Police stand guard during a protest organized by truck drivers opposing vaccine mandates in Ottawa, Ont. on Feb. 19, 2022.Alex Kent/Getty Images North America
The House of Commons is scheduled to vote Monday night on the Emergencies Act. We believe that MPs should either vote “No” or, if they vote “Yes,” only do so after imposing strict conditions on the exceptional legal powers the government has given itself.
A week ago, when the Trudeau government activated the never-before-used law, there were compelling arguments for and against its use.
At least four border crossings had suffered prolonged blockades, and the streets around Parliament Hill remained occupied by an encampment. Whether that was a national emergency, justifying the heaviest hammer in the federal legal arsenal, is something that lawyers and historians will debate for years to come. But for MPs and senators, the question of what was justified, seven long days ago, is now moot. A week is a long time in politics.
By the time the government declared the emergency last Monday afternoon, the most significant of the blockades, in Windsor, Ont., had been dispersed. The border blockade in Coutts, Alta., had been raided by police, who seized weapons from a group of alleged radicals, and the other protestors announced they were going home – also before the state of emergency. A Surrey, B.C., border blockade was largely dispersed Monday and the road fully reopened on Tuesday; also last Tuesday, blockaders at the Emerson, Man., border agreed to move out.
A week ago, the only significant and continuing incident of persistent lawlessness was the park-in on Parliament Hill. It was illegal and it had to be ended. But did it constitute a once-in-a-generation national emergency? Even that is now moot, the protestors and their trucks having been removed on the weekend.
As such, the question before Parliament is not: “Was Canada facing an unprecedented national emergency, a week ago?” It is rather: “Is Canada facing an unprecedented national emergency, today?”
Last week, there were arguments both for and against the Emergencies Act. But changed circumstances – the basic facts on the ground – have greatly strengthened the arguments against, to the point where they are overwhelming.
A week ago, the Conservatives and the Bloc Québécois said they would vote against the state of emergency, while the New Democrats – with enough votes to give the Liberals a majority – said they would support it. But the NDP also indicated that could change as conditions evolved.
MPs who are convinced there is still a national emergency should nevertheless be eager to limit the scope of the government’s emergency authority.
First limit: time. When it activated the legislation, the Trudeau government said it was doing so for 30 days and that it hoped to end the emergency sooner, if possible. It’s possible. Why not cut the period in half, meaning the emergency would end a week from now?
Second limit: exceptional powers. There should be a particular concern about two emergency powers the government has given itself.
There is a ban on people going to places, and bringing children to places, where an illegal demonstration may occur. Not where an illegal demonstration is occurring – where one may occur. That is a sweeping proscription.
The government has also given itself the authority to order financial institutions to freeze bank accounts, credit cards and investment accounts, on the say-so of the minister of finance, without so much as a court order.
Do we need new laws with more severe punishments for anyone who in the future occupies streets, interferes with infrastructure or blockades borders? Probably. As part of that, should people who engage in some criminal activities run the risk of having their bank accounts frozen? Possibly.
But if such laws are to be introduced, they should be passed by Parliament, after long study and debate. And punishment should only be imposed by courts, on someone who has been found guilty after trial by an impartial judge or jury.
In the FLQ Crisis of 1970, the War Measures Act suspended habeas corpus – meaning people could be held indefinitely without charge. That power was abused and is no longer available under the Charter of Rights.
The federal government’s new measures look like a suspension of financial habeas corpus. Is that constitutional? Is it something Canadians want?
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