Opinion: Even after being revoked, the Emergencies Act is creating a chill on charities

Prime minister Justin Trudeau’s unwarranted and arguably illegal use of the Emergencies Act has created a crisis for some Canadian public interest groups, and it is unclear if the revocation of the emergency will undo that damage.

The Canadian Constitution Foundation (CCF) is a legal charity dedicated to defending fundamental freedoms in the courts of law and public opinion. The CCF is one of the organizations challenging the federal government’s invocation of the Emergencies Act on the basis that the criteria set out in the act was not met, and that the orders under it were unjustified violations of the Charter of Rights and Freedoms.

Since announcing the challenge, the CCF has been inundated with interest about the case — so much that its website crashed due to the surge in traffic. The public response to the CCF’s legal challenge was overwhelmingly supportive, but one disturbing trend has emerged: a widespread fear that donating to causes that advocate for fundamental freedoms and civil liberties, and challenge government overreach, will result in the freezing of bank accounts and seizing of assets.

While this fear is misplaced, the cause is clear: one of the most controversial aspects of the invocation of the Emergencies Act was the enactment of economic measures that require banks to disclose otherwise private banking information to the police.

These economic regulations under the Emergencies Act were unprecedented in their scope and impact. Section 5 of the Emergencies Measures Regulations states: “A person must not, directly or indirectly, use, collect, provide, make available or invite a person to provide property to facilitate or participate in any assembly … for the purpose of benefiting any person who is facilitating or participating in such an activity.”

As the House of Commons finance committee heard recently, these measures would allow police to freeze bank accounts of those suspected of donating to the protests without a warrant or court order. On the plain text of the regulations, even a $20 donation could result in accounts being frozen. This caused a panic among many members of the public.

For example, the CCF has received countless emails and tweets from concerned individuals who are interested in donating to the legal challenge, but concerned that it could result in their accounts being arbitrarily frozen.

“I’d love to donate, but I have a family to support and can’t risk my accounts being frozen,” one individual with a PhD in economics lamented via text message to the CCF’s executive director, Joanna Baron. A local Toronto artist named Lisa Ng said, “I’m genuinely worried I’m gonna paint the wrong thing and get my bank account frozen. Maybe not today, maybe not tomorrow but sometime in the future.”

To be clear, even using the broadest possible interpretation of the regulations as drafted, a donation to a legal challenge of the Emergencies Act poses no risk of law enforcement actions. And in any event, they’ve now been revoked.

The measures were over-broad and, the CCF hopes to show, unconstitutional. However, they have created an even larger chilling effect by raising the spectre — through the almost comically vague language of “directly or indirectly” supporting illegal assemblies — that supporting any actions even tangentially related to the events of the last month could result in frozen accounts.

The CCF’s challenge, and those of others such as the Canadian Civil Liberties Association, has no connection to the protesters or their organizers. The challenge takes issue with whether the basic statutory requirements required to invoke the Emergencies Act were met, given that the act requires that authorities are not able to deal with the emergency under “any other law in Canada.” It queries the proper scope of executive authority and the correct interpretation of an act that has never been used before in Canadian history.

Yet the erosion of liberties happens not just by outright prohibition, but also by the chill created by the perception that the government is willing to take draconian and arbitrary actions to silence its opponents. The CCF relies entirely on voluntary donations to do its work. By creating this chill, the prime minister is undermining the very organizations that are best positioned to fight back against him.

At the House finance committee, Isabelle Jacques, an assistant deputy minister in the Department of Finance, was asked why the federal government felt the need to declare an emergency when existing laws could also be used to freeze illegal donations, as they were in Ontario under Sec. 490.8 of the Criminal Code. Her answer: to “make an impression upon those considering offering financial support.”

In other words, the government was using scare tactics and over-broad laws to discourage law-abiding Canadians from supporting causes they deem worthy. And as the financial chill some charities are currently experiencing shows, it’s working far too well.

National Post

Christine Van Geyn is the litigation director and Joanna Baron is the executive director of the Canadian Constitution Foundation.

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