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Safety - Emergencies Act (Canada). Mappin v. Office of the Independent Police Review Director
In Mappin v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court dismisses a JR, here where the applicant "seeks to quash a decision of the Office of the Independent Police Review Director confirming the findings of the Chief of Police for the Ottawa Police Service into her complaint".
Here the court reviews parts of the federal Emergencies Act in the context of the 2022 Ottawa 'Freedom Convoy' protests:[7] On February 6, 2022, the Mayor of Ottawa declared a state of emergency in response to the impact on the city of the assembly. On February 14, 2022, the Governor in Council proclaimed that a public order emergency existed in Ottawa, pursuant to s. 17(1) of the Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.). The proclamation specified the nature of the public order emergency and provided for temporary measures intended to regulate or prohibit any public assembly that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area: February 14, 2022, Declaration of Public Order Emergency.
[8] Section 6 of the Emergency Measures Regulations, SOR/2022-21 (EMRs), enacted pursuant to the Act, granted authority to the police to secure “protected” places, including:(a) critical infrastructures;
(b) Parliament Hill and the parliamentary precinct as they are defined in section 79.51 of the Parliament of Canada Act;
(c) official residences;
(d) government buildings and defence buildings
(e) any property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery;
(f) any other place as designated by the Minister of Public Safety and Emergency Preparedness.
[9] Section 4 of the EMRs was considered in the investigation, and by the Director, as discussed below. This section provides:4 (1) A person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place.
(2) A person must not cause a person under the age of eighteen years to travel to or within 500 metres of an area where an assembly referred to in subsection 2(1) is taking place.
(3) A person is not in contravention of subsections (1) and (2) if they are
(a) a person who, within of the assembly area, resides, works or is moving through that area for reasons other than to participate in or facilitate the assembly;
(b) a person who, within the assembly area, is acting with the permission of a peace officer or the Minister of Public Safety and Emergency Preparedness[.] The balance of the case is useful for studying this rarely-used statute.
. Jonker v. Township of West Lincoln
In Jonker v. Township of West Lincoln (Div Court, 2023) the Divisional Court, in the course of a motion to add a municipal Integrity Commissioner to a JR, considered the federal Emegencies Act here in the context of the recent trucker's protests:[49] The Commissioner reasonably determined that the demonstration had become unlawful by the time the Government of Canada invoked the Emergencies Act on February 14, 2022. Further, the Commissioner concluded that the applicant breached the Code of Conduct by his continued participation in the demonstration after it was declared unlawful. The Commissioner did not make a determination as to whether the applicant breached the Code of Conduct for his participation in the demonstration prior to the date the Emergencies Act was invoked.
[50] In this case, the Commissioner did not have the option to conclude that the Government of Canada’s decision to invoke the Emergencies Act was wrong. That conclusion – questioning the appropriateness of a Cabinet decision from a different level of government concerning a matter wholly outside the scope of the Integrity Commissioner’s mandate and enabling statute and bylaw – would have been plainly ultra vires the Commissioner. In that context, it was the only reasonable conclusion open to the Commissioner at the time.
[51] As the Commissioner stated to Council and the applicant at the meeting on July 18, 2022, should a court ultimately deem the demonstration to have been lawful even after the invocation of the Emergencies Act, it would then be open to Council to reverse, revoke, or amend its decision to impose penalties and remedial measures on the applicant.
[52] Second, it was not open to the Commissioner to consider whether the Government of Canada’s invocation of the Emergencies Act, and the related designation of the protest as unlawful, limited the applicant’s Charter rights. At its highest, the applicant’s argument appears to be that his Charter rights prohibited the Government of Canada from declaring the demonstration unlawful by invoking the Emergencies Act, and that the Commissioner’s Report is unreasonable to the extent it accepted the constitutionality of the legislation. As mentioned, given the Commissioner’s limited role or scope of review, it would have been ultra vires the Integrity Commissioner to conclude that a Cabinet decision – from a different level of government regarding a matter outside the scope of the Integrity Commissioner’s mandate and enabling statute – was unconstitutional.
[53] Indeed, it is left for another day and forum wherein a court of competent jurisdiction will be in a position to decide whether the Government of Canada’s decision to invoke the Emergencies Act was legal or appropriate and at what point the demonstration ceased being lawful.
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