Is the Emergencies Act necessary? Lawyers disagree

As MPs debate the Emergencies Act in Ottawa, critical questions and conversations about the Act, and its use are being echoed in Nova Scotia.

The Emergencies Act gives police additional powers and enables banks to freeze accounts of people associated with the protest.

On Sunday night, privacy lawyer David Fraser took to Twitter to announce that after reviewing the Canadian Civil Liberties’ Association legal challenge of the Emergencies Act, he does not believe the threshold to invoke the Act had been met.

“Particularly because other laws — if they had been actually enforced — could have done the job,” Fraser said.

“But I am in favour of the challenge because it is a very measured, surgical court application to scrutinize a significant use of government power. It is devoid of the histrionics and hyperbole I've seen in other COVID related challenges.”

Fraser said the Constitution, including the Canadian Charter of Rights and Freedoms, and the act contain important guardrails and it's up to the judiciary to make sure that government stays within them.

He adds he believes the protesters could have been cleared out of downtown Ottawa weeks ago if the existing laws had actually been enforced.

Constitutional law expert Wayne MacKay said he usually agrees with Fraser, but in this case, he disagrees about whether triggering the Emergencies Act was justified.

“It’s a close case,” MacKay said. “It’s not like a war. Or not like a major event that left no question that we’re in crisis but I think partly because it was left so long in Ottawa and I think partly because the bridge blockings that occurred. That I think it was necessary to deal with it and end it at this point.”

MacKay believes the best evidence for his argument is that police managed to clear out protesters in Ottawa, which had been at a stalemate for three weeks.

MacKay said he agrees with people who believe the failure of governments and police lead the protest to stay in Ottawa as long as it did.

“I think the kind of resources and the kind of tools such as tracking the finances were necessary to solve this very serious occupation.”

On Monday night, Members of Parliament will vote on the Act.

Mackay said it’s important the government only uses emergency measures like this when it is needed and ensures it is used for a short time and sparingly.

He said he reluctantly accepts its use and notes it’s not the War Measures Act, adding that the Charter, and the Bill of Rights still applies, and there is accountability in both the House of Commons and the Senate.

“While it’s not something we should lightly use in any way shape or form I think you can we hopefully balance rights and the use of the emergency in this sparing kind of way.

The Emergencies Act is being challenged by the Canadian Civil Liberties Association and the province of Alberta.

Both Fraser and MacKay believe it’s a good thing to see the Act tested in court.

“The fact that reasonable people disagree on this at least highlights to me how important it is we have this mechanism of judicial review,” Fraser said.