On Thursday, as he opened his public inquiry into the Trudeau government’s invocation of the Emergencies Act last February, Justice Paul Rouleau said his focus would be “squarely on the decision of the federal government. Why did it declare an emergency? How did it use its powers? And were those actions appropriate?”
The “freedom convoy” movement, which last winter took over the streets around Parliament Hill and blocked key border crossings, was an otherwise legal protest that did a series of illegal things. The legal part was its bringing together of opponents of pandemic public-health measures and vaccines to express their opposition. Illegal: blocking borders, and commandeering the streets of downtown Ottawa for a semi-permanent protest park-in.
The right to protest is the right to go to the public square to share an opinion – even if your cause is unpopular or questionable or just plain wrong. It does not include the right to take over roads for anything more than a brief march. That’s true even if your cause is popular, or the powers that be are sympathetic.
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Justice Rouleau will have to delve deeply into the actions of the protesters and blockaders, including how serious the lawlessness was and whether police could have restored order without the Emergencies Act. But that is context for the inquiry, not its subject. Its subject is whether the Trudeau government’s brief but unprecedented activation of the Emergencies Act on Feb. 14 was justified, and whether the powers the government gave itself were appropriate.
The Emergencies Act was passed in 1988 to replace the (no longer constitutional, in the era of the Charter) War Measures Act. It has spent the last third of a century behind a glass marked, “Break Only in Extreme Emergency.” The law says it may only be invoked when circumstances are so dire that they “cannot be effectively dealt with under any other law.”
To ensure that governments are reluctant to declare a national emergency, the law includes an obligation to convene a postemergency public inquiry. It began this week, and is to issue a report in February. In his opening remarks, Justice Rouleau said the public “has a right to know what happened.” Indeed they do. They should learn:
How bad was the situation on Parliament Hill prior to Feb. 14? It wasn’t the Jan. 6 insurrection in Washington, but all those trucks parked on and around Wellington Street, the constant honking, and the barbecues and hot tubs and encampments in the middle of the road were clearly a major problem, and clearly not legal. Was the Emergencies Act the answer?
Did police lack the resources or the legal tools to clear the streets? Did they need the Emergencies Act? Did they request it? Several border blockades, from British Columbia and Alberta to the Ambassador Bridge in Windsor, Ont., were ended by police, albeit with difficulty, prior to Feb. 14.
If the Emergencies Act was appropriate, what about each of the tools the government pulled from the toolbox? This page was particularly troubled by the freezing of bank accounts without warrant or judicial review.
And here’s one more thing, which the inquiry is unlikely to get into.
It concerns not the law, but political choices. It has to do with how the Trudeau government chose to talk about the protest on Parliament Hill, and anyone who protested. With temperatures running high from coast to coast, the government chose to raise the rhetorical temperature. Why?
By last February, anti-vaccine and anti-public-health marches were regular occurrences in many Canadian cities. They represented a minority opinion, and one this page strongly disagreed with. But they were legal. Authorities in places such as Toronto assisted protesters to march, as they would with any other protest, while reminding them of the consequences of not following the law. These authorities worried about the law, not the protesters’ opinions.
But from the start of the Ottawa blockade, the Trudeau government came at things differently. It almost immediately characterized the people who showed up on Parliament Hill, many only for an afternoon, as white supremacist, swastika-waving War Memorial desecrators. It said that the protest, and anyone sympathetic to it, was not just mistaken, but beyond the pale. The government raised the temperature and polarized a situation – which was exactly what the most radical of the right-wing protest organizers wanted. Why?