I witnessed the creation of the Emergencies Act. It shouldn’t have been invoked in Ottawa: Professor David Schneiderman

In an op-ed for the Globe & Mail, published Feb. 22, Faculty of Law Professor David Schneiderman writes about the government's decision to invoke the Emergency Act: 

I was present during the negotiations around the federal Emergencies Act in 1987. As one of two full-time lawyers at the Canadian Civil Liberties Association at the time, I witnessed firsthand how Alan Borovoy, the CCLA’s then-general counsel, managed to shape the contours of this scheme. And I saw how the end product was a carefully calibrated piece of legislation with checks at every turn.

It’s why I believe the Emergencies Act was not a legally suitable instrument for removing unwelcome occupiers on Ottawa’s streets.

The objective of Brian Mulroney’s government in 1987 was to bring Quebec back into Canada’s constitutional fold by drawing sharp contrasts with that of his predecessor as prime minister, Pierre Trudeau. There would be two limbs to this strategy: first, having first ministers agree to a new constitutional settlement, represented by the Meech Lake Accord – a colossal failure, it turns out. The second prong was the repeal of the discredited War Measures Act and replacing it with an instrument better tuned to addressing emergencies such as the October Crisis of 1970. This turns out to have been the less troublesome prong.

It was in furtherance of replacing the War Measures Act that then-defence minister Perrin Beatty reached out to the CCLA to seek its input into draft replacement legislation. The CCLA’s principal aim was to curb what Mr. Borovoy called the “power-hoarding fallacy,” understanding that historically, Canadian governments have preferred to seize far more power than is reasonably needed in a crisis. The main thing was to avoid the blank cheque afforded to government under the War Measures Act. So in negotiations for a replacement act, the CCLA worked to restrict the government’s ability to manoeuvre in emergency situations to only what was absolutely necessary and to create safeguards to prevent the abuse of those fenced-in powers.

Read the full op-ed in the Globe & Mail