Emergency law study studies fundamental rights and freedoms at stake in protests

The Public Order Emergency Committee has heard from residents, police, politicians and protesters about what happened last winter when thousands of people protesting against COVID-19 public health measures took over parts of downtown. I have been interviewing for 6 weeks.

Although no serious violence has been reported, people living in the area say they feel their community has fallen into lawlessness and are threatened with harassment and danger, with protesters demanding their right to peaceful assembly. claimed to be exercising

The commission, now tasked with determining whether the federal government’s invocation of the emergency law to wipe out protests was justified, must grapple with some central questions.Peace Where should the line be drawn that limits Canadians’ right to freedom of public assembly? And what should governments and courts do when that freedom conflicts with the rights of others?

The committee kicked off the policy phase of its investigation on Monday with a roundtable featuring legal experts studying the Charter of Rights and Freedoms.

Commissioner Paul Rouleau said the question of how to define whether a protest is peaceful was a “key element” of the investigation work.

There has been little discussion of the right to peaceful assembly in the Supreme Court of Canada, and reasonable limits to that freedom remain a bit vague, says Jamie Cameron, professor emeritus at York University’s Osgood Hall Law School. said.

Cameron said the key questions were:

Some experts argue the line should only be drawn if protests turn violent, but believe demonstrations could become destructive and no longer considered peaceful. Some are experts.

Prime Minister Justin Trudeau enacted the emergency law for the first time since it was enacted in 1988 after protesters linked to the “Freedom Convoy” blocked downtown Ottawa and a major border crossing. has been activated. residents of those communities.

Police believed the protests in Ottawa would not last beyond the weekend, despite warnings that demonstrators were planning to stay in the capital for an extended period of time, an investigation said.

Eventually, the protesters hardened and blocked the streets with encampments and lorries for three weeks.

Vanessa MacDonnell, associate professor of law at the University of Ottawa and co-director of the uOttawa Public Law Centre, said:

“The real challenge for decision makers is how to balance the competing rights and interests that are being contested in the context of public protests.

The discussion is the first of several that make up this week’s policy phase of the study, which will be used to draft recommendations on how to modernize the emergency law.

The policy phase followed six weeks of public fact-finding hearings at the Library and Archives Canada building in downtown Ottawa, culminating in Trudeau’s hours of testimony on Friday.

The state of emergency laws are specific, including powers for governments, police, and banks to ban people from attending public gatherings that could reasonably be expected to disrupt public order, or from traveling to areas where gatherings are taking place. granted time-limited permissions. .

This has led police to create a no-go zone in downtown Ottawa, making it a criminal offense to enter the area without justification.

Karisima Massen, a law professor at the University of Ottawa, said several experts on the panel agreed the regulation may be too broad, but said context was important.

“At first glance, it seems too broad,” Mathen said, adding that powers were time-limited and that banning travel to certain areas had a list of exemptions.

“It would take into account whether a ban of that sort would actually be too broad in the circumstances.”

The charter applies when the emergency law is invoked

Much of the testimony over the past six weeks in the investigation has focused on whether the government has the legal capacity to enforce the law.

Even if the Emergency Act is invoked, the Charter of Rights will continue to apply as expressly stated in the law.

“A lot of the concern, after all, is that this act is so broad and powerful, but on the other hand, it’s charter-compliant by its very nature,” Rouleau said.

“Certainly, it can be argued that the degree of charter interference should be taken into account in the initial determination of what the emergency threshold is.”

“There’s tension there, so I’m glad I’m not the one making the decisions,” McDonnell quipped.

The discussion culminated in an afternoon roundtable on the charter and fundraising for protesters.

Professor Michelle Gallant of the Robson Hall Faculty said, “In principle, ideas for fundraising to support causes and social movements are protected by the Charter’s guarantees of freedom, although they have not been thoroughly considered in court. I will.” She majored in law at the University of Manitoba.

She said the fundraiser “enlivens” freedoms related to the right of expression, assembly and association.

The emergency law also allowed banks to freeze the accounts of people directly or indirectly involved in protests. The RCMP created a list of protesters and ordered them to freeze their accounts, but banks were given the leeway to identify those who violated emergency laws and freeze their accounts as well.

Gerald Kennedy, another law professor at the University of Manitoba, said typically when the state seizes or freezes someone’s assets, the person is first given notice and given an opportunity to respond in some way. .

Arguably none of these procedural rights were given to protesters who lost access to money after this act was invoked.

Protected rights and due process for “enjoyment of property” could be overruled by other laws, such as emergency laws, he said.

Other topics discussed this week include cryptocurrencies, international supply chains and criminal law, with the debate largely driven by policy documents commissioned for research earlier this year.