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The invocation of the Emergencies Act to quell the trucker protest and occupation of Ottawa continues to raise legal and constitutional issues. One of these is the scope of our constitutional protection against “unreasonable search and seizure”.

In invoking the Emergencies Act, the Liberal government enacted the “Emergency Economic Measures Order”. This order required financial institutions to search their records for customers suspected of “directly or indirectly” engaging in a “public assembly that may reasonably be expected to lead to a breach of the peace,” [i.e. the trucker occupation] or “directly or indirectly” using their money to facilitate such protests, and then seize their financial accounts.

The argument is being made that the Emergency Economic Measures Order amounted to a general warrant, or a writ of assistance, enlisting banks to help the Trudeau government hunt down their political enemies and seize their bank accounts:

[a] Historically general warrants and writs of assistance were considered to amount to acts of tyranny and were a major cause of the American Revolution.

[b] Unreasonable searches and seizures by government are prohibited by Section 8 of the Canadian Charter of Rights and Freedoms.

[c] Section 8 is intended to keep us secure against unreasonable searches and seizures by the executive, by requiring judicial oversight of government action. That is, by requiring specific search and seizure warrants from an independent judiciary, based on reasonable grounds that a specific offence had been committed by a specific person.

The counter argument is that the Emergency Economic Measures Order was reasonable limitation on section 8 of the Charter based on exigent circumstances - to counter a national emergency which “endangered the lives, health or safety of Canadians”

At our next meeting we will be discussing the historical background to this issue and the Canadian cases which interpret and apply the constitutional prohibition of unreasonable search and seizure.

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