The government’s use of the Emergencies Act was found to be reasonable, but what are the implications?
On Feb. 17, the federal government’s Public Order Emergency Commission inquiry released its five-volume final report. It concluded that Prime Minister Justin Trudeau met the threshold for invoking the Emergencies Act.
From January through February 2022, what started out as a trucker-based protest against COVID-19 vaccine mandates expanded in scope, and the disruptive protest movement went well beyond complaints about public health measures. With the so-called Freedom Convoy, it became an organized plan to disrupt other people’s rights and freedoms.
It was also a movement which was bound together by anti-government sentiment, mistrust of media and belief in conspiracy theories.
The protest actions reached the boiling point with the blockading of United States-Canada border crossings and the occupation of Ottawa. To quell the crisis, the federal government took the unprecedented action of invoking the Emergencies Act. It worked to enable action to end the siege of Ottawa and prevent expansion of the protests.
The act was put in place on Feb. 14 and revoked on Feb. 23 as the occupation in Ottawa was cleared.
The commission’s conclusion that the invocation of the Emergencies Act was an appropriate action exemplifies the workings of the act itself, which requires a report be submitted to Parliament and released to the public within 360 days of the emergency declaration being revoked.
The impacts of the Freedom Convoy’s protests were felt in many ways, given the occupation of downtown Ottawa’s streets lasted for more than three weeks. Ottawa incurred costs of more than $36 million. International border blockades halted as much as $3.9 billion in trade activity.
At the time, extremists appeared to operate in a seemingly unchallenged manner across Canada. Ottawa’s downtown was rendered unlivable for its residents. Vitriolic symbols of antisemitism and racism were on display in the protests.
Protesters carried U.S. flags, associating the Ottawa occupation with the attack on the U.S. Capitol on Jan. 6, 2021.
Given the impacts, federal officials claimed they has a solid rationale for the use of extraordinary powers to suppress a situation of lawlessness rising to the level of a national emergency. The findings — over 2,000 pages long — from the Public Order Emergencies Commission agreed there had been reasonable grounds for invoking the act.
Reasonable does not always mean right
The invocation of the Emergencies Act was deemed to be reasonable, but being reasonable does not mean being right.
The editorial board of the Globe and Mail took a firm stand to disagree with the decision to invoke the act. The Canadian Civil Liberties Association maintains its opposition to use of the Emergencies Act based on questions related to limits to freedom of peaceful assembly, intrusions into privacy and unconstitutionality.
Several groups are spearheading four separate legal challenges, contending the crisis did not warrant the first ever use of the Emergencies Act.
The question of what is the right action to take with respect to use of extraordinary powers during crisis is a legal quagmire. Implications for democracy and accountability can be troubling. Dangers include democratic deficits in the legislative process, the risk of extraordinary measures being normalized and limited accountability.
Political winners and losers
Politically, the commission’s report was a win for Trudeau. The commission’s findings have shown that a prime minister can invoke the Emergencies Act and emerge mostly politically unscathed — if protocol is followed to the letter of the law.
However, Ontario’s government was also dealt a political blow. In effect, the commission has put provincial governments on notice that they need to show up during emergencies. The Ottawa blockade was determined to be not just a policing failure, but a failure of provincial leaders to uphold their responsibilities under federalism.
Unlike Trudeau who took to the stand to provide testimony, Ontario Premier Doug Ford did not respond to a summons to appear before the inquiry. Ontario’s senior leadership stonewalled the commission, leaving it at a regrettable disadvantage.
Now, the Emergencies Act is no longer an arcane and untested act — it is a policy with an implementation track record.
In future emergencies, will prime ministers feel more confident in using the extraordinary powers afforded by the Emergencies Act? Will future premiers think twice about their reluctance to manage emergencies in their jurisdiction or refuse to provide testimony to mandated public inquiries?
We now have an example for how the Emergencies Act can be reasonably used. The findings of the inquiry will inform the rationale for the next invocation of the act, but bigger questions remain unresolved. One remaining dilemma: will disasters of other origins — natural, technological or social — necessitate the invocation of the Emergencies Act?
This article is republished from The Conversation Canada.