Whatever else the public inquiry into the Trudeau government’s decision to invoke the Emergencies Act to end the chaos in downtown Ottawa earlier this year may or may not determine, it has already triumphantly vindicated one thing: the Emergencies Act itself.
The inquiry, formally known as the Public Order Emergency Commission, was not struck at the government’s discretion, but was explicitly mandated by the act, as was the joint parliamentary committee that is already holding hearings. The government will not be able to avail itself of the “if you knew what we knew” defence, beloved of tyrants everywhere: After the commission has finished its work, we will know what they knew.
The onus will be on the government, indeed, to show that what it knew was sufficient in law to justify invoking the act. The bar is set extraordinarily high – again, by the terms of the act itself. It requires the existence, for starters, of “threats to the security of Canada” that are “so serious as to be a national emergency.”
A “national emergency” means an “urgent and critical situation” that “seriously endangers” the “lives, health or safety of Canadians” to an extent that exceeds “the capacity or authority of a province to deal with it” or “seriously threatens” the “sovereignty, security and territorial integrity of Canada” and – crucially – which “cannot be effectively dealt with under any other law of Canada.”
“Threats to the security of Canada” takes a whole section of the Canadian Security Intelligence Service Act to define: It includes “espionage or sabotage” or “foreign influenced activities” of a clandestine nature that are “detrimental to the interest of Canada;” or “the threat or use of acts of serious violence against persons or property” for a “political religious or ideological imperative;” or “undermining by covert unlawful acts,” or “the destruction or overthrow by violence of,” Canada’s system of government.
The government has to show all of these things. Even if it can show there was a “national emergency” involving “threats to the security of Canada,” it has to show that this could not have been dealt with other than by the powers conferred by the act. Presumably it would have been aware of this beforehand, which would have weighed heavily on the decision to invoke it. For it would have known that its decision would be subject to a public inquiry, in addition to the multiple court challenges that have been launched against it.
So this was not, as various hysterics had it at the time, the invocation of martial law. It wasn’t even the War Measures Act, the legislation it replaced. No troops were in the streets; no Charter rights were suspended. Neither was the prospect of an inquiry after the fact the only limit on the government’s use of the act. It required ratification by Parliament within seven sitting days; it was limited in application to 30 days; it was subject to continuous review by a committee of Parliament; and the whole thing, or any single measure therein, could be revoked by a vote of Parliament at any time.
Still, the powers available to the government under the act are considerable, and of a kind that would not ordinarily be acceptable to a free society. We should not want governments to be able to invoke it lightly, or without cause, which is why the onus is properly on the government to prove its necessity. If it fails to do so there should be consequences, not only as they apply to the current government but as a deterrent to similar abuses of power by future governments.
The commission, headed by Ontario Court of Appeal Judge Paul Rouleau, will want to answer two questions.
First, was there in fact a “national emergency” as defined under the act? The commission will serve a purpose if it only establishes that there was a widespread breakdown of law and order; that the citizens of Ottawa, besides being unlawfully prevented from going about their business, were also harassed, intimidated and in some cases assaulted; and that the failure of all three levels of government to restore order for weeks on end had already led to similar protests by like-minded extremists at various points along the border, and threatened to encourage more.
That will certainly help the government in the court of public opinion – and discredit those propagandists who to this day insist it was all a cheery exercise in face-painting and bouncy castles. It will also call into question the judgment and character of those Conservative MPs, including party leader Pierre Poilievre, who gave aid and comfort to the mob. But it will not be enough, on its own, to meet the legal test of a “national emergency.”
Second, assuming there was a national emergency, was it necessary to invoke the Emergencies Act? Again, there will be one test for the court of public opinion and another under the law. The government may well be able to show that the act was effective: that is, that the additional powers it gave to law enforcement were instrumental in restoring order. It is probably not coincidental that order was, in fact, restored, shortly after it was invoked. That will be enough to satisfy many people.
But to satisfy the tests of the law, it will have to show that the same result could not have been achieved by less draconian means. If nothing else, the inquiry may solve the riddle of why the police so signally failed to act before then. Was it that they did not have the powers they needed, or that they did not use the powers they had?
It may be that the answer lies somewhere in between: that although police had the powers they needed on paper, the authorities could not be persuaded to use them effectively until the act was invoked – in particular, so far as it allowed the various police forces at hand to be combined under one command.
That’s as important to preventing future such episodes. One part of it, certainly, is to insist that governments must always show why it is necessary to use the coercive powers of the state, even in a public order emergency, and use only such powers as are necessary to resolve it. But the other part is to see to it that such prolonged and abject breakdowns in law and order do not occur in the first place.
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