Does Jurisprudence for Emergency Measures Support Police Actions at the 2010 G20 Meeting?

8 03 2011

Following the police actions taken in Toronto during the 2010 G20 conference, an opinion has been propagated in the media that the police actions were justified in the same way they were during the 1970 October crisis when the War Measures Act was executed. The current statutes pertaining to police conduct at the G20 meeting have been greatly revised since the October crisis.

Canadian history following the October Crisis shows the hazards to the governance of Canada arising from extraordinary police actions, including fueling the rise of separatism in Quebec, and shows how those hazards became a driving factor in bringing forward the Constitution Act of 1982 (i.e., the Canada Act). Had the Canada Act been enacted prior to the October crisis, the type of police actions taken in response to the October crisis per the War Measures Act would have been substantially limited. Furthermore, in order to address extreme and undue police actions in similar crises, the Emergency Measures Act was passed in 1990 by the Federal government to replace the War Measures Act. The Emergency Measures Act is required to meet the provisions of the Canada Act, including Charter Rights and fundamental rules of justice. To the extent that the Emergency Measures Act may be in conflict with the Canada Act, either in its interpretation or execution, the Emergency Measures Act could be stricken in some measure by the courts, a condition that would not have arisen prior to promulgation of the Canada Act during the period in which the War Measures Act was in place. That is, application of the Emergency Measure Act would be constrained within the powers and limits of the Canada Act.

With the changes made pursuant to the Canada Act, and the Emergency Measures Act, a direct comparison of the legal framework in place between the 1970 October crisis and the 2010 G20 incidents cannot be drawn with respect to statutory regulations governing alleged police misfeasance. In addition, the Emergency Measures Act would require a declaration of the existence of the emergency by the Federal Minister assigned responsibility for administration of the Act as a condition to execute the Act.

Reading down the Emergency Measures Act, it would seem unlikely that a Court would rule that police would be relieved of any legal consequences arising from any breaches of the Police Acts and Criminal Code, in part because there was no declaration of the Emergency Measures Act as is required for its execution, and also because the Emergency Measures Act provides no relief for any police misconduct in breach of the regulations pursuant to the Emergency Measures Act, or in breach of other pertinent statutes unless specifically authorized by the regulations made pursuant to the Emergency Measures Act.

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12 03 2011
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