The Emergencies Act proved its mettle

The least important part of the report of the Public Order Emergency Commission is the part that attracted the most attention: Justice Paul Rouleau’s finding that Justin Trudeau’s decision to invoke the Emergencies Act to quell the lawless occupation of downtown Ottawa and other points across the country last February “met the threshold” set out in the act for its use.

Though Justice Rouleau found the conditions that must be present before a “public order emergency” may lawfully be declared were in fact present, it is far from clear that was part of his mandate. The act itself requires only that an inquiry be held “into the circumstances that led to the declaration being issued,” while the terms of Justice Rouleau’s commission limit it to advising on the “appropriateness and effectiveness of the measures taken.”

Still, as the judge argues, it would be hard to assess the appropriateness of the act’s use without some reference to whether it was lawful. While a formal decision on its legality must await a court of law – where indeed it is the subject of a number of separate legal challenges – Justice Rouleau’s findings will be useful in the court of public opinion, which is in some ways a more exacting test.

Because while it is important to know whether it was legal to invoke the act in this case, it is as important, if not more so, to know whether it was wise. The threshold conditions in the act go a long way to help us assess this; the requirements in law serve also as requirements in logic. But they are not enough in themselves.

So as persuasive as Justice Rouleau’s legal reasoning is, he provides an equally valuable service through the findings of fact included in his report: an authoritative description of what actually happened during the convoy protest and afterward, as opposed to the myths and propaganda that inevitably attend such events.

To the legal question, first. Much too much attention has been devoted to the issue of whether the circumstances surrounding the protest were in objective conformity with the act’s definition of a “public order emergency.” In particular, legions of armchair judges pronounced themselves on the question of whether the situation met the act’s definition of a “threat to the security of Canada,” which is to say the definition it borrows from the Canadian Security Intelligence Service Act.

The implication was not only that these and other matters could be decided with some precision or certainty, in the middle of a national crisis characterized by fluidity, volatility and multiple moving parts, but that the act requires that they must. It does not. The standard under the act, as in many other laws, is not that the government knows with certainty the required conditions have been met: only that it “believes, on reasonable grounds” they have.

To be sure, it is not sufficient that the government sincerely believes this (though it is necessary). It has to have reasonable grounds for this belief: defined by the courts as a “compelling and credible” factual basis. But to be “reasonable,” the government doesn’t have to be right. It just has to be reasonable: something a reasonable person might also believe, given the same information – that is, the information available at the time.

Well, now. Let’s go through the list of conditions. Was it reasonable for the government to believe the situation “seriously endangered the lives, health, or safety of Canadians”? The evidence is overwhelming: the intimidation, harassment and outright assault of bystanders in downtown Ottawa; the multiple open fires, close to propane tanks and diesel cans; the obstruction of critical services; the swarming of police officers attempting to enforce the law, and the resulting unwillingness of police to intervene further; the growing risk of violence, as the protest wore on, between protesters and counterprotesters; the even greater risk of violence if and when the police finally did step in.

There was also the economic impact of the mushrooming blockades at the borders. While the disruption of trade and economic activity, considerable as it was, might not constitute a threat to health or safety in itself, as the judge argued, the consequences of a “serious, sudden, prolonged, and deliberate disruption to economic security and the ability to earn a living” almost certainly would. Was that not precisely the argument of the protesters against vaccine mandates, lockdowns and other anti-COVID measures? And while this or that blockade, such as at Windsor’s Ambassador Bridge, might have been dismantled, there was every prospect of another blockade taking its place – not only at border crossings, but possibly extending to railways or ports – or of the same blockade resuming.

What about the “threat or use of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective”? Do the multiple explicit threats of violence directed at the Prime Minister, members of his cabinet, the mayor of Ottawa and other officials count? How about the large cache of weapons and ammunition discovered by RCMP officers at the blockade in Coutts, Alta., in possession of known extremists, or the presence of similar “bad actors” at other sites? Or the increasingly apocalyptic rhetoric of the protesters and their supporters, including demands to seize power and threats to assassinate public-health officials?

This was, in short, no peaceful, lawful protest. It might have begun that way; most of the protesters and some of the organizers might have preferred it remain so. But it did not. After the first weekend, after the protesters were told to leave and did not, it began to spin out of control. As Justice Rouleau writes, the situation was increasingly “unsafe and chaotic … Cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable.”

In part the protest was a victim of its own success. The judge describes in detail how social media, so useful to the organizers in getting the protest started, also contributed to vastly more people participating than the organizers themselves had ever anticipated – more people, with conflicting goals, and vastly different views as to how these were to be achieved.

In many cases these were informed by fantastic theories about how the world or our system of government works: social media’s other legacy. The judge notes the difficulties of negotiating, even if that were otherwise defensible, with a movement that included a significant contingent who “believed COVID-19 vaccines were part of a vast global conspiracy to depopulate the planet” or that the elected government of Canada should be replaced by a junta made up of the Governor-General, the Senate and the protest organizers.

That doesn’t excuse the organizers, even the non-violent ones, who knew they had created a monster but declined to do anything about it. Neither does it excuse the baffling errors of the police, especially the Ottawa Police Service, who failed to heed the intelligence that this was no ordinary protest. But it does make the case that, by the second or third week, with downtown Ottawa under siege and copycat protests erupting across the country, the crisis had outgrown the capacity of any province to resolve it, another of the act’s requirements – though again this does not excuse the government of Ontario’s failure to even attempt to engage with the problem until it was too late.

Neither does the evidence support the suggestion that the protest might, even then, have been “effectively dealt with” by means of some other federal law: the last of the caveats under the act. The judge is right to emphasize the word “effectively.” You can always think of other methods that might have been tried, though these would almost certainly have failed, or succeeded at unacceptable cost. The judge has taken some stick for seeming to endorse the reluctance of police, once the protest had become entrenched, to simply enforce the Criminal Code, as some have suggested, due to the “unacceptable safety risks for police, protesters, and bystanders.” But this seems to me only sensible. In theory the government might have “dealt with” the situation by calling in the army, but that, too, was not a practical possibility.

So the judge makes a persuasive case that it was appropriate for the government to invoke the Emergencies Act. Was it also effective? It would be hard to argue it wasn’t: A protest that seemed immovably entrenched beforehand was wrapped up in little more than a week. Simply invoking the act, with its ban on public gatherings likely to lead to a disturbance of the peace, seems to have been a deterrent for many. The threat of having their bank accounts and other financial assets frozen if they did not leave did the same for more. Towing-service operators who had been too terrified to move trucks before were willing to do so under cover of a police order.

Yes, but at what cost? Here we run into some of the many myths spread by protest sympathizers. Wasn’t the removal of protesters achieved by means of rampant police brutality? No: “there were no significant injuries sustained by protesters or bystanders during the enforcement operation.” Didn’t thousands of ordinary people end up having their bank accounts frozen? No: In total, the list of “designated persons” the RCMP distributed to the banks included the names of “18 individuals and 39 owners or drivers of vehicles.” Didn’t these include people who had only donated a few dollars or even bought the protesters coffee? No: “There appears to be no dispute that these lists did not capture small-dollar donors or others with only a peripheral connection to the protests.” The freeze was lifted within a week.

Talking of myths, wasn’t it a myth that the protests were supported in part by foreign money? No: Of the total of nearly $24-million raised via the three main online fundraising operations, nearly a third – more than $7-million – came from the United States. Finally, wasn’t it a myth that more than a handful of protesters were charged with anything? No: “between January 28 and March 31, 2022, the OPS laid 533 criminal charges against 140 individuals for actions arising from the Freedom Convoy.”

Whatever the merits or otherwise of the government’s decision to invoke it, what emerges most forcefully from the judge’s report is the reasonableness of the act itself. Part of the intensity of the response it aroused was rooted in the belief that martial law had just been declared, or something close to it. It should by now be abundantly clear this was not the case.

This was not the War Measures Act, with all of its potential for abuse: It is the law that was written to remedy its excesses – carefully circumscribed, strictly time-limited, with multiple layers of parliamentary and judicial oversight, of a kind found in none of the provinces’ emergency statutes or, as the judge notes, in those of “comparable countries around the world.” And then, at the end, there is a mandatory independent inquiry into the whole thing.

That it became necessary to invoke the Emergencies Act is embarrassing. That it was invoked was controversial. But the act itself ought to be cause for some national pride.