Despite its revocation, the damage has been done
To paraphrase a well-traveled truth that if mistakes of the past are ignored, they return with a wallop far stronger than their original impact, creating precedents that could be abused by future generations.
Prime Minister Trudeau’s revocation of the Emergencies Act this past week, before it barely became operative, leaves many questions unanswered. Where is all this heading?
A bit of history, many questions. In Canada, The War Measures Act of 1914, temporarily shifted power from parliament to executive branch of government, giving Prime Minister and Cabinet arbitrary jurisdiction in adopting emergency measures in times of war, invasion, or ‘apprehended insurrection’. Understandably, the act was put into force during two world wars, but not so clearly understood is the reason why it was also invoked in the 1970 October Crisis, or more to the point – why it was passed, and then quickly revoked, last week, in response to the freedom convoy that hit Ottawa late January 2022, disrupting the city, according to some, for three weeks.
Potential and actual abuses of emergency powers were exposed in the 1970s, following Pierre Elliott Trudeau’s controversial invocation of the act in 1970, a widely-criticized move, prompting comprehensive constitutional revisions that brought all emergency powers within constitutional provisions. When war, rebellions, and threats to peace and order erupt, most constitutional governments suspend usual procedures to deal with regime-threatening conflicts.
This is what Canada would have had to abide for at least a month, before the Prime Minister made an about face. Nonetheless, the situation regarding emergency powers is noteworthy.
Canada has faced substantive threats through most of its history. Nineteenth-Century rebellions were put down by expanding national governments. Twentieth-Century real emergencies were declared in two World Wars. Suspicious invocation of the act in 1970 engendered criticism of the government’s use of emergency powers and led to reform efforts – The Constitution Act of 1982. In recent weeks, ‘Emergency’ – referring to commonsense approaches to crisis resolution – has escalated to heated debate over appropriate use of martial law.
Martial law is regarded as suspect by constitutional scholars who condemn its peacetime use because it rests upon no settled principles, entirely arbitrary in its application. It’s not law, indulged rather than allowed, unjustified in peacetime, the illegitimate cousin of military law. A notion of legality inherited by modernday Canada. However, Canada’s martial law is now reduced to matters of executive declaration.
A good look at how the so-called trucker convoy emergency was defined and handled by government/political leaders provokes pertinent questions. The critical question, the answer to which is essential to the preservation of the rights of all Canadians, is: Did the 2022 Canadian government overreact and then overreach/overact by ramming through the House of Commons the subsequently-suspended Emergencies Act? The proposed legislation became law with the support of only two-offive sitting political entities in the House – the Liberals and the NDP in a rather tight vote of 185 to 151.
Agreed, on extreme occasions, every prime minister/head of government must be ready to risk going beyond the strict lines of law, when the preservation of public security requires it. As it turns out, Prime Minister Trudeau declared the equivalent of martial law, claiming the presence of a local insurrection. If so, why didn’t Federal Public Security Minister Marco Mendocino act earlier, from the start? Why didn’t the Prime Minister meet with the convoy leaders, at their request? His response: ”Why should I meet with you? You’re racist, misogynist, and terrorist. And if that’s not enough, he painted all non-vaxxers and protest supporters with the same brush. Why did Trudeau in the House of Commons accuse an opposition Jewish Member of Parliament of supporting terrorists who carried Swastika flags (one flag, to be exact) when she said the Prime Minister was abusing his power.
Was the government’s handling of the freedom convoy an anachronistic understanding of the Constitution of Canada on the Prime Minister’s part? Yes, the Constitution explicitly allows local legislatures to ask federal protection against domestic violence. But when is martial law, or its equivalent, presumably allowed or justified? Unquestionably, to stop armed insurrection too strong for civil authority.
Competent authorities must determine what degree of force the crisis demands and if the government must resort to wartime conditions to maintain itself to overcome unlawful opposition. After much deliberation – was the public safety really at stake during the truckers’ demonstration? Was the emergency real? Why did Ottawa Chief of Police Peter Sloly reach a “mutually agreeable separation” with the Ottawa Police Services board amid heavy criticism for not being tough enough with truckers and protesters? Why would Canadians be subjected to privacy invasions legalized by Emergencies Act provisions allowing government to freeze their bank accounts?
It was reported by some non-compliant-to-government media, that the bank account of a Canadian single mom was frozen because she donated $50 to the truckers through the GoFund campaign, donating when it was still legal. This isolated but potentially widespread act-of-invasion-of-privacy was morally doubtful at best and potentially criminal at worst, neither of which is acceptable in a supposedly free society such as Canada claims to be.
Although The War Measures Act gave sweeping powers to the executive, it stipulated that to exercise these powers there ‘‘shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists.” The executive was also explicitly given the power to censor media; arrest, detain or exclude persons; control ports and transportation; control commerce; and appropriate, control, forfeit, and dispose of property.
The question now is: Why did the Canadian Civil Liberties Association question Trudeau for what it considered overreach and violation of constitutional rights? Why were some protesters roughed up by police (video evidence)? Why were convoy leaders denied bail after being charged with unsubstantiated crimes? Why does the Canadian population have to rely on non-Mainstream Media outlets to challenge Trudeau’s questionable attempts to arbitrarily oppress all Canadians with The Emergencies Act, while most Mainstream Media, sang the same song, uncritically, without any healthy skepticism, continually reflects what appears to be an imbedded approach to reporting on the happenings in the nation’s capital? Furthermore, why did the NDP support the Liberals by voting with them to pass the Act, exhibiting no respect for those of the party who have been fighting for human-rights-for-all since the 1930s.
No mainstream media pointed to problems arising from provisions of the Act. Since the defense of liberty and property of individuals rests with the provinces and not with the national government, the key constitutional question raised by many experts is whether the powers seized are within the range of federal power. This may be behind Alberta’s intent to challenge the Act if it became operative. Are these extraordinary times which necessitate extraordinary measures? Peaceful, although boisterous, truckers? Extraordinary times? A real head-scratcher!
It’s unthinkable that the Emergencies Act could have led to dictatorship and oppression, even in short spurts of time in 2022, yet there’s clear evidence that democracy was in temporary perilous suspension under an authoritarian government. Is this what our forefathers fought for and died to avoid?
It’s unclear if an emergency actually existed. Was there a real emergency, or was it fabricated by authoritarian forces who wanted to shackle everyone with the yoke of submission-to-authority. “You either do as we tell you, or you will have your rights curtailed. If you don’t submit (to vaccines). You will lose your rights.”
The one sacred thing in democracy is freedom from government oppression. There is protection under Canadian Constitutional Law that the governing class governs from the consent of the people. The people don’t exist because of the government; government exists because of the people. Democracy must prevail.