Let the inquiry ask tough questions of Doug Ford’s Ontario

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When lawyers for the governments of Alberta and Saskatchewan told a public inquiry that Ottawa never needed to invoke the Emergencies Act, one might have wondered when Ontario was going to show up.

That province, after all, saw the biggest, thorniest, most expensive blockades, or protests, or occupations, in Ottawa and at the Ambassador Bridge in Windsor. Ontario’s government, and Premier Doug Ford, backed the use of Emergencies Act. And that’s no small thing because the province has jurisdiction over policing the streets.

But as it turns out, Ontario didn’t send a lawyer to the inquiry. It didn’t ask for standing. Alberta and Saskatchewan did, and Manitoba, too. So did the cities of Ottawa and Windsor. But Ontario’s provincial government didn’t bother. Mr. Ford’s government would rather not talk about the whole business.

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Yet there is no way to investigate what happened without posing some tough questions to the Ontario government. That’s particularly true now, after the lawyer for the Ontario Provincial Police, Chris Diana, told the inquiry that while emergency powers gave the police more tools, they already had sufficient legal authority without them to deal with the convoy protests.

The goal of the inquiry is to determine whether Justin Trudeau’s federal government met the legal standard for invoking the last-resort law that gave them exceptional emergency power – a law that can only be used when no other law in Canada will do.

But if the government of Ontario felt its own powers and even its own state of emergency were not enough to deal with an emergency on its own territory, we need to hear why. Did Ontario fail to use its existing legal powers effectively, or did it lack powers?

Alberta’s lawyer, Mandy England, appeared before the inquiry on the first day of hearings to argue that the blockade of the border crossing at Coutts, Alta., was lifted without using any special powers, saying Alberta will show that the Emergencies Act was not needed and “existing law enforcement tools that were already in place were completely sufficient.”

The Ontario government felt otherwise in February. Back then, Mr. Ford called the protests in downtown Ottawa a “siege” and the blockades of Ambassador Bridge “illegal” when he declared a provincial state of emergency. He backed Mr. Trudeau’s use of the Emergencies Act. But it’s politically controversial now, especially among his own party’s supporters. He doesn’t talk about it anymore.

The inquiry is expected to call a couple of Ontario public servants, and the OPP has been granted standing. But the inquiry’s lawyers have the power to summon witnesses and there should be a host of questions for Ontario.

The feds didn’t have much jurisdiction of their own until they broke the glass and hit the big red button to invoke the Emergencies Act. The Ottawa Police Service was responsible for policing the protests in the capital, but judging by their lawyer’s opening statement, their position is the scale of the convoy protest was unforeseeable, and once it was dug in, they were overwhelmed. The next step would be for the Ottawa police to turn to the OPP for reinforcements, but they didn’t come quickly.

There are questions about whether other provincial powers could have been used. The truckers blocking downtown Ottawa streets left when Emergencies powers were invoked, and the threat to freeze bank accounts was hanging over the head of truckers. Could the province have used its powers over commercial truck licences to achieve the same leverage? Ontario’s lawyers obtained court orders freezing donations to the convoy, so was it necessary for the federal government to give itself the power to order accounts to be frozen without judicial approval?

On Feb. 11, Mr. Ford declared a provincial state of emergency, which also gave authorities pretty extensive powers. Yet the Premier apparently felt it wasn’t enough, because he supported the use of the federal Emergencies Act three days later. And the emergency orders were to be used mainly in Ontario.

Those emergency powers were, by law, only to be used when nothing else would do. So many of those other legal powers were in Mr. Ford’s jurisdiction. The inquiry will have to hear Ontario’s explanation for why they weren’t enough.