Skip to main content
Open this photo in gallery:

Police hang off a truck as authorities work to end a protest against COVID-19 measures that had grown into a broader anti-government demonstration and occupation lasting for weeks, in Ottawa, on Feb. 19.COLE BURSTON/The Canadian Press

It’s a simple enough question: Was the Trudeau government right to have invoked the Emergencies Act last Feb. 14? Spoiler alert: Based on testimony so far before Justice Paul Rouleau’s public inquiry, he may not be able to deliver a simple, pat answer.

The reason there’s a public inquiry is because the text of the Emergencies Act itself demands it. The law, which since its passage in the 1980s had never before been called on, is an extraordinary measure whose text says is only to be used when things are so dire they “cannot be effectively dealt with under any other law of Canada.” It’s a high hurdle, and was intended to be.

The big legal question the inquiry has to answer is whether the circumstances of earlier this year – the “freedom convoy” movement and the occupation of downtown Ottawa – were such that the Emergencies Act, and measures pursuant to it, were legally justified.

On the one hand, it’s difficult to argue that parked vehicles and encamped protesters in downtown Ottawa could not be removed by “any other law of Canada.” After all, blockades at several border crossings were ended by regular policing and normal laws. What’s more, Ontario declared its own provincial emergency prior to Feb. 14, which gave police additional legal powers on top of their existing powers. On paper, police appeared to have many tools at their disposal.

But it’s also true that, after trucks began blocking streets around Parliament Hill on Jan. 29, Ottawa Police failed to respond in a way that restored order. A series of senior municipal, provincial and federal police officers have taken the stand to give their takes on why that was, what was happening – or rather not happening – and who was responsible. The only thing beyond debate is that, in the two and a half weeks prior to the triggering of the Emergencies Act, tents and bouncy castles and hot tubs went up in the middle of Ottawa’s streets, and police did not take them down. Burning Man on the Rideau started; police did not or could not make it stop.

It was the opposite of peace, order and good government. Something had to be done.

The Trudeau government decided that the something to be done was the Emergencies Act.

Public hearings on use of Emergencies Act: What to know about the commission and what’s happened so far

The question for Justice Rouleau is whether, and to what extent, circumstances justified that decision. That’s the key legal matter before the inquiry. But there are other, perhaps bigger questions Canadians should have about the events of last January and February.

For starters: Does the Liberal government understand how to talk about protests by opponents? Does it understand what made these protests illegal?

Hint: It has nothing to do with the views of the protesters. Their political opinions are irrelevant.

In a liberal society like Canada, we don’t ban protests or restrict speech or arrest people because we disagree with what those people are thinking, saying or advocating.

The law can and must take action against people who – regardless of their opinions or their cause – are doing things that involve breaking the law, such as blocking roads, or honking horns all night, or taking over a neighbourhood and refusing to leave.

The blockade of Ottawa’s streets was wrong because it was a blockade; the blockade of the border crossing was wrong because it was a blockade. The issue was not that the blockaders were anti-vaxxers or (as the government tried to insist, from the day the convoy arrived in Ottawa) swastika-waving, war-memorial desecrating, Terry Fox-hating racists.

This page, which repeatedly advocated necessary public-health measures against COVID, and continues to urge people to get vaccinated and boosted, strongly disagreed with the protesters’ anti-vaccine and COVID-denying views. But that has nothing – zero – to do with why the trucks had to go from Parliament Hill. The blockades would have been just as wrong and just as illegal if they had been done in the name of any other cause, left or right. Including causes the Liberal government favours.

As for the Conservative Party, it has its own issues to wrestle with. If Justice Rouleau reports early next year that the Emergencies Act should not have been invoked, how will Team Poilievre react? Will it deliberately misconstrue that as a finding, that the wrong-headed and often law-breaking convoy movement was actually right?

Follow related authors and topics

Authors and topics you follow will be added to your personal news feed in Following.

Interact with The Globe