Commissioner Rouleau has ruled the Liberal government met the threshold to invoke the Emergencies Act against the Freedom Convoy protest in Ottawa last year.
Clearly then, the requirements for utilizing that legislation are not clear enough or stringent enough. The threshold has been set too low.
The Emergencies Act is the most powerful legislation available in the federal government’s toolbox. The gravity of the invocation of an act that suspends the rights of Canadian citizens can’t be overstated. The Emergencies Act is an innocuously named version of the War Measures Act that it replaced in 1988 but the principles of the act remain the same.
The state was given the ability to literally force labour—tow truck drivers could be arrested if they refused to do the bidding of the government. Though the labour would be paid and the forced actions would be temporary, giving the government the ability to force labour on innocent citizens is not to be taken lightly.
Property and privacy rights were superseded as bank accounts were seized and rights of assembly were removed.
The language in the act makes it clear it should only be used as a matter of absolute last resort. The Emergencies Act gives the cabinet of the federal government the ability to declare a national emergency in response to an urgent and critical situation that cannot be dealt with by any existing law, and is either is beyond the capability of a province to deal with or threatens the sovereignty of Canada.
No other act of parliament obligates the government to hold an inquiry after its use as the Emergencies Act does. The legislators who drafted the act understood how important it was that the government only considered using the act as an absolute last resort—even if the current federal government doesn’t.
There is a need for the government to have the ability to assume temporary, extraordinary powers when the nation is facing an extreme emergency. Imagine, for example, an earthquake hit a major city and looting got out of control to the point of preventing emergency workers from doing their jobs. There would be no room for the government to delay and they would need to get the situation under control as soon as possible.
If Canada were to be invaded by a foreign nation or aliens for that matter, the use of the Emergencies Act could be justified.
If there were riots occurring in an urban environment causing massive damage and loss of life, the government may need to suspend some rights temporarily to get them under control.
In the case of the October Crisis in 1970 when Pierre Trudeau invoked the War Measures Act, a domestic terrorist group in Quebec had set bombs along with murdering a kidnapped public official in cold blood. There was little room to delay.
In all the examples I listed, time was of the essence. The government would not have time to navel-gaze and debate the use of extraordinary measures. It would need to act to avoid loss of lives.
The Freedom Convoy protest was costly, and it discomfited many innocent citizens of Ottawa who happened to live in the wrong place at the wrong time. The occupation couldn’t be allowed to remain indefinitely and the government had to find a way to end it.
The protests in Ottawa can’t be compared to the prior examples I listed because there was not such a critical time factor. Neither national sovereignty nor citizens’ lives would have been put at risk if the government took a few more days with their reaction to the protests. The state didn’t need to rush into invoking the Emergencies Act.
Negotiation was one action the government refused to take with the Freedom Convoy protesters. In any other situation where there is a standoff between law enforcement and citizens, negotiation is always the first course of action to be used before direct intervention. Intervention without negotiation can escalate tensions and cause harm to citizens and law enforcement officers alike.
While negotiations may not have led anywhere, it is unforgivable that the federal government refused to even try it before taking such extreme measures. If nothing else, the government could have maintained a higher moral ground had they attempted negotiations. They could say “Hey, we tried negotiating and were left with no choice.”
If the Liberal government reached the required threshold to invoke the Emergencies Act against protesters in Ottawa last year, then clearly the Emergencies Act is flawed. The act needs more depth and a clear checklist to follow before it can be used. In the case of protests, the government must be obliged to try to negotiate in good faith before the act can be invoked.
The Emergencies Act is flawed, and in not noting that Commissioner Rouleau missed an opportunity for something productive to come from the inquiry.
A dangerous precedent has been set in Canada.
