Threats to the Security of Canada: Same, Same but Different

Abstract

This paper examines the Canadian government's interpretation of the Emergencies Act (EA) and its threshold for declaring a national emergency in response to protest and dissent. The authors revisit their previous article published in Criminal Law Quarterly (CLQ) which raised concerns about the government's novel interpretation of the EA when justifying its use during the Freedom Convoy protests of 2022. Based on evidence presented during a subsequent commission of inquiry and Commissioner Rouleau's final report, the authors analyze the government's legal interpretation of the phrase "threat to the security of Canada" and the inconsistent and ambiguous testimony provided by government officials and Cabinet Ministers. The authors argue that the Commissioner failed to address the most contentious legal arguments offered by the government, particularly the assertion that economic harm can satisfy the requirement for serious damage to property. The paper highlights the ongoing significance of this missed opportunity. The authors offer recommendations for amending the EA to explicitly address economic harm and disruptions to critical infrastructure to ensure that any powers available to address this new type of emergency are sufficiently tailored to meet this very specific threat. Finally, the authors caution against revising the EA or broadening the definition of threats to the security of Canada in the CSIS Act based on the bad facts of the Freedom Convoy protests.