An economic national threat

During the last day of the Public Order Emergency Commission’s public hearings, its co-lead Counsel Shantona Chaudhury asked Prime Minister Justin Trudeau this question.

Chaudhury framed her question by referring to Public Safety Minister Marco Mendicino’s Section 58 report to Parliament, much of which focused on the economic consequences of the protest and its economic disruptions. She might have raised Deputy Prime Minister and Finance Minister Chrystia Freeland’s testimony extensively detailing how the occupation and blockades were “profoundly jeopardizing” the economy. Freeland had testified about the warning from U.S. President Joe Biden’s top economic adviser that closure of all northeastern American car plants was immanent because of the shut-down of the Windsor-Detroit Ambassador Bridge. Freeland said, “I could see really for the first time ever the Americans having this amber light flashing in Canada, and this amber light said to them … that the Canadian supply chain could be a vulnerability to them.”

Leading into her question, Chaudhury contrasted the prime minister’s testimony, much of which had relied on threats of serious violence as his rationale for invoking the Emergencies Act. Trudeau responded by explaining that economic security fit as “a piece” of the picture, “[b]ut it was an additional concern on the situation, it wasn’t the primary or foundational one.”

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Read more on this topic: 'Freedom convoy' - The good, the bad, and the ugly constitutional aspects

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His explanation is consistent with his call (and that of others in his government) for the Public Order Emergencies Commissioner Judge Paul Rouleau to expand the meaning of “threats to the security of Canada” required by the definition of a “public order emergency” in section 16 of the Emergencies Act. Otherwise, the relevant test would be limited to section 2 of the Canadian Security Intelligence Service Act which addressed only activities “directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective in Canada or a foreign state.” The director of CSIS testified that the agency had not applied this test to investigate the protests.

While Trudeau did not explicitly link his call to expand the meaning of “threats to the security of Canada” to include economic security, neither did he elaborate on any other way to expand it. Moreover, in his letter to the premiers, he signaled compliance with the definition of a “national emergency” in section 3(b) of the Emergencies Act by expressly expanding “security” to include “undermining our economic and national security” (‘economic disruptions’, ‘breakdown of supply chains’, ‘costing Canadians their jobs’, ‘reputation internationally, hurting trade and commerce’), along with implicitly “preserving … sovereignty” (‘threats to our democracy and … the public’s trust in our institutions’) and “territorial integrity”(‘activities … have gone well beyond peaceful protest…. volatile’, ‘flare-ups in almost every jurisdiction’).

Since no one would call our prime minister shy, why was he reticent about prioritizing economic security? Did the confidential legal advice from the Department of Justice recommend against it?

Did someone in this department delve into the archives to find a certain working paper entitled “Bill C-77: An Act to Provide for Safety and Security in Emergencies”, that reviewed the policy, constitutional and legal basis for the Emergencies Act? That 1987 working paper took economic emergencies seriously a decade after the Anti-Inflation Reference case in which the Supreme Court of Canada decided “that accelerating inflation could constitute a national emergency within the meaning of the ‘Peace, Order and good Government’ clause of Section 91 of the Constitution Act 1867.” The court also held that “[o]ther economic conditions, whether international or domestic in origin, may give rise to similarly acute crises and require emergency measures”.

The working paper advised that an economic emergency might require measures such as: “ordering and enforcing the imposition of emergency taxes, financial moratoria, and other related fiscal measures; imposing and enforcing wage and price controls; directing and controlling the operation of banking and related financial services; imposing and enforcing exchange controls; controlling the production, distribution sale, and use of any designated commodity, good, or product; ordering the restoration and operation of essential services, utilities, or industries; controlling imports or exports of designated products; compelling the assistance of the private sector [think tow truck operators] in implementing these measures.”

Given these and other considerations raised in the working paper, why did the author(s) simply accept that the proposed Emergencies Act “is not broad enough to cover all the contingencies which could give rise to an economic emergency”? Why not propose revising it? The answer: “such situations usually develop over a period of time, rather than occurring suddenly…. It would seem preferable to deal with economic emergencies by means of carefully drawn special legislation, tailored to fit the particular case at the time.” It is hard to imagine that this reasoning sits lightly with the current Department of Justice.

However, faced with the working paper’s resistance to reading economic security into the Emergencies Act, did this current Justice Department have any alternative other than to advise Trudeau not to prioritize it even if it proved more difficult to meet the evidentiary threshold for “serious violence?” Seemingly not. It would be a stretch to analogize as law the Emergency Measures Regulations and the Emergency Economic Measures Order to the economic crisis legislation validated in the Anti-Inflation Act Reference under the POGG emergency power.