“Just watch me.” Prime Minister Pierre Trudeau uttered these words to a CBC reporter in October of 1970 when Quebec’s deputy premier and a British diplomat were kidnapped by violent Québécois separatists. Reporter Tim Ralfe may not have known it, but the elder Trudeau’s words signaled a monumental change in how Canada would treat civil liberties in times of crisis. Trudeau invoked the War Measures Act, which led to almost 500 suspected extremists being arrested without charge.
Fifty-one years later, Trudeau’s son, Prime Minister Justin Trudeau, followed in his father’s footsteps when he invoked the successor of the War Measure’s Act, the Emergencies Act, in response to Ottawa’s Trucker Protests, which had occupied the heart of Canada’s capital for more than two weeks. This action allowed the younger Trudeau to clear out Ottawa’s streets and bring an end to what would become a three-week-long occupation.
But the end of the protests did not signal the end of the controversy that would surround Trudeau’s use of the Emergencies Act. The Act contains a provision that requires Parliament to begin an inquiry regarding its use within 60 days after the emergency ends and to issue a report no more than 360 days thereafter. On April 25, 2022, Trudeau called the required inquiry into his use of the Emergencies Act during the 2022 Convoy.
What the Emergencies Act allowed
Trudeau’s invocation of the Emergencies Act allowed Canada’s Federal Government to prohibit protests in Ottawa’s downtown core without provincial help. Trudeau declared the protests a “Public Order Emergency,” one of four kinds of emergencies that the Act enumerates. The Act defines a Public Order Emergency as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” In such emergencies, the Federal Government is authorized to prohibit protests within a particular area, prohibit the use of certain kinds of property, and require individuals to render “essential services” to aid efforts to end the emergency.
In February, Professor Dwight Newman of the University of Saskatchewan explained that Parliament, in regard to the Trucker Convoy, “could say that people can’t protest in a particular area or they could even limit protest altogether. They could order tow truck drivers to assist them in removing vehicles from Parliament Hill.”
By February 20, the Royal Canadian Mounted Police (RCMP) cleared out protesters from Parliament Hill and had all trucks occupying the site towed while the Federal Government ordered financial institutions to stop doing business with convoy organizers.
The “Freedom Convoy” caused mass concern throughout the country, but Trudeau’s government relied on one specific caveat in Ontario’s Emergency Management Act to invoke the Federal Act: the Federal Emergencies Act allows the government to compel tow truck drivers to assist in clearing out the convoy while Ontario’s version does not. Professor John Lindsay noted that, “All the current legislation across Canada, with the exception of the Yukon, contains explicit powers for the government to have qualified persons or classes of persons render such services as they are qualified to provide. Ontario only allows for the ‘[authorization]’ of such services but stops short of the power many other provinces wield to require such service.” Trudeau remarked that “Right now, the situation requires additional tools not held by any other federal, provincial or territorial law,” citing the Federal Government’s authority to compel services from both tow truck drivers and financial institutions, laying the groundwork for the clearing of the convoy and cutting off their funds.
Carleton University law professors Sean Richmond and Berry Wright publicly supported Trudeau’s decision. They noted in an Ottawa Citizen op-ed that the storage of propane tanks in residential areas, the obstruction of emergency vehicles to Ottawa’s downtown, and the honking-induced sleep deprivation that many residents experienced, along with the Ottawa police’s “acknowledged inability” to restore order sufficiently justified the use of the act. However, not all academics agreed with the views of Richmond and Wright.
Why Trudeau’s actions were criticized
Criticism of the Emergencies Act’s invocation was inevitable, given that this was the first time it had been used since its passage. Its predecessor, the War Measures Act was also harshly criticized for its suspension of civil rights, including the internment of Japanese Canadians during the Second World War. This criticism led to the creation of the Emergencies Act as a replacement, which acknowledged the Federal Government’s responsibility to protect civil rights in times of crisis, but an abridgment of civil rights, however necessary, is bound to attract disapproval.
The Emergencies Act’s use was criticized by both those in the legal profession and civil society groups. David Schneiderman, a law professor at the University of Toronto, wrote in a Globe and Mail op-ed that he witnessed the Emergencies Act’s creation while working as a lawyer for the Canadian Civil Liberties Association (CCLA). Noting that a national emergency is defined as “[a]n urgent and critical situation rises to such a level where the “lives, health or safety” of Canadians are seriously endangered,” Professor Schneiderman said:
Justin Trudeau’s government has not provided compelling evidence that the convoy protest in Ottawa could not have been adequately dealt with under provincial authority, with or without federal help, as occurred at the Ambassador Bridge and at the border crossing at Coutts, Alberta. Nor has it been convincingly shown that existing provincial or federal laws were not adequate to the task – enabling the co-ordination of police forces, the seizure of funds or the removal of occupiers, for example.
Schneiderman also said that the Ottawa Protest did not amount to “a threat to the security of Canada,” a criterion of a public order emergency.
Lakehead University law professor Ryan Alford, a critic of Canada’s response to the coronavirus and a civil liberties advocate, raised similar concerns in an analysis for the Macdonald-Laurier Institute, writing:
If politicians are willing to mislead the public in order to evade the most fundamental constitutional limits on their powers, they destroy the basis of their own authority. If they are willing to do this, it is unclear why any other abuse would be considered beyond the pale. This is a critical moment for the country; we can return to the constitutional principles that allowed us to remain secure in our rights and freedoms.
The CCLA echoed similar sentiments, saying in a statement that: “While action in Ottawa was necessary, the federal government’s national invocation of the Emergencies Act was not… In this instance, the use of the Emergencies Act to limit freedom of peaceful assembly and privacy across the country was unnecessary, unjustifiable and unconstitutional.” The CCLA also sued the Federal Government over the matter back in February, a case that the organization is still pursuing despite the end of the emergency.
What comes next
On April 25, pursuant to section 63 of the Emergencies Act, Prime Minister Trudeau announced the formation of an inquiry into his government’s use of the Act. Trudeau appointed Justice Paul Rouleau of Ontario’s Court of Appeals to head the inquiry. Trudeau said that Rouleau will “will look into the circumstances that led to the Emergencies Act being invoked, and make recommendations to prevent these events from happening again,” and the Minister of Public Safety, Marco E. L. Mendicino, said “I am confident that this process will examine the circumstances that led to the invocation of the Emergencies Act fairly and impartially, as well as make potential recommendations regarding the management of public order emergencies.” These statements suggest the inquiry will look into whether the invocation of the Act was necessary, and consider how to deal with a similar event in the future.
But in his op-ed Professor Ryan Alford was skeptical of the inquiry’s promise. Alford also acknowledged the success of the McDonald Commission established in the 1970s, which investigated Pierre Trudeau’s invocation of the War Measures Act. Their report led to “the repeal of the War Measures Act and the dissolution of the domestic intelligence branch of the RCMP.” However, Alford also said that “Without substantial pressure from the public, the cabinet-controlled process to launch the inquiry risks devolving into yet another whitewash. Thankfully, the constitutional challenges brought by civil liberties organizations can, in addition to their own merits, serve as a force multiplier.” Alford raises skepticism about whether the Liberal-NDP supply agreement will compromise Parliament’s ability to objectively evaluate its own actions.
Emergencies, civil liberties, and the future of Canada
The Emergency Act inquiry is critical to Canada’s legal future. The inquiry findings will undoubtedly help shape Canada’s responses to similar events in the future. Moreover, the inquiry will set a precedent for further use of the Emergencies Act. If Trudeau’s usage is vindicated, then it is possible that the Act will be used to crack down on more troublesome demonstrations. If not, the Act’s scope may be narrowed to include severe emergencies which pose imminent physical harm to Canadians.
William Hibbitts is a JURIST Features correspondent based in Halifax, Nova Scotia. He is a recent graduate of Bates College.