I’ve been watching the convoy hearings. It’s not an easy slog. They don’t keep what was once adorably called bankers’ hours, and you have to put up with gaggles of lawyers droning at their self-important pace. Yet it’s been gripping.
The government says the convoy was extraordinary and required the first-ever declaration of the Emergencies Act.
The main appeal of the act is that it isn’t the War Measures Act, a blunt instrument used by Justin Trudeau’s dad in 1970 to effectively put the country under military sway because of a serious though limited crisis in Quebec. The question was, can you deal with events that have a hint of insurgency but don’t go full-on rebellion? It turns out the answer is yes, which is encouraging.
You also need an Emergencies Act because emergencies happen! They come screeching at you and you have to do something. This one’s probably as well thought out and hedged as it could be. It contrasts with the War Measures Act, which was a wretched framework for responding to everything up to actual wars — which no one calls emergencies because you almost always see them coming. Yet the War Measures Act was all we had till this act which, praise God, anticipates “mere” emergencies. (It pains me to admit but yes, we owe it to Brian Mulroney’s government, in 1988.)
Emergencies, it turns out, aren’t just sudden. They’re quirky. A key to this one, said Ottawa Mayor Jim Watson at the inquiry, was tow trucks. He tried getting them but the owners refused. Then came the act and lickety-split, the crisis was over. That’s emergencies for you. You’ve got all kinds of abstruse principles at stake but really, you needed some horsepower to haul off the big rigs. It’s also about time: a difference of a week can alter history itself.
(Duration is a difference between the convoy and the U.S. January 6 Capitol riot. It was confined to one building for one afternoon and didn’t have time to spread across the country, the way the convoy example did, to Windsor and Alberta.)
The Canadian Civil Liberties Association (CCLA), whose very name demands sober attention, says while it’s “sympathetic” to Ottawa witnesses who were tormented under the siege, “we are focused on the narrow question of whether the government’s actions were lawful or constitutional” — and sadly they weren’t.
Narrow? I’ll say. The law is too limited an instrument to make judgments on decisions like this. Other things pertain: politics, psychology, history, common sense. A narrow focus on lawfulness can’t include them, but they deserve inclusion.
The CCLA is also concerned with the “precedent” set by using the act. You want a bad precedent? How about the constitution itself, which includes the notwithstanding clause? It allows governments simply to exempt their legislation from basic human rights guaranteed in the constitution — as Doug Ford announced he’d do right after being elected. You can hug the law as tight as you want, but it can be as shifty as human nature or government policy.
That’s why we make governments submit to electorates and not just courts, where everything’s decided by learned judges according to law. The law is of limited use in life, though some take to it like kittens to catnip. Most normal humans aren’t excessively enamoured by rule of law avowals; they’ve had too much instructive experience. They hope it works, as it sometimes does. But in the end we rely less on it than on politics — rule of the people — dodgy as it too can be.
When politics disappoints, it can lead to mythologizing the law where some wise judge always makes it right, like Rod Steiger in “The Hurricane.” But then you get a Trump majority on the U.S. Supreme Court or our notwithstanding clause. Sorry, but there are no guarantees of wise governance aside from a watchful populace who skeptically examine and judge (!) what their duly chosen leaders are up to.
This column was originally published in the Toronto Star.
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