The Emergencies Act

INTRODUCTION

When Prime Minister Pierre Elliott Trudeau invoked the War Measures Act in mid-October 1970 in response to a request by Quebec Premier Robert Bourassa, I was a grad student in Political Science at McMaster University. Justification was the “state of apprehended insurrection” existing in the province. Some of us posted a petition against its invocation in a hallway near our offices; someone tore it down, and we put it up again. We protested. In fact, protesting was illegal under the War Measures Act, but no one outside Quebec bothered about that. I remember telling people I knew that everyone’s civil liberties were suspended, even if the Act really had relevance only for Quebec. They weren’t concerned: they didn’t live in Quebec. How does the government’s invocation of the Emergencies Act (“the Act”) compare?

(I have supplemented my own memory of the October crisis from the Canadian Encyclopedia, from which I took the quotations below.)

    The October Crisis and the War Measures Act

The threat facing Canada in 1970 came from a group of separatists, the Front de libération du Québec (felquistes), who “[b]etween 1963 and 1970, … were responsible for more than 200 bombings and dozens of robberies that left six people dead”. Among other acts, they put bombs in mailboxes and kidnapped two men, James Cross, the senior British Trade Commissioner in Montreal, and Pierre LaPorte, a member of the Quebec provincial cabinet. They murdered LaPorte (possibly by accident) and released Cross after two months, with the government granting his kidnappers safe passage to Cuba. When they returned to Canada, they were convicted of kidnapping and sentenced to between 12 and 24 months, although others, who had not gone to Cuba, received higher sentences.

Prior to the invocation of the War Measures Act, there were some 20 FLQ members in jail for various instances of violence.

Regulations under the War Measures Act provided that “the FLQ was outlawed and membership became a criminal act; normal civil liberties, including habeas corpus, were suspended, and arrests and detentions were authorized without charge”.

Subsequently, “the federal cabinet gave ambiguous instructions to the RCMP Security Service; dubious acts such as break-ins, thefts and electronic surveillance were permitted, all without warrants”, acts two commissions later declared illegal.

The War Measures Act gave the federal government powers “to maintain security and order during ‘war, invasion or insurrection’”. Cabinet had the power to do what was necessary as

may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:-

(a) censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;
(b) arrest, detention, exclusion and deportation;
(c) control of the harbours, ports and territorial waters of Canada and the movements of vessels;
(d) transportation by land, air, or water and the control of the transport of persons and things;
(e) trading, exportation, importation, production and manufacture;
(f) appropriation, control, forfeiture and disposition of property and of the use thereof. (Wikipedia)

Whatever the other merits or demerits of the invocation of the War Measures Act might have been, it led to serious abuse in the arrest of some 250 people who had expressed separatists sentiments and about the same number under the Public Order Act (“POA”), which replaced the War Measures Act on December 1, 1970. Of those arrested, the authorities charged 62. The POA was in force until April 30, 1971.

Eventually, the Quebec government compensated some 100 people who were “unjustly detained”.

    Events Leading to Invocation of the Emergencies Act
      Border Blockades

The circumstances in Ottawa and the border blockades at the Windsor/Detroit Ambassador Bridge and at the Coutts, Alberta/Sweetgrass/Montana and the Surrey, BC/Blaine, Washington border crossings led to the invocation of the Emergencies Act.

An injunction with police enforcement ended the blockade at the Ambassador Bridge after six days on February 13, 2022, two days after the court issued the injunction.

The discovery of weapons and ammunition at Coutts resulted in the protestors there leaving voluntarily after 18 days, on February 15th, singing O’Canada and shaking hands with and hugging police. (For a report of arrests and RCMP actions at Coutts, see a Global News report here and Calgary Herald here.) At one point, Coutts blockaders opened two lanes of the highway when they thought they had an agreement to eliminate Alberta’s vaccine passport requirement, but closed them again when that didn’t happen. (For one view of Premier Kenney’s early approach, empathising with those blockading the border, see Max Fawcett here.)

The RCMP and participants peacefully ended a blockade at the Emerson, Manitoba border after six days on February 16th. The blockade in Surrey seems to be continuing on an intermittent basis.

      Ottawa “Situation”

In relation to the Ottawa situation in particular, one of the issues is language. Whatever term is used is loaded to some extent. Consistent with the participants’ vision and PR (and perhaps their experience), the use of the terms “protesters” and “protest” suggests a peaceful, manageable event, even a fun time. “Truckers anti-vaccine mandate protest” and “trucker convoy” or “Freedom Convoy” imply that the reason for the “protest” was the requirement the federal government imposed on truckers crossing the Canadian/US border to be vaccinated or to quarantine for 14 days (shortly before the US imposed its own requirement), somewhat belatedly in the pandemic. In my view, shared with others, however, these terms do not capture the full nature of what was happening in Ottawa.

I will use “occupation” and “occupiers”, since taking over the downtown of a city and harassing residents in various ways is more than a “protest”: it is an occupation. Nor am I satisfied that the opposition of a minority of truckers to the vaccine mandate was the underlying cause of the occupation.

It quickly became clear that the objective was the elimination of all pandemic protections, urged on by the promises of some premiers. Significantly, the organizers, at least one a member of Canada Unity (see here on the organizers), were committed to undermining the government of Canada, replacing the Prime Minister and involving themselves in a government of the Senate and Governor General, an objective identified before this “convoy”. They hijacked what might have been the intention of truckers opposed to the vaccine mandate at the beginning.

As the Global News report pointed out,

Organizers have crafted a “memorandum of understanding” demanding that the appointed Senate and the Governor General effectively usurp the authority of the elected government and do away with all vaccine mandates and other public health restrictions — a constitutional impossibility.

For the MOU, see here; this link refers to December 3 (presumably 2021). Canada Unity, responsible for the MOU, withdrew it on February 8, 2022, ostensibly to avoid any misunderstanding of their objective. (Also see here for an explanation of what its intent was by one of the organizers.) The organizers expected to talk with the Prime Minister to negotiate over the removal of Covid-19 protections and one of the organizers declared on February 8th that he was “willing” to sit down with anyone, including the Governor General: see video here included in a Tweet posted by Justin Ling.

Despite stating there were withdrawing their MOU for a new system of government, the objective did not change. The cry was for revocation of all Covid-19 protections, not only the vaccine mandate for cross-border truckers. And it appears that, despite the many trucks driven into the city, many of the participiants were not truckers.

(For a timeline, see Ottawa Citizen report; also see a Reuters report, headed “Ottawa’s sleepy core transformed into protest street party”, beginning with the “fun” of the protest followed by impact on Ottawa residents in the area here and a National Observer report earlier in the blockade here; see commentary on police action prior to invocation of the Emergencies Act here and after here.)

The federal government invoked the Emergencies Act on February 14, 2022 and published its Proclamation in The Canada Gazette on February 15, 2022. It also registered the orders under the Act on February 15th (see Emergency Measures Regulations (SOR/2022-21) under the Emergencies Act.)

The Ottawa occupation came to an end by February 19th with police action by police forces brought in from across the country. Citing the PMO, Politico Ottawa Playbook stated in its February 21, 2022 issue that “’Over the past few days, there have been close to 200 arrests, 389 criminal charges have been laid and a total of 76 vehicles were towed.’”

THE EMERGENCIES ACT

The Emergencies Act has some important differences from the War Measures Act. Enacted in 1988, introduced by the Mulroney government, it reflects changes in the legal and political spheres since the invocation of the War Measures Act, although its full title makes it obvious that the intent is to allow the federal government to impose broad powers: “An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof.” As the preamble bluntly explains, the powers under the Act permit “special temporary measures that may not be appropriate in normal times”.

At the same time, the Act’s Preamble carefully places it within these changes and carries an “assurance” that despite its broad authorizing powers, the Act must be employed within important restraints. In this sense, the Preamble performs a “persuasive” function, seeking to satisfy citizens that despite the potential foreboding of the Act, it still respects fundamental values. Roach includes the Emergencies Act in a group of preambles included in “‘foundational’ ” legislation that relates to fundamental characteristics of the country” (Kent Roach’s “The Uses and Audiences of Preambles in Legislation“, p.138.)

    Powers Under the Act

The Act binds both the federal and provincial governments (Emergencies Act, s.2(1)). It applies to a “public welfare emergency”, which does not apply here, but might have been employed to address the Covid-19 pandemic, an “international emergency” and a “war emergency” (neither of which applies here) and a “public order emergency”, the basis of the government’s declaration.

However, prior to determining the nature of the emergency, it is necessary to determine whether there is indeed a “national emergency”. One reason why the federal government’s invocation of the Act is a matter of controversy because there is dispute over whether the occupation of Ottawa and the border blockades constituted a “national emergency”. The circumstances that could legitimately lead to its invocation must be, as they should be, serious, not otherwise amenable to resolution through ordinary mean:

For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada. (Emergencies Act, s.3)

(All citations are to the Emergency Act unless I indicate otherwise.)

A public order emergency is “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency”. The basic question is whether the Ottawa occupation, since the Ambassador Bridge and Coutts blockades had ended shortly before the invocation of the Act, but after Prime Minister Trudeau announced on February 14th, that he planned to invoke the Act, constituted a “threat to the security of Canada [that] is so serious as to be a national emergency”.

To invoke the Act, the federal government must consult with the provinces “in which the effects of the emergency occur”.

Some would argue that by the time the government declared the emergency, its effects applied only in Ontario. If that were the case, the federal cabinet could not invoke the Act unless Ontario had indicated that it could not handle the matter because of lack of capacity or authority. (s.25) And if the declaration invoking the Act identifies only a specified area, any actions the government take must be confined to that area (s.19(2)).

The federal view, however, is that the emergency existed across the country. The Prime Minister therefore consulted with the premiers of the provinces and with the commissioners of the territories; the premiers of Quebec, Alberta, Saskatchewan and Manitoba all indicated they did not approve of the invoking the Act or having it apply in their provinces. (See here.) Premier Kenney explained on February 19th that Alberta had all the resources and legal powers to deal with the blockade at Coutts; however, his Minister of Municipal Affairs had written to the federal Ministers of Public Safety and of Emergency Preparedness on February 5th to seek assistance (see letter here).

Although under section 18, the Act takes effect on the day it is invoked and therefore the government is able to take action under it, as it did, the government must obtain confirmation of it from each House of Parliament within seven days. The House of Commons confirmed the declaration on February 21st in a vote of 185 to 151, on party lines, with the NDP joining the Liberals. The Senate is in the process of debating whether to confirm the Act. (Section 58 sets out the process. The Senate was in recess and therefore had to be called to sit within seven days of the declaration; accordingly, its failure to confirm within seven days is not a problem.) Pursuant to section 18, the declaration will expire in 30 days after invocation, unless revoked or continued.

Cabinet may make orders under section 19 in relation to a number of specific matters (there is not a “basket clause”, although the specified matters are broad) and may provide for fines or imprisonment. It is important to note that making orders is conditional on the declaration of emergency being in effect. Expiration or revocation of the emergency results in the expiry of all orders and regulations made under the Act (s.26). Thus even if it appears that the emergency has been addressed “on the surface”, if the government has concerns that might require action under the orders it has promulgated under the Act, whether as a continuation of the matter or to forestall resumption of the problem, it needs the Act to continue.

The Act permits a wide range of orders, amenable to broad application. For example, the Act permits “the regulation or prohibition of any public assembly that may reasonably be expected to lead to a breach of the peace” (note the qualification which means the provision does not apply to any “public assembly” or protest, but also the fact that it anticipates the future and not only protests that have already breached the peace). This permitted closing down the activities in downtown Ottawa.

It also permits regulation of “travel to, from or within any specified area”, which permitted banning people from downtown Ottawa, with exceptions, thus preventing more people joining the occupation. The Act’s permitted orders also include designating and securing protective place and requiring persons to provide necessary services, with compensation (this latter allowed the ordering of tow trucks, which had refused to get involved, to remove rigs and other vehicles). Penalties for non-compliance under the Act are a maximum of $500 or up to six months imprisonment for summary conviction or up to $5,000 or five years imprisonment on indictment; or in both cases, both fine and imprisonment.

Parliament has the authority under section 21, following the process under section 58 or 59, to revoke the declaration. There is no time limit on this; it obviously applies at any time. According, the interim leader of the opposition sought to introduce a motion to revoke immediately after the House of Commons confirmed the declaration; however, the speaker ruled her motion out of order (apparently because the House was adjourning after the confirmation vote).

There is also provision under section 22 for the Governor in Council to revoke a declaration completely or with respect to a particular area of Canada covered by the declaration; similarly the government can continue the declaration prior to its expiry after consultation with the provinces and after reviewing all the order to determine whether they are still necessary. Similar processes for confirmation apply (s.60).

The government can also amend the declaration; for example, it may determine it no longer applies to a particular area or that it should be extended to a particular area (s.24), again after consultation with affected areas. Amendments require Parliamentary confirmation. I note that if it is not possible to undertake the consultation before it is necessary to apply the Act, the government must undertake consultation before the motion for Parliament to confirm the declaration.

It is correct that the Emergencies Act does grant the government considerable authority it would not otherwise have; however, it is also framed within a group of restraints, including those that did not constrain the use of the War Measures Act.

    Restraints Under the Act

The Preamble identifies the following restraints: the taking of special measures is “subject to the supervision of Parliament”, the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and in doing so, the government “must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency”.

Having said that, the impact of a preamble may be mixed (see Roach’s discussion). It effectively sets the stage for the legislation, but may not be treated with the same seriousness of the text itself.

However, the text of the Act also restricts the government’s actions. For example, it appears to prohibit the kind of internment that took place under the War Measures Act during the two world wars, or at least internment cannot be authorized or justified by reference to the Emergencies Act (s. 4).

Under section 19(3) of the Act, the federal government’s power must be exercised so that it “will not unduly impair the ability of any province to take measures, under an Act of the legislature of the province, for dealing with an emergency in the province” and “with the view of achieving, to the extent possible, concerted action” with relevant provinces. This acknowledges the scope of jurisdictional authority in the provinces.

Similarly, the federal government must not do anything that takes away from a province’s or municipality’s authority over a police force over which it normally has control (or the RCMP when applicable) (s.20).

I have already referred to the need for parliamentary confirmation of the declaration, governed by the process under sections 58-60 depending on the nature of the motion (declaration, revocation or continuation) and whether a House is sitting or in recess or Parliament is dissolved. This requires the government to provide an explanation about why it made the declaration and a report of its consultation with the provinces. If one House rejects the motion, it does not go to the other House.

Where the government has a majority, this may not pose too much of a problem for the government unless there is a real dispute between the executive and the members of the legislature of the same party about the legitimacy of the declaration. (In Ontario, for example, when the Premier declared an emergency under the Emergency Management and Civil Protection Act (EMCP) (for which he did not need legislative approval), he could be sure that the legislature would approve an extension, as required under the Act. And although there are provisions under the EMCP requiring legislative approval at certain points, there was little doubt that this approval would be pro forma.

When the government is in a minority, as the current Liberals are, it must gain sufficient support from other parties to obtain confirmation. In this case, the NDP supported the Liberals. In another case, all parties, or the majority of members, although of different parties, might be viewing the matter through a similar lens. This is far from the case in the current House of Commons.

Indeed, in the current case, as I mentioned above, the interim leader of the opposition immediately made a motion to revoke the just confirmed declaration. This procedure requires that at least ten members of the Senate or twenty members of the House of Commons sign the motion and that it be filed with the Speaker. There must be a vote within three days. (Section 59) A similar process under section 61 governs motions in relation to orders.

In addition to the declaration itself, section 61 provides “every order or regulation made by the Governor in Council pursuant to this Act shall be laid before each House of Parliament within two sitting days after it is made” (in this case, the regulations were issued on February 15th, when the government brought the motion for confirmation of the declaration). Where an order is not public, the government must bring it before the Parliamentary Review Committee.

If the government brings a motion to continue the declaration, it must also include the orders it still believes necessary to address the emergency. Either House may amend the declaration to delete orders, subject to approval of the House.

Parliamentary oversight occurs in another, ongoing, way. The Parliamentary Review Committee is composed of at least one member from each party with at least twelve members in the House of Commons and at least one Senator “from each party that is represented on the committee by a member of the House of Commons”. It has authority to review “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency”, not merely to confirm a static list of orders, and may revoke or amend orders (emphasis added). It must report its review to Parliament. (S.62)

The final way in which the government is held to account is an “after the fact” method: causing an inquiry after the declaration ends “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency” (s.63). The resulting report must be laid before each House with 360 days.

      The Proclamation of the Emergency

The Proclamation includes a statement of what the government believes the emergency is. This is fundamental to determining its legitimacy, whether in the form of confirmation in Parliament, or in the public mind. (On this latter point, it is not assumed all members of the public read the Proclamation, of course; rather, it also provides the basis for the Prime Minister’s and senior ministers’ explanation for declaring the emergency at press conferences.)

The Proclamation first identifies the emergency as follows:

the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada (emphasis added).

I note here that most of the border blockades had ended by the time the government brought its motion for confirmation to Parliament, although it is not unreasonable to assume that at least some were ongoing when the government made its decision. (This raises the question of whether the threat of the declaration of emergency might have helped to end them, given the timing.) Certainly, the Ottawa occupation had at least one of its purposes “achieving [both] a political [and] ideological objective within Canada”. The blockades also had a political objective — the end of all pandemic protective measures, in at least some cases resulting from a desire to impose a libertarian political ideology.

Other aspects of the emergency were “the adverse effects on the Canadian economy … and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings” and on the relationship with its trading partners (these applicable to the border blockades);
the impact on the supply chain and availability of goods, services and resources and (looking to the future) “the risk that this breakdown will continue as blockades continue and increase in number”. Finally, the last reason for the emergency is “the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians”.

The measures the government expected to apply reflect those permitted under the Act and include regulating or prohibiting public assemblies “that may reasonably be expected to lead to a breach of the peace” (specifically excluding “lawful advocacy, protest or dissent”); specific travel; controlling the use of property, such as that that might be used in a blockade; and securing critical infrastructure.

The Proclamation also refers to authorizing or requiring persons to provide essential services, such as tow trucks and towing. This aspect is very specific and applies to the blockades and the Ottawa occupation. There is also the reference to financial measures designed to track support for the blockades and to freeze the accounts of persons involved (but according to the RCMP, in practice not donors). And the authorization of “measures to authorize the Royal Canadian Mounted Police to enforce municipal and provincial laws” and imposition of penalties.

Although the Emergency Act itself does not include a basket clause of permitted actions, the Proclamation does refer to other “temporary” measures that the Act authorizes, the need for which was not yet known.

      Regulations

Although the Regulations reflect both the Act and the Proclamation, they are more detailed than either given their purpose. For example, “critical infrastructure ” means “airports, aerodromes, heliports, harbours, ports, piers, lighthouses, canals, railway stations, railways, tramway lines, bus stations, bus depots and truck depots”; “infrastructure for the supply of utilities such as water, gas, sanitation and telecommunications”; “international and interprovincial bridges and crossings”; “power generation and transmission facilities”; “hospitals and locations where COVID-19 vaccines are administered”; “trade corridors and international border crossings, including ports of entry, ferry terminals, customs offices, bonded warehouses, and sufferance warehouses” (these last are licenced by the Canadian Border Services for temporary store: see here). 

It is the wording that differentiates the Regulations from the Proclamation (and the Act). For instance, in relation to public assemblies, section 2 of the Regulation reads:

2 (1) A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by:

(a) the serious disruption of the movement of persons or goods or the serious interference with trade;

(b) the interference with the functioning of critical infrastructure; or

(c) the support of the threat or use of acts of serious violence against persons or property.

(2) A person must not cause a person under the age of eighteen years to participate in an assembly referred to in subsection (1).

3 (1) A foreign national must not enter Canada with the intent to participate in or facilitate an assembly referred to in subsection 2(1).

There are exceptions, such someone registered as an “Indian” under the Indian Act and Convention refugees, among others.

The Regulations order people not to travel to or where a prohibited assembly is occurring or to allow minors to travel there or “within 500 metres” of where the assembly is occurring. Again, there are exceptions for people who reside or live in the area or who, for example, may be visiting for a legitimate reason (that is, other than to join the assembly).

Other orders prohibit the use of property for facilitating the assembly (Regulations, s.5). The Regulations permit the securing of certain places such as Parliament Hill and the Parliamentary Precinct, war memorials and other places (Regulations, s.6). Here there is a clause that allows the Minister of Public Safety and Emergency Preparedness to designate places not listed in the Regulations.

Section 7 of the Regulations orders anyone to make available essential goods and services and specifically identifies services for “the removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade”, either for a specified period or for a period related to the expiry or revocation of the declaration or the regulations. As consistent with the Act, compensation is to be provided (Regulations, s.9).

Section 10 addresses enforcement and penalties for non-compliance, consistent with the Act and the Proclamation.

The Regulations are consistent with the Act and reflect the Proclamation. They are specific and explicit and are obviously linked with both the blockades and the Ottawa occupation. It is inevitable that critics ask whether these orders, primarily related to situations that have for the most part been addressed, are still necessary. This assumes that they are really over and that there are not indications of a resurgence of the activities to which the Regulations relate. That takes me to the last part of my post, identification of some of the issues arising from the declaration.

ISSUES

I opened by asking how the Emergencies Act compared to the War Measures Act. To the extent both grant the government extraordinary powers, always cause for concern that they be kept in check, the Emergencies Act is an improvement given the government is subject to various civil and human rights documents. Still, the comparison is less the point than whether it was necessary to impose extraordinary powers: even a “better” Act is not a “good” Act if the answer to that is “no”, yet the Act permits it.

What is the standard for determining whether the declaration of emergency is legitimate: necessary? justified? reasonable? Surely, the invocation of the Emergencies Act can only be justified if it is necessary, if there is not another way to address the problem to which it is directed. Thus it may be argued that the declaration should not apply to the border blockades, most of which had ended before the declaration, using regular means.

However, it is also appropriate to take into account that the government had already indicated that it was planning to declare an emergency when the border blockades ended. It is also important that the Coutts blockade ended only because the truckers there left voluntarily in order not to be tainted with the stigma of the discovery of the guns and ammunition.

By the time the House of Commons voted, the Ottawa occupation, it appears, had also ended, because the approach to dealing with it changed considerably after the government invoked the declaration.

Thus The Globe and Mail headed its editorial on Monday with “It’s time to end the state of emergency”. The question before Parliament, it said, was not “Was Canada facing an unprecedented national .emergency, a week ago?”, but rather “Is Canada facing an unprecedented national emergency, today?” This is a fair question.

The editorial also raises other issues, whether it would be appropriate to amend the declaration or enact legislation to address the occupation of streets and other actions. It suggests that the financial provisions “look like a suspension of financial habeas corpus” and ask “Is that constitutional?” or “something Canadians want?”

(On the question of legislation, Ontario Premier Doug Ford has touted legislation that would make permanent the temporary measures under the EMCPA introduced in response to the blockade at the Ambassador Bridge and the Ottawa occupation [see CTV report here].)

Any assessment of the invocation of the Emergencies Act must be conditional on what happens next: will the government revoke the Act? let it expire at the end of 30 days? renew it? A vote a day or two after police ended the Ottawa occupation does not give enough time to determine the reality on the ground.

This is akin to stopping taking antibiotics early because you no longer feel the pain: the symptom is gone, but the infection may remain only to quickly flare again.

The government must explain why it needs to continue the declaration, even if it still has some three weeks without having to go back to Parliament, unless Parliament brings motions to revoke or limit it. The Minister of Emergency Preparedness said a week after invocation of the Act that the work the government needs to accomplish is “not yet done” (Global News report). Once the declaration is revoked one way or another, the regulations are also revoked and unavailable to deal with new blockades; but it must be clear that there is really a threat of new blockades in the near future.

There is a great deal of finger pointing to explain how we got here. For example, the Prime Minister was certainly less careful with his words than he might have been: there were Confederate flags and swastikas, but his reference to these was disproportionate. His sloughing off the participants in the “convoy” and blockades as a “minority”, while I believe accurate, was at the same time dismissive and failed to indicate a sufficient appreciation early in the situation of how serious it was: “Canadians are not represented by this very troubling, small but very vocal minority of Canadians who are lashing out at science, at government, at society, at mandates and public health advice.” (See Global News for this and other comments.) (This does not mean the Prime Minister should have negotiated with the occupiers or even those forming blockades.)

Whatever part the Prime Minister’s comments might have played in the initial stages of the “truckers convoy”, the participation in and support for the occupiers by members of the Conservative Party of Canada have helped to give the occupation and blockades a veneer of legitimacy and let them believe they had genuine supporters. As a result, their criticisms of the Prime Minister ring somewhat hollow. (For examples, see here, here and here.) These comments included a Conservative Senator ridiculing residents of Ottawa who have suffered through the occupation even as recently as this past weekend (see here).

On the other hand, a senator left the Conservative Caucus in the early days because of the party’s support of the occupation (see here) and a Quebec MP described the occupation as a “siege“).

We also have to ask whether the declaration would have been necessary had the police done their job in Ottawa or if politicians had not encouraged the border blockades. The failure by Ottawa police, even with other police forces available to help, to take control of the occupation at an early stage or, indeed, prevented the convoy from entering downtown, left residents at a loss and fearful.

Instead, whether by design as a strategy to defuse the situation or police officers expressing their own views, we saw police bumping fists, smiling with the occupiers and otherwise supporting them. Their approach was in significant contrast to the disciplined approach of the police forces that have succeeded in removing the vehicles and people from Ottawa. (Not everyone, of course, views the police action as disciplined and appropriate, but as aggressive.)

In any event, the Canadian Civil Liberties Association and Premier Kenney are challenging the declaration in court.

During this period, there have been marches in different cities, including protests that have used the slogan “freedom”. A protest at the North Portal, Saskatchewan/Portal/North Dakota is also ongoing, on private land. These protests have been controlled by police by restricting them to certain areas or ensuring that they follow certain routes. But they have been allowed in the usual tradition of protest. However, there is no doubt that quite apart from the invocation of the Emergencies Act, including its use in the near future, there remain serious questions about how police handled the Ottawa occupation and various other blockades or, for example, the homeless encampments last summer (on the latter, for mixed views, see here and opposition, here).

CONCLUSION

To be clear, the Emergencies Act is not the War Measures Act. Unfortunately, not everyone understands this. I had occasion to be crossing a street with a school crossing guard who informed me that “we’re under martial law”. I explained we aren’t, but he offered to provide me with a place to obtain the information he received: Maxime Bernier’s website (having not looked at it, I don’t know if the crossing guard represented his view there correctly).

Were that those Parliamentarians who are responsible for determining whether the emergency declaration was necessary and whether there are circumstances that indicate the need for a continuation of the declaration and orders within the prescribed period were able to approach the question with a modicum of objectivity rather than as an exercise in political theatre. Yet all of us who believe in a circumscribed government must consider whether the extraordinary declaration was and is warranted. For that, we require as much information about the potential in the near future of similar activity as possible.

UPDATE: Prime Minister Trudeau revoked the declaration on Wednesday, February 23rd, before the Senate voted on confirmation, thus revoking all regulations/orders under the Act (see here). Premier Doug Ford also ended the Ontario emergency; however, he said the orders (“the tools” available under the Act) would continue (see here). Unlike the federal Emergencies Act, the Ontario Emergency Management and Civil Protection Act provides that orders under the Act may continue for 14 days after the declaration of emergency ends (s.7.0.8 (4)). (If the legislature disallows and emergency declaration, the orders terminate. (s.7.0.9 (2)).

Comments

  1. “We also have to ask whether the declaration would have been necessary had the police done their job in Ottawa”

    This is the heart of the issue to me. Ottawa police utterly failed to keep the peace and protect the public. As protestors build hot tubs, bouncy castles and performance stages directly in front of the Parliament buildings, it became clear that the federal government had no choice. The Ottawa police were helping bring fuel to the protestors. There was no plan whatsoever to end the protest.

    “Instead, whether by design as a strategy to defuse the situation or police officers expressing their own views, we saw police bumping fists, smiling with the occupiers and otherwise supporting them. ”

    I’ll believe that was a strategy by the police to defuse the situation when I see them doing the same thing at a BLM protest, or a protest by First Nations, or an encampment of homeless people.

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