A Stark Choice

As I write this, there are reports that the Federal Government will address the trucker convoy disruptions by invoking the 1988 Emergencies Act, which replaced and limited the 1914 War Measures Act. Pierre Elliott Trudeau invoked the War Measures Act during the 1970 October/FLQ Crisis: its only use in peacetime. To date, the Emergencies Act has never been used.

In my opinion, the reporting/commentary on this convoy and the various blockades it has spawned has been characterized by a lot of selective observation, emotional argument, and outright hypocrisy. That applies to both media and politicians. But there have also been some excellent analytical articles written by informed people. Here are some excerpts from, and links to, articles that make sense to me.

As usual, Andrew Roman provides a thoughtful analysis on the likely legality of using the Emergencies Act in this situation. He also provides some useful ways of thinking about this specific problem of how to handle the trucker convoy, and the more-general problem of managing for legitimate dissent/protest in a highly inter-related and inter-dependent democracy. Here’s his conclusion, presented as five lessons for government . . .

  1.  Don’t impose needless vaccination mandates, or other exercises of authority, just because you can.  Instead of quarantining truckers, who provide an essential service at a time of supply chain delays, a testing program requiring only 15 minutes for the results of a test would have been adequate.
  2. Don’t inflame the targets of these needless mandates by smearing people who disagree with the government.
  3. Enact a law that draws a line between a legal protest and a criminal occupation.
  4. When a convoy of trucks is being organized to invade the capital or blockade bridges, don’t wait until after they are well entrenched with funding, supply lines and infrastructure, and then just urge them to go away.  Take the necessary pre-emptive action.
  5. Respect the rule of law. Don’t praise or blame unlawful occupations on political party lines.  Blame them all, and treat them all alike.

I’ve also read some of the articles he cites and particularly recommend Brian Lee Crowley’s piece. Here’s his conclusion . . .

The rule of law is not an instrument of authoritarianism but of freedom when it is applied without fear or favour.

It is a measure of the corruption of the understanding of the rule of law in today’s Canada that almost no one in the political parties seems capable of articulating that there is no contradiction between supporting demonstrators’ demands and requiring that they respect the law.

Here’s a National Post piece by Greg Taylor, whose end-of-article squib says this: “served in the Canadian Army for 25 years. Following his military service, he worked as a provincial emergency manager and a consultant. He has significant experience planning for, and dealing with, public welfare and public order emergencies.”

If I may summarize his argument (since it’s behind a paywall), it has two salient points.

First, invoking the Emergencies Act would not actually give the police or municipal/provincial authorities any powers they now lack.

Second, invoking the Emergencies Act is inappropriate in that it is limited to “threats to the security of Canada” as defined in the Canadian Security Intelligence Service Act (CSIS Act):

  • espionage or sabotage
  • foreign influenced activities (foreign donors unlikely to meet the definition)
  • serious violence against persons or property for the purpose of achieving a political, religious or ideological objective
  • overthrow by violence of the constitutionally established system of government in Canada

If that’s what we think is really happening in Ottawa, in Coutts, and elsewhere, then the prime minister might declare a national emergency, but thus far a compelling case that these protests are “threats to the security of Canada” as defined in the CSIS Act hasn’t been made by him or anyone else in a position of authority. (italics indicate direct quote)

Wesley Wark’s earlier piece in Policy Options presciently addresses this very limitation of the Emergencies Act in this situation and suggests a fix.

What’s wrong here? The government is sitting on unusable legislation that is not fit for this purpose and has never been modernized to meet the changing needs of societal protection. There is nothing here to help the governance centre hold, while it provides a woeful excuse for inaction and buck-passing.

In place of an unusable Emergencies Act, what is needed is rapid passage by Parliament of amended legislation that would add to the definition of threats to the security of Canada a new category: the deliberate and reckless interference with listed critical infrastructure, to include offices of government and the courts, health services and border crossings. After that should come enforcement action.

As for me, I’ll just close with Crowley’s opening words, which capture my thoughts:

One law for all or no law at all.
That is the stark choice we face in a democracy like Canada.

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6 Responses to A Stark Choice

  1. Tom Watson says:

    It seems to me that your line below the link to this piece is important:
    “Democracy is hard work, but worth it.”


    There are varying views as to whether invoking the Emergencies Act was an appropriate way to deal with the occupation…but when the stated aim of those who occupied the city of Ottawa for three weeks was the removal of the government, that didn’t seem to me to display a primary interest in democracy.

    As for Crowley’s thought of “One law for all or no law at all,” which half of that did the protestors highlight?


    • Isabel Gibson says:

      Tom – I think the truckers had a variety of aims and were not anything like an organized, homogenous group. In Coutts, when the Mounties found a cache of weapons the rest of the protestors went home, saying that violence was not what they were about. From the reporting I’ve seen, it looks like there was an embedded group of hard-core types in Ottawa, so if we get out of this with no deaths I will count that as a significant success. In the meantime, the court challenges to the Emergencies Act will wend their way through and we’ll see what comes of that.

  2. John Whitman says:

    Isabel – “Without fear or favor” – that is the key. The “Occupation of Ottawa” lasted 4 days longer than the aboriginal railway blockades, and perhaps could have ended much sooner if anyone from the governing party had actually talked to the occupiers instead of pumping out insults. As you know, I walked Wellington Street each day from the first Saturday until the police operation began just to fact-check what the media was reporting. I am triple vaxxed and I think anyone not vaccinated at this stage is showing questionable judgement. Nonetheless, the truckers I talked to were polite and only wanted someone to listen to their concerns. They weren’t there to overthrow the government, they just wanted a government that would listen to their concerns and provide some consistency in its policies.

    • Isabel Gibson says:

      John – My (perhaps forlorn) hope is that this episode hasn’t just hardened positions all around. We don’t have to like or agree with everyone but we do have to find a way to live more-or-less together.

  3. Ian Hepher says:

    There’s a lot of wisdom and insight here, all in one place, for which I thank you, Isabel, and your responders as well.

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