OTTAWA – On February 14th, 2022, the Government of Canada declared a national emergency under the Emergencies Act. Although the declaration of emergency was revoked nine days later, questions remain about the circumstances leading up to the use of the Emergencies Act and whether its use was legally justified.
Amnesty International previously expressed concern about the impacts of the protest on people from marginalized communities. We emphasized that peaceful protests are a fundamental part of a vibrant society and noted that protecting the right to protest contributes to the protection of other human rights. However, the rights to free expression and assembly under international law are not absolute.
Amnesty International questions the government’s reliance on the Emergencies Act to address the Ottawa convoy protests. The powers contained in the Act are extraordinary, which is why they can only be resorted to in extremely narrow, prescribed circumstances. To invoke the Public Order Emergency, as the government did, it must have believed that the lives, health, or safety of Canadians had been seriously endangered, and that neither the provinces, nor existing laws, could deal with that danger. Without knowing the evidence that the government relied on to support this belief, it is difficult to assess whether the threshold was met.
However, Amnesty previously noted with concern the largely permissive response the Ottawa police had to the protest in the weeks leading up to the invocation of the emergency. The apparent inaction by the Ottawa police does not lead to the conclusion that expanded powers were necessary, and instead calls into question whether existing powers could have been used to appropriately address the situation. The rule of law does not allow the government to expand its powers when it is convenient, even when faced with a difficult situation. Until the legal threshold is met, governments and police are required to respond using their existing powers.
International law also recognizes the possibility that certain rights may be limited if an emergency “threatens the life of the nation”, but only allows rights to be limited to the extent required by the situation. While it is again difficult to assess whether the threshold was met, it is apparent that the rights of people in Canada were not narrowly limited, as the emergency was not limited to specific protests or geographic locations and instead applied across the country.
Amnesty International is concerned about whether the use of the Emergencies Act was legally justified in this instance, and about the implications of the use of the Act for future protests. Because law enforcement powers are used disproportionately against marginalized groups, normalizing the expansion of these powers sets a dangerous precedent for future protests by marginalized groups, who may rely on disruptive tactics to exercise their freedom of assembly and right to protest.
Under the Emergencies Act, the government is now required to hold an inquiry into the circumstances that led to the declaration of an emergency and the measures taken for dealing with the emergency. Amnesty International calls on the Special Joint Committee on the Declaration of the Emergency to carry out the inquiry in a transparent, timely, and non-partisan manner and to ensure that meetings are held in public, except where explicitly prohibited by the Act. We urge the Committee to recall Canada’s obligations under international and domestic law, and to consider whether the restrictions implemented under the Emergencies Act were rights-maximizing and legally justified.