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(Unsure if this belongs on Law or Politics SE, it might be better suited for Law)

Apropos of Prime Minister Justin Trudeau invoking the Emergencies Act against the Freedom Convoy in Canada earlier this year, something's been bugging me.

It seems to be the case that the Prime Minister is able to invoke the Emergencies Act, for the most part, whenever he wants, without checks and balances before the fact (there are checks and balances after the fact, within 7 days, but not before). It also seems like, even if the Act is revoked and/or judged to be used improperly, there are still lifetime repercussions to those against whom the act was used.

Given that the Act can be invoked without any check beforehand, what, legally, is stopping a given Prime Minister from invoking the Act against the opposition parties, "just because"? Concretely, this would take the form of the Act being invoked, assets/bank accounts/etc of opposition politicians and supporters being frozen/seized, then within 7 days before the oversight would be handled the Act would be repealed, an "ok emergency's over!" statement would be issued, and those people whose assets were frozen would have lifetime flags on all their financial transactions. Certainly, if the Act was invoked, as in this case, even if it was repealed, there would be a followup confidence vote in Parliament, and the government might fall, but is that the only check against this sort of action, or are there others?

EDIT: In case the question is unclear, here is an excellent rephrasing of the question from the comments:

It seems pretty clear that OP is asking what the specific legal provisions and procedures one would rely on to remedy misuse of this act, or to prevent misuse from being enacted in the first place. I.e. if the government simply declared that inconvenient opposition MPs were causing a "public order emergency" and took some action against them, who has the power to stop them and declare "no, that's not what 'public order emergency' means".

(credit to /u/Ben)

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    Comments are not for extended discussion; this conversation has been moved to chat.
    – CDJB
    Commented Mar 23, 2022 at 6:55

2 Answers 2

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Disclaimer: I don't know any details of the Canadian system specifically, nor am I a lawyer. I am merely extrapolating from living in a commonwealth democracy that I believe to be somewhat similar (Australia), so please see this answer as superseded by any other that comes along with more specific knowledge.

There are many pieces of legislation that give the government discretion to take actions under circumstances meeting some criteria. Regardless of any provisions in those legislation themselves (such as the confirmation required of the House and Senate in the Emergencies Act), the courts are the arbiter of "what the law really says".

So if the government thinks the circumstances meet the criteria described in the legislation and takes action allowed by the legislation, and someone affected by that action disagrees, they can ask the courts for a review of whether the legislation really allowed the actions taken by the government (and appropriate remedy if it is found that the actions were not allowed).

I don't see how the provisions for a confirmation vote in the Emergencies Act changes this picture. If there is a dispute about whether the Freedom Convoy situation really qualifies as a national emergency and allows the actions taken by the government, it is the courts who decide that. The confirmation provision says that even if the government is perfectly legally correct about the situation being an emergency, the national emergency status cannot continue to be used unless the House and Senate pass a motion to confirm the emergency. This does not seem to be anything about "declaring the invocation of the act to be legal"; it is merely a procedure to require widespread agreement in the legislature for a long-lasting declaration of emergency.

As evidence, I offer the fact that (according to a citation I found in Wikipedia), the province of Alberta is proceeding with court action to challenge the legality of having invoked the Emergencies Act, even after the government has revoked the declaration of emergency:

https://www.cbc.ca/news/canada/edmonton/alberta-emergencies-act-challenge-kenney-1.6362261

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    This is a good, although disappointing, answer. I'll wait to see if any additional information comes in; I certainly hope that "maybe, eventually, the courts will overturn this whenever they get around to it, meanwhile have fun getting a bank loan" isn't the best protection we have.
    – Ertai87
    Commented Mar 22, 2022 at 23:05
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    @Ertai87 Taken to extremes, this applies to every piece of legislation, ever. There is no magical force field that prevents a government from declaring that the Made Up Example Act for Standardising Traffic Light Colours gives them the power to arrest people named Ertai87, and so ordering. Ultimately the courts are what stops them doing that, since you would trivially win the case. More helpfully, their expectation that the courts would find against them prevents such obvious misuse from happening in the first place. But if it's arguable either way, then the courts are your hope.
    – Ben
    Commented Mar 22, 2022 at 23:10
  • @Ertai87 The court system is also pretty good at remedying monetary damages caused by government mis-action. Whereas the effects of a true "national disaster" may be far harder for the court to remedy after the fact, if the government had to wait for a court review before they could take action against people causing said disaster. Honestly this seems like the right way round to do things. Most people don't need to get bank loans frequently or on a tight timeline; those who do will be racking up damages claims against the government.
    – Ben
    Commented Mar 22, 2022 at 23:23
  • Sure, but there are a couple issues being conflated here: Firstly, the Made Up Example Act for Standardizing Traffic Light Colours is an act about standardizing traffic light colours. It doesn't provide for arresting people. That's a pretty cut-and-dried case that's very obvious to succeed. It could be argued in medium-faith that an opposition political party is indeed trying to overthrow the government (because, in reality, they are, always, at all times, that's literally their only job; the only thing is that they tend to do it peacefully).
    – Ertai87
    Commented Mar 23, 2022 at 2:27
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    @Ertai87 You seem to have switched from asking how blatant misuse of the Emergencies Act can be remedied to arguing that the act is a bad law (which is also moving the goal posts, since now we're talking about how bad the things it does permit are, rather than how to remedy things it does not permit). Maybe that's true, but discussing it is not what this site is for. There is also zero point trying to convince me; I don't even live in Canada! If you want to change the law then write to your politicians, start a petition, run for office, convince people to vote on the issue, etc.
    – Ben
    Commented Mar 23, 2022 at 4:24
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The act can't just be invoked without certain safeguards having already been met. And there are limitations on what can cause this to be invoked as well as what they can do when it is invoked. This isn't something that they can invoke on their own and hope it will hold up later.

https://www.canada.ca/en/department-justice/news/2022/02/canadas-emergencies-act.html

The Act also requires consultation with the provinces and territories before a Declaration is issued, unless the provinces and territories cannot be adequately consulted without unduly jeopardizing the effectiveness of the proposed action.

Consultation is required prior to the act being invoked and any attempt to invoke it without that would run afoul of that.

The Act contains a specific definition of “national emergency” that makes clear how serious a situation needs to be before the Act can be relied upon. A national emergency is an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada. It must be a situation that cannot be effectively dealt with by the provinces and territories, or by any other law of Canada. There are four types of emergencies that can be declared under the Emergencies Act:

A public welfare emergency
A public order emergency
An international emergency
A war emergency

The act can also only be invoked for certain things of which none would apply to a political opponent

When the Emergencies Act is invoked, the Canadian Charter of Rights and Freedoms (Charter) continues to protect individual rights as the Government of Canada takes the necessary steps to safeguard the safety and well-being of Canadians. In deciding on measures to take, the Government must respect constitutionally protected rights and freedoms, including the rights of citizens to enter Canada and the right to life, liberty and security of the person, as well as Canada’s obligations under international law. The Charter allows the Government to balance the rights of the individual with the interests of society where limits on guaranteed rights and freedoms can be justified in a free and democratic society.

Specifically, section 1 of the Charter allows the Government to put limits on rights and freedoms if those limits:

are set out in law;
pursue an important goal which can be justified in a free and democratic society; and
pursue that goal in a reasonable and proportionate manner.

This means that during a public order emergency, as defined by the Emergencies Act, the Government must only take actions that are a reasonable and proportionate response to the risks to safety of Canadians.

They are also limited in what actions they can take according to the act.

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    Regarding the first point, the Provinces must be consulted, but they do not have to necessarily agree. In fact, Saskatchewan, for one, vehemently disagreed with the Government's decision in the extant example, to the point that they were going to take them to court: globalnews.ca/news/8640420/… . As such, this "consultation" cannot be said to be a "safeguard" to the Act. The remainder of this answer does not answer the question.
    – Ertai87
    Commented Mar 22, 2022 at 22:58
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    @Ertai87 You are right that it might not stop it but as I said that is a safeguard. The link you provided does suggest that the act happened after consultation and that consultation would allow for a quicker response to the action. And from what I understand the issue in question didn't really even happen anywhere near Saskatchewan which would impact how they see things happening. They also had the option to challenge it in court which they suggested but never did.
    – Joe W
    Commented Mar 22, 2022 at 23:23

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