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opinion

Peter H. Russell is a professor emeritus of political science at the University of Toronto

It will be interesting to hear how the Trudeau government explains its decision to invoke the Emergencies Act. Under Section 63(1) of the act, once the proclamation invoking the act has been revoked, the governor-general “shall” within 60 days appoint an inquiry to be held into “the circumstances” that led to the declaration being issued. But even though the inquiry hasn’t happened yet, it’s already clear that the circumstances did not warrant an invocation of the act.

Don’t confuse the inquiry with the parliamentary review, which is also called for under the act. The review is about how the emergency powers were used, not about the circumstances that led to declaring an emergency. But the inquiry and the review may come together when both report to Parliament.

Flash back a few weeks to early February, when several hundred large trucks were blocking the streets of Ottawa. Did that constitute “a public order emergency” that “necessitates the taking of special measures”? What needed to be done to get the trucks out of there? The only answer I can think of is that the Ottawa police would have had to ask the truckers to move their vehicles and, if the drivers refused, then threaten to remove them by force. Ottawa’s then-police chief, Peter Sloly, certainly had the resources to do that.

Now let’s recall the sequence of events. On Feb. 11, Ontario Premier Doug Ford declared an emergency under the Emergency Management and Civil Protection Act. On Feb. 14, Prime Minister Justin Trudeau invoked the federal Emergencies Act. On Feb. 15, Chief Sloly resigned. By Feb. 17, the OPP and RCMP had set up a command centre with the Ottawa Police Service. By Feb. 20, the truck convoy was off the streets of downtown Ottawa, and 191 people had been arrested.

When Chief Sloly resigned, he was quoted in the media as saying, “I am confident the Ottawa Police Service is now in a position to end the occupation.” It is difficult to make sense of that statement. The emergency acts, which had been invoked before he resigned, did not give the federal or provincial governments any new powers to direct the police to clear trucks blocking city streets. Governments in Canada to which police are accountable, without any emergency legislation, can direct police to do what is necessary to clear a city of an occupation. Governments should not tell police which people to arrest or charge or remove. But in a liberal democracy, the policy of police operations should be controlled by democratically elected governments or agencies accountable to such governments. Anything short of that in terms of government power to direct the police would mean we are living in a police state with police forces independent of government control.

In directing the police, government officials should be careful to ensure that their instructions tell the police they must protect the constitutional and common law rights of all persons. These rights include freedom of expression and freedom of peaceful assembly under the Canadian Charter of Rights and Freedoms. But it should also be explained to the police that all Charter rights and freedoms are “subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It would be unreasonable to stop a truck from driving through town and expressing opposition to vaccine mandates by a sign on its side. However, it would be reasonable to prevent trucks from expressing that sentiment by clogging the streets with their parked vehicles.

The instructions from government to the Ottawa police should have focused primarily on the trucks, which were making it difficult for Ottawa residents to pursue their normal daily lives and were keeping them awake at night by honking their horns. Once truckers left their vehicles voluntarily or by force, the police should have been instructed to ensure they had access to legal counsel. At this point, we do not know all the details, but we do know that a few who were charged have been denied bail. Presumably most who were charged have been granted bail and are free, awaiting trial. Let’s hope the parliamentary review, which must soon get under way, will give us more information.

The Emergencies Act certainly gave extraordinary powers to the federal government. These include the power to prohibit any public assembly that may be reasonably expected to lead to a breach of the peace, to prohibit travel to or from any specific place and to order anyone to render services. Notice that these extraordinary powers are to be used to order around ordinary people. Once invoked, these powers would give the police the power and responsibility to arrest individuals for breach of the emergency regulations. While in that sense invoking the Emergencies Act could have given the police additional powers and responsibilities, they were not powers that governments needed to order the police to remove trucks from Ottawa streets. Moreover, so far as we know, the federal government did not use the extraordinary powers available under the act. Governments do not need emergency powers to recruit and pay people to drive the tow trucks needed to remove trucks illegally blocking the streets.

Section 20(1) of the Emergencies Act states that nothing in a declaration of a public order emergency derogates from “the control or direction of the government of a province or municipality over any police force it normally has the power to control.” This non-derogation section goes on to apply it to the federal government and its control of the RCMP. So there you have it – confirmation of government control of police, with or without an emergency.

Let me rest my case here. Emergency powers were not necessary for police to take the actions needed to clear the truck convoy from the streets of Ottawa. In my view, the invocation of emergency legislation by Mr. Trudeau and Mr. Ford was pure show business. Maybe it was something they had to do – pour buckets of cold water over their heads to wake themselves up and mobilize public support.

If I am right, another casualty of the pandemic is strengthening public ignorance about policing in our liberal democracy. The invocation of emergency legislation may result in the public not appreciating that elected governments have the power and the responsibility, without invoking any emergency legislation, to instruct the police to do what is necessary to prevent protesters from using trucks to clog the streets of their communities.

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