ICLMG statement on use of Emergencies Act

Feb. 24, 2022, OTTAWA — Yesterday, the federal government put an end to the public order emergency declared on Feb. 14th, and approved this past Monday by the House of Commons.

Despite the emergency declaration coming to an end, important questions and issues persist.

The invocation of a public order emergency was an extraordinary response to the multiple crises of border blockades and the occupation of downtown Ottawa – on what is already unceded, occupied Algonquin Anishinaabe territory.

As a civil liberties coalition that focuses on the impact of anti-terrorism laws and national security actions in Canada, we recognize how the implementation of extraordinary state and policing powers can have long lasting impacts, and that temporary measures can become permanently entrenched. Further, as these powers persist, the greatest impact is often on marginalized and vulnerable communities that are already over-policed. It is crucial that even as we recognize the severity of the impact and threat posed by far right movements, that these state powers are scrutinized and that those carrying them out – from politicians to police to private institutions – are kept accountable for their actions.

This includes how protests will be policed going forward. Blockades – in abstraction – are legitimate forms of protest. However, the blockade in Ottawa was accompanied by harassment, threats of physical and sexual violence, assaults, racist violence, incessant noise that were described as torture by downtown residents, and more. Border crossing blockades were also accompanied by threats of violence, along with hateful and white supremacist language and imagery. These acts stand apart from the actions of Indigenous land defenders, anti-racism advocates, and other actions advocating for justice, democracy and emancipation which are almost always met with swift police control, arrests, and often, violence. It is imperative, going forward, that the kinds of violence and threats seen at the blockades not be conflated with protest. Nor should it be allowed to give rise to broader invocations of either the Emergencies Act or the view that protest must be met with extraordinary policing powers.

It also includes surveillance powers, and financial surveillance in particular. Over the past two decades, we have heard many stories of Muslims, and Muslim-led organizations, in Canada facing unaccountable financial surveillance from banking institutions and being de-banked based on vague, unsubstantiated allegations of links to terrorism. It is crucial that powers granted to financial institutions as a result of the emergency declaration not be further deployed against individuals engaged in protest – as opposed to those providing funds that directly support criminal activities. While these powers are ostensibly limited by the time limits placed on emergency powers, their overall impact may continue if appropriate accountability and transparency measures are not put in place.

Our research and advocacy on anti-terrorism laws raises another important concern: that “extraordinary laws” should not be introduced when existing laws suffice. For example, we and others have argued that terrorism-related crimes can be addressed just as well through standard criminal code provisions, if enforced adequately, without the need for a special category of law because of the dangers such special categories entail. This reflects what we have seen with the invocation of the Emergencies Act: if regular powers had been properly utilized earlier on, the need to declare an emergency would likely not have arisen. This speaks to a deep crisis that so many have identified in regards to policing at all levels in Canada, and must be addressed in the aftermath of this declaration of emergency. While it is difficult to adequately assess whether the appropriate legal threshold was met for invoking the Emergencies Act, it is much more clear that we should never have gotten to that point in the first place. We look forward to seeing the result of the Canadian Civil Liberties Association’s court challenge over whether those legal thresholds were met.

Finally, it is impossible to not observe the deep – and warranted – concerns over the invocation of the Emergencies Act in contrast to the acceptance and complacency towards anti-terrorism laws and their impacts on Muslim and other racialized Canadians for the past 20 years. Canada’s anti-terrorism laws have been plagued with some of the very concerns raised over the Emergencies Act – lack of necessity, lack of due process, unaccountable surveillance, extra interrogation, limitations on mobility rights – and yet are accepted on a daily basis. It isn’t too much to say that many Muslim and racialized individuals in Canada have been living under a decades-long state of emergency because of these problematic laws. As we debate the appropriateness of the Emergencies Act, it is well past time that we also question the logic of Canada’s anti-terrorism framework.

Going forward, there must be a vigorous and in-depth examination of the impact of the Emergencies Act. The mandatory inquiry into circumstances leading to the declaration of emergency, and the actions carried out during the emergency, must be convened as soon as possible. Such a review must be carried out in public, must be independent, and those carrying it out must be granted full access to the information necessary to evaluate all aspects of the actions and decisions of both the federal government and government agencies.