JOHNSON – The Ottawa truck convoy and why democracy is hard

A FEDERAL JUDGE says the 2022 Liberal government’s use of the Emergencies Act in order to remove convoy protesters was unreasonable and infringed on protesters’ Charter rights.

Justice Richard Mosley determined that while the protests “reflected an unacceptable breakdown of public order,” the invocation of the Emergencies Act “does not bear the hallmarks of reasonableness – justification, transparency and intelligibility.”  There “was no national emergency justifying the invocation of the Emergencies Act,” end quote.

Two years and this decision later, its important to focus as much on the non headline making details of what Mosley said in his actual decision.

For example, in his ruling, Mosley did not find that invoking the Emergencies Act violated protester right to freedom of association.

“They were free to communicate with each other in pursuit of their collective goals and form whatever organization they thought necessary to do so elsewhere,” he wrote.

Furthermore, and importantly, Mosley did not find that the government’s invoking of the Emergencies Act violated protesters Charter right to peaceful assembly.  A very important part of this decision that is being misquoted by the protest supporters today.

Much of the decision surrounded one of the claims brought to him involving the government freezing bank accounts of certain protesters.  That, he found unconstitutional.

All that said, his ruling is by no means sympathetic to the Freedom Convoy. “(At the time) I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order,” he wrote. “I had and continue to have considerable sympathy for those in government who were confronted with this situation.”

Had he been in that situation at the time, he admitted, he “probably would have supported the Emergency Acts use,” but he can’t legally find the justification for the invocation of the Act given the actual actions of the protesters.

“The Acts regulations prohibit only a narrow, defined range of activities and prohibits them for no more than nine days,” he wrote. “The regulations were tailored to limit constitutional rights no more than reasonably necessary to address the issues.”

A Maru Public Opinion poll completed days after the Act was invoked in February 2022 found two-thirds of Canadians nationwide wanted the protesters removed, even if “people who will not leave may get hurt, or worse.” In other words; if a big – all night honking, convoy of semi trucks parked at every Canadian’s house for a month and the Emergencies Act was available … two-thirds of Canadians would support its use.

This is literally what happened to Ottawa residents.

More fundamentally to his dissenting decision, Mosley argued, the government’s notion that the occupation represented a “national emergency” or a “national security threat” simply does not hold up.

“While I agree that … the situation was critical and required an urgent resolution by governments, the evidence, in my view, does not support the conclusion that it could not have been effectively dealt with under other laws of Canada, as it was in Alberta, or that it exceeded the capacity or authority of a province to deal with it,” Mosley wrote, referring to necessary preconditions under the Emergencies Act.

What he is saying is that there were other ways to tow the convoy away and dispatch the law on unyielding protesters, but the Emergencies Act was not the right tool to use to get it done.

The problem is that in each province there is a different body of laws to deal with situations like this, which would be enforced by a variety of different law enforcement bodies: Provincial Police, Municipal Police or the RCMP, or a combination of any of the above.

Federally, there’s not much legal wise that can be enacted on jurisdictions that are supposed to handle such localized situations.

Normally, the job of the federal government is to determine the larger over-arching set of laws to govern the land as a whole … like the Constitution, the Charter of Rights, and Criminal Code.

What the federal government can do is legislate to deal with specific active situations.  This is what they already have on the books, and it’s the Emergencies Act.

This is legislation for situations beyond that which one regional government is able to handle.  An actual insurrection, a revolutionary coup, a terrorist act … or criminal takeover not unlike what is happening in Haiti or Ecuador by lawless armed gangs intending to disrupt society.

This is the intended situation the Emergencies Act is designed to deal with.  An actual existential threat on our peaceful society’s legal institutions and our way of life. That’s what the Emergencies Act is meant for; times when temporarily losing a few Charter rights to give the government the chance to act, is at times like those, an easy trade off to protect our society and country.

Obviously, this is not the same level as a bunch of parked, noisy trucks, and that was the problem with invoking it.  It is a sledgehammer against insurrection, not intended for relatively peacefully intended, localized protest regarding government policy.

Otherwise, the day before the protest trucked into Ottawa, federal legislation had nothing at all to deal with this, all it had was a law that was intended to stop a revolution … literally.

It has been said many times, that the real legal and enforcement failure here was with the Ontario Provincial Police and the Ottawa Municipal Police services.  They did nothing, and obfuscated for weeks on end, so the responsibility fell to the Ontario Government to step in and order their law enforcement to do their job.

The Ontario Government … did nothing.

All the while, the residents of Ottawa continued to suffer their own Constitutional violation. It became so ridiculous, that the feds had to step in … and do something, anything.

The Emergencies Act to all intents and purposes was all they had to work with, and so they ran with it … knowing full well that we would be here today, discussing that it wasn’t the right tool.  At the end of the day, it wasn’t their job and they didn’t have the legal backup, but they made it end anyway.

Most of the rest of us thought the protests made their point … as odd and disjointed as it was … so it was time for it to end and they made it plainly obvious that they weren’t going to go quietly on their own, so …

Many of us still feel the same today.

Where all this stands today, post court decision, is an obvious lacking device in Canadian law.

When the Constitution and Charter were written and the War Measures Act was replaced with the Emergencies Act … no one could possibly imagine that there would one day be fairly regular Canadians who we would not normally define as criminals, insurrectionists or terrorists, but just people who are opposed to normal compliance to what used to be called the social conservative norm, and would act out against the political structure or its leaders in a societally egregious way, and purposefully abuse the intent of the Charter’s freedoms, and be disruptive for no better reason than to get noticed.

Not revolutionaries or terrorists … just timbit armed attention seeking armchair disruptors.

If this was a far away country living with a more tenuous grasp of democracy, or another country with a blatant adherence to an authoritarian, despotic definition of human rights, it’s an easy rule to write, and enforce.  There would be no invocation of an Emergency Act … it would just be regular business and the military would arrive and open fire.

But that’s not our way.  We have a standard.  One that people around the world want to be a part of, and other countries strive to one day emulate.  We live and breathe the rule of law.

That’s why this question matters.

If we need some new federal law to keep disruptors like this from stopping the rest of us from continuing with our lives … what does that look like?

What do we tell our federal leaders to legislate so that the next time something like this happens, the feds have some over-riding legal power to order enforcement?

Is there a possibility for an Emergencies Act Lite, for less critical non revolutionary, non overthrow, non-coup or non-terrorist actions?  A new legislative Act that allows for the temporary removal of some Charter rights so law enforcement can end or remove inappropriate protests and actions, that are adversely affecting the vast majority of citizens right to a Charter supported existence.

An Act that has to permit the forceful ending of the right to assembly,
and temporarily curtail the right for personal liberty.

How do we create that without unintentionally constructing a two-tiered society.  The one that objectively entrenches “you can protest, and you can not.”

This is a fundamental Charter problem.

In creating this, we just sidestepped the Constitution, and opened up a potential future society where the ‘rule of law’, a codified constitutional democracy with a Charter of Rights and Freedoms that entrench equality for all and the importance of dissenting or oppositional voices … run secondary.

It also opens the door to a situation where a less than democratic leader could use this potentially flawed legislation to silence political critics … or opposition parties, empowering a despot.

See the slippery slope of writing some legislation to move a bunch of parked vehicles?

In this type of democratic society, we can’t say that Charter rules ‘apply to me, but not that guy with a horn’.  To do so, opens the same can of worms as before the civil rights movement in the States.  Remember, the U.S. had a constitution that recognised racial equality, but they did it anyway.  A thing to this day, they have still not fully reconciled.

Writing law that intentionally circumvents something like Charter Rights … is even worse.

At the end of two years and a Federal Court judge and his 100-odd pages, where he both sympathized with the government’s decision and, given the legislation they had to work with, he also found that same decision to have been beyond the powers of government … and add the reality that you really can’t write legislation to deal with stuff like this without setting the Constitution on fire … and what’s left to do?

That’s right … no answer. This is the thing about a Constitutional democracy; gaping holes and limits.  Normally we don’t really want it any other way, but there are costs for it being messy.

Maybe that’s what the convoy actually did. Showed us just how fragile our freedom really is.

David Johnson is a Kamloops resident, community volunteer and self described maven of all things Canadian.