Magic words won’t save convoy, but Emergencies Act should be challenged anyway

Convoy protesters in Ottawa believe a number of crazy things, both about COVID-19 in general and public health measures specifically. But perhaps the most delusional belief they hold, even as the long-awaited arrests finally begin on the streets of the Nation’s Capital, is that they broke no real law and that the invocations of the Charter or some nonsense infused by sovereign citizens will protect them from the penalties that are coming their way. They’re bananas, but after more than three weeks of them ignoring the law and the law ignoring them, I almost can’t blame them for the misunderstanding.

While the couriers’ legal knowledge can be described as ‘deeply unserious,’ that doesn’t mean the legal challenges launched Thursday against the federal government’s invocation of the Emergencies Act should be similarly dismissed. . These challenges, launched by groups as disparate as the Canadian Constitutional Foundation and the Canadian Civil Liberties Association, are vitally important. The whole point of what is happening in Ottawa right now is to reassert the rule of law over the forces of lawlessness, and that means — it must mean — that government actions are subject to scrutiny. It is important that the federal government prove that these measures were necessary and not invoked on a whim.

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The threshold for a national emergency, as set out in the law itself, is that it “endangers the life, health or safety of Canadians and is of such a magnitude or nature that ‘it is beyond a province’s ability or authority to deal with it’. There are two elements here, and the government will have to prove both.

The first part — that these protests endangered people’s lives, health, or safety — will likely be easier to prove than critics of the federal government are willing to admit. Businesses in downtown Ottawa have had to close, in some cases continuously for weeks, out of fear for the safety of their staff and customers. The court orders that have already been issued against the protesters will no doubt help this case.

The most interesting and complicated question is whether these protests “really exceed Ontario’s ability or authority to deal with them.” I have argued here before that provincial responsibility for this mess cannot be forgotten or brushed aside: it started as a failure of the Ottawa Police (a creation of the province), and it persisted because the law and provincial resources were not brought to bear until weeks of chaos spilled over the Ambassador Bridge blockades. The courts — this will almost certainly end up all the way to the Supreme Court of Canada — will have to ask themselves what provincial incapacity really means in this case.

Consider one of the more concrete differences between provincial and federal emergency laws that have been invoked: Federal law allows the government to compel towing companies to help clear blockages, but provincial law does not. not. This is a clear and real difference in the texts of the respective laws, and it can be expected to be part of the arguments used to support the Emergencies Act. But the provincial government could also have called the legislature back to change its emergency powers to match those of the federal government – and Ontario has already demonstrated many times during this pandemic that it can enact a new law very quickly when needed, certainly faster than it has come to act during this course of events. So a court will actually have to be convinced of what the provincial inability to act was here.

Courts, however, must also consider the facts and not just the law. The utter failure of Ontario’s police force to act for weeks is a mystery that we will all collectively unravel in the years to come, but the failure was real and it really happened. That’s a relevant fact in this debate, and if you doubt it, well, we can probably expect the Ontario attorney general’s office to say in eventual argument that that province was, in fact, , not competent to restore order by itself. (It will be fun to watch.) A court could simply decide that the details of the police failure – and the failure of the provincial government and legislature – are irrelevant to the issue of provincial incapacity. : incapacity existed and the Federal Parliament had the power of Prime Ministers to act in cases like this by passing the Emergency Measures Act, so a court could very well decide that they were not It’s not up to guess the emergency responses in anything other than an unambiguous abuse case.

A more depressing question is whether a court ruling will actually matter in the long run. Any decision will only come after the streets of Ottawa have been cleared. Pro-convoy social media feeds are already comparing this absurdly late instance of law enforcement with the Tiananmen Square massacre of 1989, and it’s silly to think that this martyrdom fetish on the right will evaporate just because the Court Supreme Court of Canada said it was all legally valid. The convoy politics will continue to haunt us long after the last truck has been towed from Wellington Street to Ottawa.

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