Note for readers: This post was drafted on February 25, 2022, and further news or commentary on the invocation and revocation of the public order emergency may have since been published.
Greetings from the Canadian prairies!
It is wonderful to be a part of this community and to contribute to Notes Between Us (NBU). Although having several favourites bookmarked, blogging is very new to me. As such, I feel some pressure writing one of the inaugural posts from Canada.
Ideas I had originally jotted down for this post were carefully put aside as I came to terms with writing something about the past few weeks which have unfolded within Canada in unprecedented ways. Then, just as this post was being concluded, the invasion of Ukraine by Russia was no longer imminent but ever-present. It seems the past few months have been marked by a heavy, pervasive, and lingering sense of despair, sadness, worry, and heavy-heartedness. I hope everyone is taking care.
Although collectively spanning less than four fortnights, the repercussions of the Canada convoy protests (also referred to as the Freedom Convoy and the occupation of Ottawa) will likely be felt for some time. As Professor Sean Fluker of the University of Calgary notes, possibly during the height of the convoy protests, “[i]t has been a truly unbelievable year and a bit for the state of democracy and the rule of law in Canada and the United States, with riots and occupations questioning the very legitimacy of elected governments.” Although Canada and the United States are mentioned and internal conflicts likely envisioned, this may be related to other forms of aggression happening throughout the world on both national and international scales.
For those interested, below is a surface compilation of links and citations to the Emergencies Act and executive legislative instruments issued over the past few weeks.
- On February 14, 2022, pursuant to subsection 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp), the Canadian Governor General in Council issued a Proclamation Declaring a Public Order Emergency.
- On February 15, 2022, two executive legislative instruments, namely the Emergency Measures Regulations, SOR/2022-211 and the Emergency Economic Measures Order, P.C. 2022-1082, were created pursuant to subsection 19(1) of the Emergencies Act.
- This Proclamation and executive legislative instruments were published in a special edition of the Canada Gazette (SOR/2022-20, Part II, Volume 156, Extra No. 1) on February 15, 20223.
- On February 16, 2022, the federal Minister of Public Safety issued a Report to the Houses of Parliament on consultations surrounding the Emergencies Act.
- On February 23, 2022, pursuant to section 22 of the Emergencies Act, the Canadian Governor General in Council issued a Proclamation Revoking the Declaration of a Public Order Emergency made on February 14, 20224.
- This Proclamation was published in a special edition of the Canada Gazette (SOR/2022-26, Part II, Volume 156, Extra No. 2) on February 23, 2022.
- Subsection 26(2) of the Emergencies Act speaks to the effect of a revocation of a public order emergency on the orders and regulations made pursuant to that declaration.
- More information is available here.
It was unsettling to see how some aspects of the convoy protests seemed to serve as a national podium for COVID-19 pandemic unrest, more divisive social facets, job and economic interests, and historical issues coming together – a product of our times, so to speak. As an information professional working in the legal sector, it was troubling to observe how supports afforded to some who chose to use the outward appearance of Charter-protected rights were able to amplify more radical and divisive speech, with calls-to-action deviating beyond the protest of COVID-19 pandemic measures and veering into more extreme social expressions.
Constitutional jurisprudence notes that the Supreme Court of Canada (SCC) has recognized, in a broad spectrum of circumstances, that no right is absolute5. In discussing Section 1 of the Canadian Charter6, secondary sources citing commentary from the courts state that Section 1 serves a dual purpose, that of a guarantee of rights alongside reasonable limits, with jurisprudence providing the justificatory criteria against which those limits are measured7. Speaking informally and as a non-lawyer, it only seems sensible to accept that things we label our freedoms have limits and consequences. This is in favour of reflecting broader democratic values, such as space for peaceful debate and public forum.
Writing prior to the Proclamation Declaring a Public Order Emergency, Professor Cherie Metcalf of Queen’s University states, “[e]xpression through violence has always been excluded from the scope of the Charter’s constitutional protection… There is no space under a constitutional banner for “freedom” to threaten or engage in violence… While [the] government can show some flexibility, there is a boundary between legitimate protest and defiance of the law that undermines the broader values of democratic governance.”
The Canada convoy protests have exposed some legislative areas in need of judicial interpretation. After the public order emergency declaration, members of the legal community, including scholars and academics, expressed uncertainty regarding whether the Proclamation Declaring a Public Order Emergency and the creation of the Emergency Measures Regulations and the Emergency Economic Measures Order exceeded the intended powers afforded by the Emergencies Act, which had never been invoked prior. Although the Proclamation Revoking the Declaration of a Public Order Emergency has since been made, we are still left with these questions. It was reported on February 24, 2022 that Canadian legal advocacy groups, namely the Canadian Constitution Foundation (CCF) (Court File No. T-347-22. Filing here. Source: CCF) and the Canadian Civil Liberties Association (CCLA) (Court File No. T-316-22. Filing here. Source: CCLA), still intend to proceed with their applications for judicial review8. We may yet receive judicial interpretation regarding the thresholds and powers set out in the Emergencies Act in the near future.
As information professionals, I believe we endeavour to be cognizant of balances and nuances present in the law as it is crafted, written, studied, and applied to those from all walks of life, keeping in mind the diverse information needs and views of the patrons and organizations we serve and, by extension, the parties they serve (or will serve). The past few years have presented a crash course in examining one’s opinions and expressing them in line with social propriety, tolerance, understanding, and empathy. This has not always been easy when faced with strong beliefs about certain issues. What I have taken away is this: Political affiliations aside, determining the boundaries of peace, social propriety, and the proper conveyance of dissension should not have to conflict with democratic values, tolerance, empathy, and safety, especially for those in more vulnerable positions.
On February 9, 2022, before the peak of the convoy protests and about two weeks before the invasion of Ukraine by Russia, the Honourable Justice Rosalie Abella, who retired from the SCC last year, delivered a lecture entitled “The Rule of Justice: The Compassionate Application of Law to Life”. This lecture was delivered as part of the Coxford Lecture Series of the University of Western Ontario (Western University)9. Almost as if in aid of making sense of the trying weeks to come, Justice Abella perceptively states, “With knowledge comes understanding. With understanding comes wisdom and with wisdom comes the capacity to make justice happen. And to make justice happen we can never forget how the world looks to those who are vulnerable… [T]he rule of justice… puts compassion in the service of law and law in the service of humanity.”
- Emergency Measures Regulations, PC 2022-107, (2022) C Gaz II, 5 (Vol. 156, Extra No. 1).
- Emergency Economic Measures Order, PC 2022-108, (2022) C Gaz II, 10 (Vol. 156, Extra No. 1).
- Proclamation Declaring a Public Order Emergency, SOR/2022-20, 15 February 2022, (2022) C Gaz II, 1 (Vol. 156, Extra No. 1).
- Proclamation Revoking the Declaration of a Public Order Emergency, SOR/2022-26, 23 February 2022, (2022) C Gaz II (Vol. 156, Extra No. 2).
- From the past ten years, see Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, para 37; Frank v. Canada (Attorney General), 2019 SCC 1, para. 171 (In dissent); S.L. v. Commission scolaire des Chênes, 2012 SCC 7, para. 31; and Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, para. 98.
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
- CED 4th (online), Constitutional Law, “The Constitution Act, 1982: Canadian Charter of Rights and Freedoms: Guarantee of Rights and Freedoms” (X.1.(a)) at §504. See also: Halsbury’s Laws of Canada (online), Constitutional Law (Charter of Rights), “Limitation of Rights: General” (III.1) at HCHR-16 Section 1 as guarantee and as limit.
- Federal Courts Act, RSC 1985, c F-7, s 18.1. Federal Court of Canada court filing and summary information are searchable by party or Court File No.
- The Coxford Lectures are published in the Canadian Journal of Law and Jurisprudence (Cambridge University Press).
Notes Between Us (NBU) is a blog about conversations and topics of interest to the writers. The writers are expressing their personal opinions solely. The essays represent their personal beliefs and not that of their workplaces or any organization they are associated with.