Q & A from Constitutional Expert on the E.A..

[Babba_not_Gump]

Prof. Ryan Alford answers question regarding the implementation of the Emergencies Act.

https://tarahenley.substack.com/p/a-lay ... source=url

For those that don't want to read the entire article, here are some of his findings and thoughts.

The federal government has no jurisdictional basis for any of this. Which is to say that we’re in a huge crisis of the rule of law. It has done something that it has no constitutional power to do. What the Emergencies Act does is empower the federal government to take over powers, assigned under the Constitution, to the provinces.

In essence, what the government has done is falsely asserted that conditions exist that allow it to declare a state of emergency. And in making that false declaration, it has assumed powers to itself that it doesn’t have under the Constitution of Canada.

And has used those regulations to infringe the Charter rights of Canadians.

So just as we are subject to the criminal code, the government is subject to the Constitution. The Constitution doesn’t govern citizens, it is the law that governs those that govern us. If the government violates the Constitution, and in such an egregious way as it is with the Emergencies Act, what is the basis for them saying that the citizenry should obey the law? The problem is people understand that.

Now to see if the Senate passes the Emergencies Act.

[Catsumi]

^^^. Good find bb49

[Babba_not_Gump]

Now we're waiting for the constitutional experts here on castanet to chime in.

[hobbyguy]

Prof. Ryan Alford answers question regarding the implementation of the Emergencies Act.

https://tarahenley.substack.com/p/a-lay ... source=url

For those that don't want to read the entire article, here are some of his findings and thoughts.

The federal government has no jurisdictional basis for any of this. Which is to say that we’re in a huge crisis of the rule of law. It has done something that it has no constitutional power to do. What the Emergencies Act does is empower the federal government to take over powers, assigned under the Constitution, to the provinces.

In essence, what the government has done is falsely asserted that conditions exist that allow it to declare a state of emergency. And in making that false declaration, it has assumed powers to itself that it doesn’t have under the Constitution of Canada.

And has used those regulations to infringe the Charter rights of Canadians.

So just as we are subject to the criminal code, the government is subject to the Constitution. The Constitution doesn’t govern citizens, it is the law that governs those that govern us. If the government violates the Constitution, and in such an egregious way as it is with the Emergencies Act, what is the basis for them saying that the citizenry should obey the law? The problem is people understand that.

Now to see if the Senate passes the Emergencies Act.

And perhaps this is a good thing then that the feds have finally used the emergencies act passed by the Conservatives and the senate in the 1980s.

The court challenges will indeed clarify the whole mess, and remove the conflicting opinions and noise from the situation.

Given that the war measures was never unconstitutional, and that the 1982 Constitution did not vary hugely, it is tricky to see how the emergencies act - which is less draconian than the war measures act -would be unconstitutional. However, that determination is well beyond my pay grade.

As to whether or not the government has falsely brought the emergencies act into play, there are obviously divided opinions on that. Once again the courts will decide, and the envelope for use of the emergencies act will be defined.

As an objective point, it seems to me that the federal government ought to have options along the lines of the emergencies act for use in such exigencies as insurrection etc. Without such options the possibilities for anarchy rise considerably and anarchy is entirely undesirable.

As to the infringement of rights within the charter, that has always and is covered under section 1 of the charter. Courts have already cited that when faced with challenges to pandemic mandates. The key to that is whether or not the exigency meets the requirements of section 1. The Manitoba decision on pandemic mandates stated that yes, while there is some impingement of some rights within the charter by pandemic mandates, the impingement was justified and met the requirements of section 1 of the charter, which under loosely defined circumstances allows impingement of other sections of the charter.

And never mind the reality of the notwithstanding clause, which Quebec has used to make its secularism law stand despite being in violation of other sections of the charter (and viewed by many to be discriminatory).

Canadian constitutional positions and citizen rights are quite loose compared to most republics. Example: unlike US states, Canadian provinces do not have formal constitutions. That simple fact raises a question, which I can't answer, about what the professor says. If the provinces do not define their constitutional powers by having constitutions, then how can the federal government usurp them? That's more of a logic question than a legal one.

It will be interesting to see how this plays out in the courts. And valuable for Canada and Canadians to get clarity.

[rustled]

IMO it is NEVER ok in a free country to excuse a government for arresting people and freezing their bank accounts, with

"perhaps this is a good thing then that the feds have finally used the emergencies act passed by the Conservatives and the senate in the 1980s. The court challenges will indeed clarify the whole mess, and remove the conflicting opinions and noise from the situation."

This government has gotten a free pass from accountability by pushing the envelope on testing what powers they can assert over the people, AND by pushing the envelope on how well they can skirt the law. Here's the pith of it:

cabinet can continue to issue regulations that have the force of law, without any oversight from Parliament, for 30 days beginning with the proclamation of the Emergencies Act last week.

I suspect what will play out is that this government will, as it always has, get away with what they've done. And the consequences of us having allowed them to get away with all of their ethics violations and infringements and wrongdoing - but most particularly the consequences of our government getting away with THEIR USE OF THE EA TO QUASH A CITIZENS' PROTEST AGAINST THEIR USE OF UNNECESSARY MANDATES TO BEND THE CITIZENS TO THEIR WILL, will play out for a very long time.

[techrtr]

A law professor well versed in the Constitution was interviewed about the EA several times on CBC. He said unequivocally that the EA did not violate the Charter. Lawyers are not above taking a dissenting view for any number of reasons.

[rustled]

A law professor well versed in the Constitution was interviewed about the EA several times on CBC. He said unequivocally that the EA did not violate the Charter. Lawyers are not above taking a dissenting view for any number of reasons.

The CBC, huh?

We learned only a few years ago from someone under oath that Katie Telford assured JWR she shouldn't be nervous about doing what the government had no business asking her to do because the PMO had all kinds of people lined up to write op eds that would convey to the public the notion what they were doing vis a vis SNC-L was "proper".

I do not think people still defending this PMO understand what we are all up against now.

[foenix]

I suspect what will play out is that this government will, as it always has, get away with what they've done. And the consequences of us having allowed them to get away with all of their ethics violations and infringements and wrongdoing

Yeah I agree, whoever is in power does get away with whatever they want. I still remember the arrogance of the Harper year in doing whatever they wanted to do. That's why he was punted out for JT in 2015. The solution is simple, instead of whining about it, why not make sure your party gets back in power so that they too can do whatever they want once they get in.

[techrtr]

I suspect what will play out is that this government will, as it always has, get away with what they've done. And the consequences of us having allowed them to get away with all of their ethics violations and infringements and wrongdoing

Yeah I agree, whoever is in power does get away with whatever they want. I still remember the arrogance of the Harper year in doing whatever they wanted to do. That's why he was punted out for JT in 2015. The solution is simple, instead of whining about it, why not make sure your party gets back in power so that they too can do whatever they want once they get in.

Well then, he didn't get away with anything he wanted, did he? Prime Ministers cannot do whatever they want. Even a dictator like Vladimir Putin can't do whatever he wants. BTW, compared to the current crop of Conservatives, Harper looks like Churchill or Kennedy.

[Sparki55]

Yeah I agree, whoever is in power does get away with whatever they want. I still remember the arrogance of the Harper year in doing whatever they wanted to do. That's why he was punted out for JT in 2015. The solution is simple, instead of whining about it, why not make sure your party gets back in power so that they too can do whatever they want once they get in.

Hobbyguy hinted at it and you just said it blatantly.

This isn't a party issue, it's always been about a corrupt government. I wouldn't support these measures used by any government.

Discuss the topic, don't make this into a "if the conservatives did it you wouldn't care".

[rustled]

Well then, he didn't get away with anything he wanted, did he? Prime Ministers cannot do whatever they want. Even a dictator like Vladimir Putin can't do whatever he wants. BTW, compared to the current crop of Conservatives, Harper looks like Churchill or Kennedy.

Harper prorogued parliament.

Trudeau has not only prorogued parliament, he has also sicced the militarized police on the citizens protesting his government's unnecessary mandates, and invoked the EA . If the senate approves it, Trudeau's cabinet

can continue to issue regulations that have the force of law, without any oversight from Parliament, for 30 days beginning with the proclamation of the Emergencies Act last week

Trudeau has financially sanctioned citizens protesting against him - and people supporting that protest - by freezing their access to their accounts.

Pretty close now to getting go do whatever HE wants, isn't he?

[techrtr]

Well then, he didn't get away with anything he wanted, did he? Prime Ministers cannot do whatever they want. Even a dictator like Vladimir Putin can't do whatever he wants. BTW, compared to the current crop of Conservatives, Harper looks like Churchill or Kennedy.

Harper prorogued parliament.

Trudeau has not only prorogued parliament, he has also sicced the militarized police on the citizens protesting his government's unnecessary mandates, and invoked the EA . If the senate approves it, Trudeau's cabinet

can continue to issue regulations that have the force of law, without any oversight from Parliament, for 30 days beginning with the proclamation of the Emergencies Act last week

Trudeau has financially sanctioned citizens protesting against him - and people supporting that protest - by freezing their access to their accounts.

Pretty close now to getting go do whatever HE wants, isn't he?

Not at all. It went to a vote and passed - that's how a democracy works. If it hadn't passed, that probably would have been the beginning of the end of the current Liberal govt. Then the Cons would have had their chance to completely mess things up and alienate everyone including their current fan base.

[foenix]

Yeah I agree, whoever is in power does get away with whatever they want. I still remember the arrogance of the Harper year in doing whatever they wanted to do. That's why he was punted out for JT in 2015. The solution is simple, instead of whining about it, why not make sure your party gets back in power so that they too can do whatever they want once they get in.

Well then, he didn't get away with anything he wanted, did he? Prime Ministers cannot do whatever they want. Even a dictator like Vladimir Putin can't do whatever he wants. BTW, compared to the current crop of Conservatives, Harper looks like Churchill or Kennedy.

I was going for irony here tech in reply.....of course they can't especially in a minority government but some can't see that apparently.

[rustled]

Harper prorogued parliament.

Trudeau has not only prorogued parliament, he has also sicced the militarized police on the citizens protesting his government's unnecessary mandates, and invoked the EA . If the senate approves it, Trudeau's cabinet

• can continue to issue regulations that have the force of law, without any oversight from Parliament, for 30 days beginning with the proclamation of the Emergencies Act last week

Trudeau has financially sanctioned citizens protesting against him - and people supporting that protest - by freezing their access to their accounts.

Pretty close now to getting go do whatever HE wants, isn't he?

Not at all. It went to a vote and passed - that's how a democracy works. If it hadn't passed, that probably would have been the beginning of the end of the current Liberal govt. Then the Cons would have had their chance to completely mess things up and alienate everyone including their current fan base.

It passed because Singh wanted it to. Singh has never yet held Trudeau to account, and there's no reason to expect him to suddenly start doing so now.

(Also, there's no guarantee that if it had failed to pass in the House of Commons, the GG would have collapsed the government, nor is there any reason to assume Conservatives would have formed the next government.)

The EA suspends parliamentary oversight. Again! That's NOT how democracy works.

[techrtr]

Well then, he didn't get away with anything he wanted, did he? Prime Ministers cannot do whatever they want. Even a dictator like Vladimir Putin can't do whatever he wants. BTW, compared to the current crop of Conservatives, Harper looks like Churchill or Kennedy.

I was going for irony here tech in reply.....of course they can't especially in a minority government but some can't see that apparently.

Oh, gotcha.