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Truck drivers and others protest COVID-19 pandemic restrictions in Ottawa on Feb. 12, 2022. The federal government has invoked the Emergencies Act in response to the protest and related blockades.Ted Shaffrey/The Associated Press

The Emergencies Act, on the books for a third of a century, has never before been taken off the shelf. There are two good reasons for that.

First, because it is the successor to the War Measures Act, which was used and misused in 1970 to tackle what an earlier Trudeau government described as an “apprehended insurrection.” Second, because it’s reserved for extreme situations, those posing an existential threat to Canada or the ability of governments to maintain order.

The last time the feds brought out their heaviest legal artillery was the October Crisis. After years of FLQ bombings in Quebec, the terrorist organization escalated to kidnapping. British diplomat James Cross was taken hostage. So was Pierre Laporte, Quebec’s deputy premier.

The terrorists demanded the release of 23 criminals, and the chief anchor of Radio-Canada had to read their mad manifesto live on air, word for word, including describing the mayor of Montreal as a dog, the premier as a lackey and using a gay slur to describe prime minister Pierre Trudeau.

Then the FLQ strangled Mr. Laporte, and left his body in the trunk of a car.

It felt like society was coming unglued. People were scared.

Under the War Measures Act, police were given the power to detain anyone, without charge. Habeas corpus was suspended. The army patrolled the streets of Montreal. Hundreds of suspects were arrested. And the vast majority of Canadians, inside and outside Quebec, cheered.

The crisis quickly passed. Nearly all of those arrested were guilty of nothing, and were released in a matter of days. Mr. Cross was freed. The terrorists were caught, or fled the country.

But it turned out that though fear of an insurrection had been real, the facts of it were not. The FLQ was a tiny organization and it quickly ceased to exist. The War Measures Act, and its easy evisceration of civil liberties, came to be remembered as overkill.

Will the same one day be said of Monday’s invocation of the Emergencies Act?

In its defence, the new law has much more limited powers compared with the old War Measures Act. It was deliberately drafted to avoid the overreach of that earlier instrument.

The War Measures Act was from the era before the Charter of Rights and Freedoms, when parliamentary supremacy was absolute. The Emergencies Act, in contrast, is entirely subject to the Charter. If anyone’s rights are violated, they have recourse to the courts, which will have the final word.

The act’s time-limited powers must also be approved by Parliament, overseen by Parliament and subjected to a postmortem public inquiry.

The Trudeau government has declared an emergency for 30 days, and says it hopes to end it sooner. The government may yet get its wish. Most of the motivating incidents were resolved or in the process of resolution before Monday’s declaration. That’s good news, but also raises questions about calling what remains a national emergency.

The Ambassador Bridge blockade in Windsor was cleared last weekend, using pre-Emergencies Act powers. Near Coutts, Alta., police seized a cache of weapons on Monday morning, after which the rest of the protesters announced they wanted no violence and would be leaving. They were gone the next day. In Surrey, B.C., another blockade was minimized on Monday, and removed Tuesday.

That leaves the border blockade at Emerson, Man. – which the RCMP said Tuesday had agreed to disperse by Wednesday – and several hundred trucks on the streets of Ottawa.

The Parliament Hill park-in has been a long, loud, illegal imposition on Ottawa residents. But a bunch of parked vehicles and drivers in hot tubs is not exactly an existential threat to the country. So far, it’s been more Burning Man meets Letterkenny than Jan. 6 at the U.S. Capitol.

The Ottawa occupation must be resolved and removed. But reasonable people can ask whether police already have enough legal tools to do that.

To the extent the use of the Emergencies Act is carefully tailored to the time, place and scope of the illegal activity targeted, it may be justified. The threat currently appears relatively small, and highly localized.

Within seven sitting days, the Trudeau government must come before Parliament with a motion to confirm the declaration of emergency. It could be in a position to close the book on the act even sooner.

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