Canadians need answers on Emergencies Act

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There are still two vastly different ways the truckers’ convoy is described. Participants and sympathizers look back and argue it was a benign protest with bouncy castles and barbecues. Ottawa residents, particularly those who live downtown, still talk about “the occupation.”

Both groups still need solid answers about what happened. So do all the Canadians who weren’t there but watched from the outside.

Yet the government hasn’t been in a hurry. Prime Minister Justin Trudeau waited till the last day allowed by law before he announced an inquiry Monday into the use of the Emergencies Act. The parliamentary committee that was supposed to provide quick oversight within a week of the Act being invoked has moved slowly because of disagreement between the parties.

So when Public Safety Minister Marco Mendicino told reporters Monday the government is “looking forward” to the inquiry, it had to be taken as political spin.

It seems pretty clear the government wanted to see some of the heat of the emotions around the convoy dissipate before people started poking into it. And perhaps some of that wariness comes from a lingering doubt about whether the use of the Emergencies Act met the standard required by the law.

The government filled the terms of reference for the public inquiry with questions about what led to crisis – the convoy, funding from foreign sources, the blocking of borders and impact on trade, the impact of misinformation and disinformation – but the inquiry cannot avoid that key legal question.

To its credit, Mr. Trudeau’s government has convened an inquiry with broad powers, headed by Ontario Court of Appeal Justice Paul Rouleau, that can call witnesses and subpoena evidence, with instructions to file a report by next February.

But there are two different types of questions for this inquiry. One is about the emergency. The other is about the use of the Emergencies Act.

No matter how many people dismiss the freedom convoy protestors as peaceful bouncy-castle operators, there can no doubt that there was an emergency created by blockades of border crossings and the takeover of downtown Ottawa. There was a failure to enforce the law, and in Ottawa, it lasted weeks.

There was an emergency. Justice Rouleau will certainly have to delve into the question of what kind of emergency it was.

Was there really the co-ordinated threat that Mr. Mendocino suggested when he said there were “strong ties” between individuals at Coutts, Alta., where four people were arrested with a cache of guns, and “extremist” leaders at protests in Ottawa? Were bizarre documents circulating in the convoy that called for the Governor-General and senators to take over government really manifestos for insurrection?

A second part of that is why it went so far. Why did police fail to prevent blockades, and particularly, why did Ottawa police fail to remove trucks or, for weeks, even issue tickets? Why did Ontario provincial government officials fail to beef up law enforcement in Ottawa? The lack of answers so far is still shocking.

Then there is the second category of questions, about the Emergencies Act: How it was used, and whether it was invoked in accordance with the law. No matter how much the government wants the inquiry to focus on the dangers of the emergency, Justice Rouleau must answer those definitively.

The Emergencies Act is only supposed to be used when no other law in Canada can effectively deal with an emergency. And it is not clear that standard was met.

In some ways, that was suggested by the way convoys were broken up, mostly with standard police anti-riot tactics, though on a massive scale. The charges laid afterward were for ordinary Criminal Code violations such as mischief.

The biggest stick wielded under the emergency orders – financial measures that allowed bank accounts and assets to be frozen – was primarily used as a threat to persuade protestors, especially truck owners, to move their vehicles and leave. Yet other laws, including provincial laws and the state of emergency Ontario invoked before the federal one, potentially allow authorities to threaten blockaders with financial penalties.

So, yes, Justice Rouleau can provide the country an indispensable service by airing information about what happened in this emergency, and what kinds of danger it raised. But when emergency powers are wielded in a democracy, there must always be an answer to a bottom-line question: Did the government react within the law?

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