Scoping the Measures made under the Emergencies Act

Last night the federal government published the emergency measures made under the Emergencies Act. I will post separately, in light of these measures, on how the courts are likely to determine (if asked) the standard for declaring a “public order emergency” under Act has been met. My focus on this post is on the strikingly broad sweep of the emergency measures, which reach deep into matters of provincial jurisdiction and cast the net of liability extremely wide.

The first measure is the Emergency Measures Regulations: SOR/2022-21. Most importantly, this contains general prohibitions on participating in or travelling to assemblies likely to lead to a breach of the peace (which tracks the language in the enabling provisions in the Act):

Articles 3 and 4 contain prohibitions on travel.

Article 5 prohibits the provision of material support to those participating in unlawful assemblies:

5 A person must not, directly or indirectly, use, collect, provide make available or invite a person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity.

This provision sweeps extremely broadly. The plain language of article 5 covers everything from the individual (anywhere in Canada, or even abroad) sending money to support those participating in an unlawful assembly to the Quickie cashier who sells a can of propane to someone en route to an unlawful assembly.

The breadth of this provision becomes extremely important when considering the companion Emergency Economic Measures Order: SOR/2022-22. This targets “designated persons”, who are defined as ” any individual or entity that is engaged, directly or indirectly, in an activity prohibited by sections 2 to 5″ of the Regulations. That is, anyone from the direct participant and the funder to the Quickie cashier.

In respect of these persons, all Canadian financial institutions — whether federally or provincially regulated — are obliged to freeze their accounts:

2 (1) Any entity set out in section 3 must, upon the coming into force of this Order, cease

• (a) dealing in any property, wherever situated, that is owned, held or controlled, directly or indirectly, by a designated person or by a person acting on behalf of or at the direction of that designated person;
• (b) facilitating any transaction related to a dealing referred to in paragraph (a);
• (c) making available any property, including funds or virtual currency, to or for the benefit of a designated person or to a person acting on behalf of or at the direction of a designated person; or
• (d) providing any financial or related services to or for the benefit of any designated person or acquire any such services from or for the benefit of any such person or entity.

As I noted in a previous post, I am not sure that asset freezing measures are within the scope of the authority granted to the federal government in a “public order emergency” under the Act. Subsequent provisions in the Order, relating to disclosure of transactions, do seem to fall within the enabling provisions about compelling individuals or institutions to provide ‘essential services’.

Whatever about vires, the sweep of the asset-freezing measure is striking. It reaches deep into provincial jurisdiction over financial institutions such as credit unions and caisses populaires and payday lenders.

Moreover, it is very difficult to see how article 2 of the Order is to be administered. How can a financial institution know that an account held at one of its branches is being used to funnel money to an unlawful assembly? Or how will Money Mart know that the recipient of a payday loan will use the proceeds to support an unlawful assembly? And surely the Quickie cashier won’t actually have their accounts frozen, even if this could occur in theory.

Presumably, what will happen is that the financial institutions will be alerted by the authorities, at which point the property in question can be frozen. But if there is communication between the authorities and financial institutions, there is an argument that the communication has to be disclosed to the target of the communication: they could argue that, as a matter of procedural fairness, they are entitled to notice and an opportunity to comment; and, at the very least, that they are entitled to present exculpatory evidence in an attempt to have their property unfrozen. Given the severe consequences of having one’s assets frozen, the duty of fairness is likely to have some traction here.

In all of this, the Charter looms large as well. Inasmuch as attending a protest and supporting a cause engages one’s expressive rights, the Regulations and the Order will likely have to be justified under section 1. The justification exercise, evidently, becomes more difficult in respect of broadly drawn provisions, as they may not be “prescribed by law” or sufficiently narrowly tailored to survive scrutiny.

Indeed, as one of my students pointed out to me this morning, the provision in article 7 of the Regulations, which allows the authorities to direct private persons to provide services such as towing trucks, may run into a Charter objection, if the person compelled to act has well-grounded concerns that their life, liberty or security of the person might be endangered if they carry out the order. There is, however, provision for compensation in such cases: see article 9.

Breaches of the Regulations are criminal offences, subject to punishment by fines or prison, summarily or on indictment. No criminal liability attaches to the Order, however, although compliance with the Order is a defence to any civil proceedings (article 7) brought, for example, on the basis of economic harm suffered as a consequence of assets being frozen.

These are, therefore, extremely consequential measures, which regulate a broad sweep of economic activity and impose criminal liability for a wide range of actions contributing directly or indirectly to unlawful assemblies. I think the breadth of the measures is likely to contribute to the intensity with which the courts will (if asked) review the justification provided by the federal government for declaring a public order emergency: I will take up this issue in a separate post.

This content has been updated on February 16, 2022 at 17:38.