By invoking the Emergencies Act, the feds go from no action to the nuclear option

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The federal government’s decision to go from virtually no action to the nuclear option to tackle the convoys that have paralyzed downtown Ottawa and seized control of select border crossings to the United States should come with an explanation. That is not an opinion. The Emergencies Act states that “a declaration of a public order emergency shall specify concisely the state of affairs constituting the emergency,” though no written explanation was produced Monday, when Prime Minister Justin Trudeau announced he was invoking the act for the first time since its creation in 1988, even though provisions under the act came into force immediately.

Justice Minister David Lametti said that he believed the conditions for declaring the emergency had been met. Those conditions include a situation where Canadians’ lives and safety are in danger and/or the security of the nation is under threat, and where, crucially, the crisis “cannot be effectively dealt with under any other law of Canada.” Mr. Trudeau said the decision to invoke the Emergencies Act was a “last resort,” though he declined to explain why existing laws were insufficient to tackle the continuing occupation. Indeed, it’s not as if the Ottawa Police Service, the Ontario Provincial Police and the RCMP have not been equipped with the tools and legal backing to confront the protesters, but that, for whatever reason, they have largely declined to use them.

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On Tuesday, the government finally published its order in council outlining why it believes a public-order emergency exists. It cited continuing blockades and the threat of force against measures to remove protesters, adverse effects on Canada’s economy and its trade relationship with the U.S., the breakdown of the supply chain as a result of blockades and the potential for increased violence and unrest that threatens the safety and security of Canadians. Yet the government did not outline why or how it came to believe that all options under existing law had been exhausted or otherwise rendered insufficient. On Monday, police cleared the border blockade in Windsor, Ont.; on Tuesday, they cleared the blockade in Coutts, Alta. Both blockades were ended using conventional policing – not extraordinary powers granted by the federal government.

It is true that the situation in downtown Ottawa is much more complicated. There are kids among the protesters, and potentially, also a cache of deadly weapons. The police are outnumbered, and it’s not easy to clear a site where protesters are holed up in 10-tonne semis, especially when tow truck operators have refused to haul away the trucks out of concerns over retribution. No one should be under any illusions that there is a simple solution to an occupation that has been years in the making, particularly when extremists have committed to staying put until the government has been ousted and replaced.

But the complexity of the situation doesn’t in and of itself justify the federal government’s decision to opt for one of the most extreme options it has at its disposal. The government can now essentially order tow-truck operators to remove vehicles from protest sites after rendering them an essential service. It has permitted banks to freeze personal and corporate accounts without a court order, and without risk of being sued later on, which can have serious ripple effects both on families and an individual’s ability later to qualify for financing. These are not trivial infringements on liberties, which is why the onus is on the government to make the case that the situation meets the thresholds outlined in the act, and that it has run out of all options short of declaring a national emergency.

Perhaps the convoy can still be dispersed without authorities having to employ extreme measures. But the Emergencies Act has already been invoked, and in doing so, the government has shed sacrosanctity that surrounds never-before or rarely used legislation. The effect may be that the use of such extraordinary legislation becomes normalized, which has been the case, for example, with the use of the notwithstanding clause.

Indeed, its first use in recent years was seen as an aberration, and then it was used again, and again, to the point where few now would be surprised to see it embedded in another piece of new legislation. So while those who abhor the convoy and its tactics might applaud Mr. Trudeau’s decision to pull out his trump card after more than two weeks of occupation, all should be wary of the precedent it sets. The government’s decision today breaks the dam for a future government to invoke the Emergencies Act over, say, a railway-pipeline blockade, or a downtown protest over racial injustice. If the current situation really and truly meets the threshold of a national emergency, why wouldn’t the same also apply to a future protest?

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