To judge whether the Trudeau government did the right thing in invoking the Emergencies Act last February, or whether it went too far and set a dangerous precedent, you have to start at the beginning. You have to go back to the October Crisis.
In the fall of 1970, a group of terrorists with vague notions of turning Quebec into a Marxist workers’ paradise, and with the immediate goal of springing convicted comrades from prison, kidnapped a British diplomat and Quebec’s deputy premier. The FLQ had for years engaged in bombings; now it was holding to ransom public officials. There was a sense that revolution was in the air, and that law and order was slipping away. Something had to be done.
Asked what that something might be, the prime minister, Pierre Trudeau, famously said: “Just watch me.” On Oct. 16, 1970, the federal government invoked the War Measures Act. It suspended civil liberties, allowing searches without warrants and detention without habeas corpus; it also put the Canadian Armed Forces onto the streets of Montreal. All of which was wildly popular, in Quebec and across Canada. In the 1970 Montreal municipal election, held during the October Crisis, Mayor Jean Drapeau accused his opponents of sympathizing with the terrorists; his party won every seat on city council, and he got 92 per cent of the vote.
After the introduction of the War Measures Act, any public support for the FLQ evaporated, as did the FLQ itself. Normalcy quickly returned. And with normalcy restored, it was time for sober second thought.
With the passage of the time and the release of new information, Canadians came to see the October Crisis, and the War Measures Act, in a different light. Law and order had been faced with a real challenge, to which the authorities had to respond. But it also came to be recognized that Ottawa had overstated the danger, and had been too quick to suspend civil liberties.
Half a century later, after a different Trudeau government invoked the never-before-used Emergencies Act – the successor legislation to the War Measures Act, and drafted to guard against the excesses of 1970 – it is once again time for sober second thought.
Since October, a public inquiry headed by Justice Paul Rouleau has been holding public hearings into the decision to respond to last winter’s “freedom convoy” movement with the Emergencies Act. Did the government have valid legal reason to invoke this extraordinary law? Was Canada facing a threat that could be dealt with by “no other law,” as the Emergencies Act stipulates?
In late January and early February of this year, blockaders were clearly flouting the law. And there were fears that lawlessness was spreading, encouraged by lack of enforcement. Barricades at border crossings, notably Windsor’s vital Ambassador Bridge, were interrupting trade. On Parliament Hill, hundreds of truckers had unloaded barbecues, hot tubs and bouncy castles, occupied streets, and refused to leave.
It was up to multiple police forces, several provinces and ultimately the federal government to restore law and order. But the extraordinary legal tool chosen by Ottawa does not appear to have been proportionate to the nature, scope or timing of the threat.
In its defence, the Trudeau government has cited violence and the danger of violence. But the only significant evidence is a cache of weapons seized near the Coutts, Alta., border crossing. When the Emergencies Act was invoked, on Feb. 14, the people accused of plotting violence at Coutts were already in jail.
The government has also pointed to threats to the Canadian economy. There’s no question that a blockade that paralyzes border crossing, and that police are unable to remove, could be an economic disaster. But the border blockades were history by the time the Emergencies Act came in. Hundreds of trucks were still parked in Ottawa, which was a problem and clearly against the law. But is a handful of blocked roads, in one Canadian city, a national emergency? That seems too low a bar.
In the October Crisis of 1970, Canadians rightly demanded that law and order triumph over chaos. But in the fullness of time, they came to question the means the federal government used to achieve those legitimate ends, and the troubling precedent it set. That is also the best way to understand, and learn from, the February Crisis of 2022.