Whether or not the Emergencies Act is the solution, blockades are a growing problem

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The Trudeau government’s decision to invoke the Emergencies Act in relief of the siege of Ottawa and associated blockades at various border points is, according to the Toronto Star, “a shocking admission of failure.” It is certainly that. That doesn’t make it wrong.

It should never have come to this, but it has. The police should have prevented the blockades from taking root, but they didn’t. There will be time enough to debate why the stable door wasn’t barred, but for now the job is to get the horse back in the barn. The question is whether the Emergencies Act is the right way to do it.

Let’s be clear, first, about what the Act does not do. It does not empower the government to call in the military, or to suspend Charter rights. The declaration of emergency (giving effect to its powers) must be confirmed by a vote of Parliament, and applies only for 30 days. Whatever measures the government takes under the Act are subject to oversight by a parliamentary committee, and review by the courts. The onus will be on the government throughout to justify its use of the Act.

Explainer: What is Canada’s federal Emergencies Act? A summary of the law’s powers and uses

The first hurdle will be to show the declaration of a “public order emergency” meets the test contained within the Act itself: “threats to the security of Canada” that are “so serious as to be a national emergency” – further defined as an “urgent and critical situation” that “seriously endangers” the “lives, health or safety of Canadians” to an extent that exceeds “the capacity or authority of the provinces,” or “seriously threatens” the “sovereignty, security and territorial integrity” of Canada, and which “cannot be effectively dealt with under any other law of Canada.”

It’s far from clear the government can get over that bar. It can probably make the case that there is a danger to public safety, and the testimony of the government of Ontario is likely enough for the courts to find a lack of provincial capacity. Alternatively, it could plausibly argue that the repeated blockades of border crossings pose a threat to our sovereignty and territorial integrity. But “threats to the security of Canada” has a specific meaning, spelled out in the Canadian Security Intelligence Service Act, so stringent that it is hard to imagine the courts would find it applicable.

Suppose they did. That still doesn’t necessarily make it a good idea. Critics raise two broad objections to use of the Act in this case: first, that it is unnecessary – the police already have the powers they need, if only they would use them – and second, that it is disproportionate: the powers it gives police are too sweeping, relative to the problem they are attempting to deal with. Much will depend on the precise measures the government proposes, but when one looks at the sorts of powers the law envisages it is not clear either criticism holds, particularly in the peculiar circumstances of the moment: the use of large trucks to obstruct critical infrastructure.

One practical problem facing police, for example, is the unwillingness of towing companies to remove the offending trucks, for fear of what this would mean for their business. So the power to direct “any person … to render essential services of a type that that person … is competent to provide” would seem both necessary and proportionate. The power to prohibit a public assembly “that may reasonably be expected to lead to a breach of the peace,” or to regulate “travel to, from or within any specified area,” while extraordinary, would seem appropriate in places where public order has entirely broken down.

Finally, the financial powers the government seeks – to freeze the bank accounts of the trucking companies involved, to suspend their insurance, and to subject crowdfunding sites such as GoFundMe to existing laws against money-laundering – look, on the face of it, like useful additions to the law enforcement toolkit: again, given the circumstance. Like any police power, however, they hold the potential for abuse, and like all of the measures the government proposes, they will have to be rigorously justified, in front of Parliament, the courts and the nation.

It should be clear, however, that we have a serious problem on our hands. Twice in the space of two years this country has been nearly brought to its knees by protesters using blockades to advance a political cause. It seems equally clear that these pose unique challenges to law enforcement, beyond the failings of this or that police force. Perhaps what is needed in the long run is not the broad brush of the Emergencies Act, but legislation more precisely tailored to a problem that is likely to be with us for some time.

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