“We needed to see it to believe it.”—Ottawa resident talking about police clearing out Ottawa’s downtown core after 22 days of occupation.
Our trust in government was at such an all-time low that when the Federal government invoked the Emergencies Act, many of us didn’t believe the police would enforce it until we actually saw them moving through the streets of Ottawa one slow step at a time.
Quick recap: Prime minister Trudeau invoked the Emergencies Act on Feb 14. That same day the blockade at the Ambassador Bridge in Windsor, Ontario was cleared and the following day the RCMP said goodbye (it was touching) to the protesters blockading the border at Coutts, Alberta. And finally on Feb 19 the police began to disperse the protesters occupying Ottawa.*
Notwithstanding this dramatic turn of events, premier Kenney is challenging the Emergencies Act in court. He says it’s unjustified and unnecessary because provincial law enforcement is perfectly capable of clearing illegal blockades.
Except it isn’t.
A week and a half ago, Ric McIver, Kenney’s Transportation Minister, wrote to the Feds pleading for help in dealing with the Coutts blockade. He said the RCMP had exhausted all local and regional options and were unable to get their hands on the heavy equipment needed to remove vehicles, tractors, and trailers blockading the border crossing.
The Emergencies Act provides exactly the kind of tools McIver would need if another blockade springs up or, heaven forbid, some idiots decide to occupy Edmonton, but Kenney doesn’t want any part of it.
Recent comments by two U of C law profs provide a clue.
Crisis of confidence
In an ABlawg post Shaun Fluker says the premier is misconstruing the real reason for the proclamation of a national emergency, it’s more than just the blockades and the occupations; it’s a full blown crisis of confidence in government.**
This crisis arises from way the Kenney government imposed covid public health restrictions over the past 2 years and was exacerbated by the failure to use the new enforcement powers the government created under the Critical Infrastructure Defence Act to remove the Coutts blockade. (Indeed, rather than enforce these new powers members of Kenney’s caucus attempted to negotiate a backchannel deal with the protesters at Coutts).
Public health restrictions
Prof Fluker says the Kenney government handled the covid pandemic with almost no regard for basic democratic processes. Public health restrictions were often incoherent and difficult to understand, sprung on the public at media scrums with no advance notice and provided little or no explanation as to why one behavior was acceptable and another was not.
In addition to the failures in due process, transparency, and accountability described by Prof Fluker, let’s not forget the premier’s attempt to appease the anti-restrictions crowd by constantly reminding them that the restrictions he himself had imposed were extremely damaging and a violation of their Charter rights and freedoms.
Add to that Kenney’s condemnation of Justin Trudeau for the federal truckers’ vaccine mandate, his all-for-show trip to the US to meet with various governors to pressure President Biden to lift the vaccine mandate on the US side of the border, and his penchant for retweeting photos of empty grocery shelves and big trucks doing whatever it is big trucks do, and before you knew it, a gang of Albertans were blockading Coutts, some were conspiring to murder RCMP officers, and others were holed up in Ottawa trying to throw the prime minister out of office.
This volatile situation was inflamed by the protesters’ willingness to believe misinformation and conspiracy theories and their utter lack of understanding of the section 91/section 92 division of powers and the Canadian justice system. (No, we don’t have First Amendment rights, no, the police do not have to read us our Miranda rights and no, it’s not a tenet of international law that waving a white tee shirt or undershorts will make you immune from capture, that only works in cartoons).
Now here’s the kicker, as my former law prof Nigel Bankes recently tweeted, one of the most important accountability provisions in the Emergencies Act is the requirement for an inquiry into the “circumstances that led to the declaration being issued.” Prof Bankes says such an inquiry would most certainly include an investigation into Kenney’s “complete and utter failure to contain the events at Coutts.”
No Emergencies Act, no inquiry. How about that.
Kenney is going to court to argue the Emergencies Act is not justified in these circumstances.
He’s implied that even Tommy Douglas would agree with him because Tommy Douglas said using the War Measures Act in 1970 was like using a sledgehammer to crack a peanut. Given that the present and past federal NDP leaders, Jagmeet Singh and Thomas Mulcair, support the invocation of the Emergencies Act for many reasons including the fact that the EA, unlike the WMA, is subject to the Charter and the Canadian Bill of Rights, Kenney just might have gotten this one wrong.
Maybe what’s really bothering Kenney is that his attempt to appease his pro- and anti-public health measures supporters blew up in his face while Trudeau’s decision to invoke the Emergencies Act is supported by 66% of Canadians.
Poor Jason Kenney; outplayed by Justin Trudeau again.
*The Ambassador blockade likely would have cleared in any event. Some Coutts protesters said the Emergencies Act together with the discovery of a cache of firearms caused them to go home.
**See also Mr Fluker’s interview with Markham Hislop.