issued a warning to protesters to either leave or be arrested. On February 17, 2022, the Integrated Command Centre (ICC) comprised of RCMP, Ontario Provincial Police, OPS, and other police services commenced enforcement activities. This led to the arrest of key convoy organizers and supporters, including Chris Barber, Tamara Lich, Pat King, Daniel Bulford and Alex Vriend. On February 20, 2022, during the afternoon, Ottawa Police delivered a Trespass Notice to individuals located at Coventry Road, a staging area with extra supplies for the downtown convoy. As of the end of the day, the staging area has been cleared.

As of February 21, 2022, the Ottawa Police Service (OPS) reported close to 200 arrests and 115 vehicles towed. Under the OPS lead, the ICC established operational control of the NCR and continue operations to return the downtown core to a state of normalcy.

The ICC has stood down, and the police of jurisdiction have returned to their regular duties, including continued vigilance around the downtown core. Some continue to protest downtown, which has not been deemed concerning from a public safety perspective. There was a gradual reduction by all police forces, and intelligence agencies and sectors continue to monitor open sources and threats.

Windsor, Ontario

Current Status: Concluded

Duration: 8 days

Start Date: February 7, 2022

End Date: February 14, 2022

On February 7, 2022, the Ambassador Bridge closed in both directions due to significant protest activity, disrupting all cross-border commercial traffic vital to the North American economy. On February 11, 2022, the Superior Court Chief Justice issued a temporary injunction prohibiting individuals from establishing a blockade or impeding access to the Ambassador Bridge. Windsor Police Service provided notices to demonstrators, confirming that anyone involved must immediately cease unlawful acy or otherwise, could be facing charges. On February 12, 2022, law enforcement agencies commenced enforcing the injunction and the Bridge was completely reopened on February 14th. In total, 42 individuals were arrested and 37 vehicles were removed.

Emerson, Manitoba

Current Status: Concluded

Duration: 7 days

Start Date: February 10, 2022

End Date: February 16, 2022

On February 10, 2022, the Emerson port of entry (POE) was completely blocked by protest activity, disrupting cross border traffic between Canada and the US. Free movement of all livestock transport, CBSA employees, emergency services vehicles and residential traffic from the town of Emerson continued. Through ongoing consultation and negotiation, the convoy organizers agreed to a “slow roll” departure mid-day on February 16, 2022. The Emerson POE was re-opened on February 16, 2022.

Coutts, Alberta

Current Status: Concluded

Duration: 17 days

Start Date: January 29, 2022

End Date: February 15, 2022

On January 30, 2022, the Coutts POE was significantly disrupted due to ongoing protest activity. This border crossing is important for ongoing trade between Canada and the US, as it is the largest POE in Alberta and the only one operating 24 hours a day.

On February 14, 2022, the RCMP arrested 11 suspects and seized firearms and ammunition. These suspects have been charged with a variety of Criminal Code offences, including mischief over $5000 and conspiracy to commit murder. After the arrest of these key suspects, the convoy leaders reached an agreement with the RCMP recognizing that the demonstrators maintained peaceful intent and that no violence would be tolerated. As such, the border resumed operation on February 15, 2022.

Surrey, British Columbia

Current Status: Concluded

Duration: 8 days

Start Date: February 12, 2022

End Date: February 19, 2022

Since February 12, 2022, the Pacific Highway border crossing has had various disruptions resulting in intermittent border closures. For instance, on February 13, 2022, the Pacific Highway redirected traffic to other POEs, while on February 15th, the border restricted access to vehicles and pedestrians. On February 19th, the border was open in the morning and closed in the afternoon due to increased protest activity. As of February 19, 2022 at 2000 hours, the border remains open as the majority of demonstrators and vehicles have departed.

Other events

Many events were planned and have taken place across the country over the last few weeks. Some were cancelled or postponed, and others materialized without violent incidents.

Annex B: Emergencies Act Litigation

Canadian Civil Liberties Association v. AGC:

The applicant argues that the vast majority of protests across Canada have been handled by local authorities using existing laws, and that several provinces have stated that resorting to the Emergencies Act is unnecessary. In particular, the applicant argues that the legislative thresholds have not been met and, for that reason, the Emergency Proclamation is unreasonable and ultra vires. The applicant is seeking various orders, including orders to quash the Emergency Proclamation, the Emergency Measures Regulations, and the Emergency Economic Measures Order.

Canadian Frontline Nurses et al. v. AGC:

The applicants are alleging that Canada invoked the Emergencies Act to suppress political dissent. In particular, they are arguing that the invocation of the Emergencies Act is improperly motivated by a design to target, threaten and punish individuals who have different views from that of the Prime Minister with respect to Covid-19 mandates and restrictions. The applicants are also arguing that the Public Order Emergency Proclamation is ultra vires and unreasonable and does not meet the threshold provided under the Emergencies Act.

Canadian Constitution Foundation v. AGC:

The relief sought by the Applicant includes: (1) an order declaring unlawful and quashing the Public Order Emergency Proclamation; (2) an order declaring unlawful and quashing the Emergency Measures Regulations; (3) an order declaring unlawful and quashing the Emergency Economic Measures Order; for (2) and (3) the Applicant also seeks an order pursuant to s. 52(1) of the Constitution Act declaring these measures to be unconstitutional and of no force or effect; (4) an order pursuant to Rule 105 that this proceeding be joined with CCLA v. AGC, T-316-22; (5) an order directing the Respondent to deliver the Record to the Applicant on an urgent basis pursuant to Rule 317; (6) an order directing the Respondent to deliver to those portions of the Record over which it asserts any privileges under Rule 318, including any s.38 and s.39 CEA privileges, to the Applicant on an urgent, counsel-only basis pursuant to a confidentiality undertaking.

Jost et al. v. AGC et al.:

The applicants are all individuals who participated in the Ottawa protests. They seek declarations that the order and regulations are invalid and ultra vires the Emergencies Act, are inconsistent with sections 91, 92, and 96 of the Constitution Act and sections 2(b), 2(c), 6, 7, 8, 9, 12, and 15 of the Charter and therefore of no force and effect. They also allege violation of the Canadian Bill of Rights and international law obligations, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Declaration of Human Rights, and the Vienna Convention on the Law of Treaties. The applicants seek an expedited hearing and an order quashing the declaration and measures issued pursuant to the Emergencies Act.

Steven Barrow v Justin Trudeau (SB):

A self-represented claimant has initiated a matter in an Ontario Small Claims Court. The only remedy sought is to refer the defendants for a “private prosecution” under the Criminal Code for alleged violation of the Crimes Against Humanity and War Crimes Act against a civilian population with different views).

Date modified:

2022-11-24