There was no emergency, but don’t expect the Commission to throw the government under the trucks

By Bruce Pardy, December 6, 2022

Read the original article at the publisher’s website here

Between 1963 and 1970, the Front de libération du Québec (FLQ), a separatist organization in Quebec, committed hundreds of bombings and several robberies, killing six people. In October 1970, they kidnapped British trade commissioner James Cross, and then kidnapped and killed Pierre Laporte, a minister in the Quebec government. In response, Pierre Trudeau’s government invoked the War Measures Act, the only time it had been used in peacetime. In the years that followed, the invocation of the Act became regarded as having been a dangerous overreach of government powers and breach of civil liberties.

The Emergencies Act, enacted in 1988 to replace the War Measures Act, was designed to have higher thresholds and to be more difficult for a government to trigger. In February 2022, with the trucker convey embedded in downtown Ottawa, the Emergencies Act was invoked for the first time by Justin Trudeau’s government, which declared a “public order” emergency based in part on “the use or threats of serious violence”.

In late November, the Public Order Emergency Commission reviewing the use of the Emergencies Act, headed by Justice Paul Rouleau, finished hearing evidence from witnesses.  After testimony from Ottawa police, the Ontario Provincial Police, the Royal Canadian Mounted Police, the Canadian Security and Intelligence Service, the City of Ottawa, federal government officials, cabinet ministers and the prime minister, what does the evidence show?

The trucker convoy in Ottawa committed no violence and made no threats of violence. There was no storming of Parliament. There were no attempts to overthrow the government. There was no assault, arson, rape, bombing, or kidnapping. No intelligence suggested the presence of weapons. When a court issued an injunction to stop their honking, they stopped. They carried messages critical of the government on the sides of their trucks. Supporters walked along Wellington Street wearing Canadian flags and carrying signs. As OPP Superintendent Pat Morris put it during his testimony, “the lack of violence was shocking.”

Yet officials spoke of violence all around them. Acting Ottawa police chief Steve Bell testified of the violence experienced by the local community. On cross-examination by convoy lawyer Brendan Miller, Bell agreed that he was not speaking of actual violence “as defined in the Criminal Code” but of “the violence that our community felt” from “the culmination of actions that the occupiers engaged in” like honking horns. Ottawa city councillor Mathieu Fleury said that protesters committed microaggressions against Ottawa residents, although declined to explain what that meant, and called the parked convoy trucks “weapons.”

Minister of Justice and Attorney General David Lametti said he didn’t feel safe and feared for his staff but described no violent encounters. According to Ottawa resident Zexi Li, living in Ottawa during the convoy was like living in a lawless horror movie, but the only violence described in her evidence was residents in her apartment building throwing eggs at the truckers from their balconies.

What illegal acts were the truckers committing? Parking. The truckers were unlawfully parked on Ottawa streets. Ottawa Police Services, which had advance warning, could not figure out how to prevent the trucks from arriving, and together with the OPP, the RCMP, the city, province and federal government, could not figure out how to make them leave. They could not get tow trucks to remove them, and could not, or would not, ticket and arrest. The “emergency” was the inability of a web of agencies, authorities, and departments, strangled by their own bureaucracy and ineptitude, to remove big trucks peacefully parked on the streets in front of Parliament Hill.

The government was embarrassed. Deputy Prime Minister Chrystia Freeland, who had been told by an American official that the truckers were making Canada look like a “banana republic,” had urged that the protesters should be identified as terrorists. Meanwhile, Lametti and Public Safety Minister Marco Mendicino, who in February had said that the cause of the emergency was “rhetoric of an ideological position,” shared texts about sending in tanks.

Prime Minister Justin Trudeau testified that invoking the Act was justified to keep people safe. If you don’t use the tools you have, Trudeau said, “how would I explain it to the family of a police officer who was killed, or a grandmother who got run over trying to stop a truck, or if a protestor was killed in a violent clash with someone else?” In other words, for Trudeau, “threats of serious violence” did not mean that someone had said they would use violence, but that there existed a situation in which something violent might occur, even if by accident. By that criterion, emergencies arise every day in every province in Canada.

Whether the invocation of the Emergencies Act was justified is not a serious question. The circumstances were not even in the ballpark. But no one should expect the Commission to come to that conclusion. Its mandate is not to rule on the legality of the government’s actions but, as described in the Act itself, to inquire into “the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” The Commission has no power to find liability. Its report will not bind the government. The Commissioner, appointed by the government to run an inquiry called by the government, is not likely to throw the government under the trucks.

The Commission is a ritual, and the purpose of ritual is performance not outcome. The Commission’s purpose has already been served: to create the impression that whether the use of the Act was justified is a serious question to consider, and to make it appear that there is accountability without having to provide it. Perceptive Canadians will notice that the product does not match the packaging.

Only in a country with fragile, hysterical leadership could the trucker convoy be regarded as an emergency justifying the infringement of civil liberties. God help us when we have a real emergency – and, no doubt, the next time when we don’t.

Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.