Emergencies Act usage a mistake
WE’RE ABOUT TO LEARN JUST HOW BIG
That using the Emergencies Act to clear out the freedom convoy protest this past winter was an overreaction should be the inescapable conclusion of all but the most ardent of Trudeau apologists. The judicial inquiry set up by the government as required by the act and which begins next month will hopefully provide clearer answers as to why a state of emergency was declared. But, unless previously unheard-of evidence that Canada’s democracy really was an inch from collapsing emerges, a terrible precedent will have been set. Don’t agree? Just imagine a future government using the act to clear away, say, climate protesters.
Declaring an emergency, which allows the federal cabinet to assume the powers of Parliament to create new laws and expand police powers almost at will, cannot be done at a government’s whim. The government can only use such powers that have been delegated to it by Parliament and which are bound by the Constitution.
In a recent essay for the Macdonald-laurier Institute, constitutional law expert Ryan Alford distinguishes between governments declaring a true state of emergency and what is called a “state of exception.” A state of emergency “authorized by the Constitution” is intended for when there is a genuine crisis that existing non-emergency powers cannot address. The key point is that it is time limited, there are clear safeguards on the use of power and it is otherwise consistent with the written and unwritten parts of the Constitution.
A state of exception, by contrast, occurs when a government claims arbitrary powers for itself, and the normal rule of law that typically limits executive authority is abandoned. There is no emergency so great, even a threat to the existence of the state itself, that justifies a state of exception, Alford argues. “If one grants arbitrary power to the executive, we have already destroyed what we seek to preserve,” he writes.
The Emergencies Act corrected much of the overreach of the previous War Measures Act, which allowed for unconstitutional and arbitrary powers. The newer law limits what cabinet can do during an emergency, and conforms to the Constitution, including the Charter of Rights and Freedoms.
These safeguards only matter, however, if the government actually follows them. Unfortunately, it seems increasingly clear that invoking the Emergencies Act during the freedom convoy protests and border blockades was done arbitrarily.
For all the bluster of some of the convoy leadership that they wanted to force the Governor General to dissolve the Liberal government, Canada’s constitutional order was not actually in danger. All you have to do is consider the charges against the protesters and their leaders. Not a single charge of sedition was laid, none that has been made public at least. Instead, there are multiple charges of mischief, which apply to blocking or interfering with the use of property, charges of obstructing police and various highway and municipal violations.
The Emergencies Act clearly states it must only be invoked when a so-called emergency “cannot be effectively dealt with under any other law of Canada.” Constitutional lawyer Sujit Choudhry, who represents the Canadian Constitution Foundation in its legal challenge against the government over use of the act, points out that there are multiple existing laws in the Criminal Code that could have been used to address the protest. And, in fact, were used to clear the Windsor-detroit border blockade before the state of emergency came into effect.
“Parking a truck on a city street without a permit for two weeks violates a number of laws,” he said in an interview with the Post recently. “If police felt things were getting out of hand, they could just enforce the law.”
When it comes to the argument that the act was necessary to compel reluctant tow-truck drivers to assist police in clearing the streets of Ottawa, Choudhry’s submission to Federal Court notes that the Criminal Code already “makes it an offence for a person, without reasonable excuse, to refuse to assist a police officer in the execution of their duty.”
As for the authority to cordon off the area in front of Parliament? The Criminal Code provides powers that enable “police to engage in crowd control,” Choudhry says. “They’re used all the time in the context of other protests. For example, they are used against Aboriginal protesters, they are used against pipeline protesters.”
Nor is Choudhry convinced that the act was needed to quickly swear in officers from outside of Ottawa so they could assist in clearing the protest. “They could have been sworn in, in a stadium.”
Even if the government somehow needed special powers to remove the protesters, it claimed multiple other powers that clearly show the danger of abusing authority. “They criminalized all sorts of assemblies, associations and expression. They authorized warrantless search and seizures of bank accounts,” Choudhry says.
It was obvious that the freedom convoy had evolved into an occupation beyond what would normally be considered the exercise of the rights to assembly and expression. That the protesters refrained from rioting or that they may have allowed ambulances to pass through, or that they may have given food to the homeless, does not excuse the fact that they were clearly breaking laws.
Being illegally and unreasonably parked for days shouldn’t mean you are locked up, but nor is it a form of expression that exempts you from obeying the law. It is incumbent on democracies to tolerate some disturbances as part of living in a free society, but that doesn’t mean such protests can go on indefinitely, especially when they are imposing tangible costs on others, such as denying them the use of their business, or being a general nuisance to people just going about their daily lives.
We still don’t know why Ottawa police, or the Ontario Provincial Police or the RCMP were unable to clear or contain the protests earlier. Good old incompetence, or buck passing between jurisdictions, or the increasingly arbitrary use of police powers against protesters of all persuasions, seem as credible explanations as any.
Perhaps more compelling evidence will surface, but if it doesn’t, whatever the threat posed by the convoy, it was nothing compared with the federal government’s own lawlessness.
(THIS) CANNOT BE DONE AT A GOVERNMENT’S WHIM.