Rideau St. looking towards Wellington St. in Ottawa during the Freedom Convoy 2022 protests.
Rideau St. looking towards Wellington St. in Ottawa during the Freedom Convoy 2022 protests. Credit: Mosbo6 / Wikimedia Commons

Just over a week ago, Canada’s federal government invoked the never-before-used Emergencies Act and, so far, it has had the desired effect. 

The streets of Ottawa are no longer controlled by an invading armada of giant, honking, diesel-fuel-belching vehicles.

Roaming groups of thugs are no longer, by their mere presence, intimidating residents, small businesses and workers, especially health-care workers, and most especially anyone wearing a mask. 

Scores of restaurants, shops, clinics, drop-in centres, libraries, and the National Arts Centre, National Gallery and other institutions can now safely reopen, after a forced three-week closure. 

Thousands of workers will start earning their wages and tips again.

Ottawa’s public transit can resume its regular operation. The transit authority is no longer forced to negotiate routes with occupiers wielding massive and potentially lethal machines called trucks. 

Elderly and disabled transit users will be able to get off at their regular stops. They will no longer have to walk many blocks out of their way.

Citizens who need medical treatments or tests can now get them, without risking harm or intimidation. 

Life for 1.3 million people in the National Capital Region is slowly returning to something resembling normal. The occupation had lasted for so long, and was so fierce and intransigent, some citizens worried it could become a permanent state of affairs. 

Not the same as the War Measures Act in 1970

The 1988 Emergencies Act is far different from the 1914 War Measures Act it replaced. 

When prime minister Pierre Trudeau invoked the War Measures Act in 1970, in response to two politically motivated kidnappings in Quebec, he did not need to seek the agreement of Parliament within seven days. 

The current prime minister, Justin Trudeau, had to do just that. 

On the evening of February 21, the House of Commons approved the government’s invocation of the act. The governing Liberals had the support of all 25 New Democrats, one of the two Green MPs, Elizabeth May, and the one independent MP.

The Conservatives and Bloquistes voted nay.

The War Measures Act the government used in 1970 required neither parliamentary approval nor parliamentary oversight. The Emergencies Act requires both. 

Now, the Senate is debating the Emergencies Act’s implementation, and could vote it down, though such an outcome is not likely. A number of Conservative senators, including former Ottawa police chief Vern White, vigorously support the Liberal government in this case. 

In 1970 there was no legal time limit for the application of the War Measures Act. The government of the day could maintain the act in force for as long as it chose to. The current Emergencies Act has a hard time limit. It can only remain in effect for a maximum of 30 days. 

The War Measures Act suspended such civil liberties as freedom of speech and assembly and the right of a detained person to counsel and a speedy trial. 

In the days and weeks after the government invoked the War Measures Act during the 1970 crisis, police in Quebec arrested hundreds of people who had no connection to the kidnappers. Authorities held more than 400 detainees virtually incommunicado for days, without access to family, friends, or lawyers, and without any due process.

All of those arrested during the current police action to end the Ottawa occupation have had access to legal counsel and are getting speedy bail hearings. 

One of the convoy’s chief organizers, Tamara Lich, had her hearing on February 22. Justice Julie Bourgeois denied Lich bail and ordered her kept in custody for the time being. Bourgeois said she did not believe Lich would desist from illegal activity if she were released. The judge based that assessment on Lich’s recent behaviour.

“You have had plenty of opportunity to remove yourself and even others from this criminal activity,” Bourgeois told Lich. “But you obstinately chose not to, and persistently counselled others not to either.” 

Arguably, the insurrectionist activities of 2022 have been far more consequential, for many more people, than two political kidnappings (and one murder) in 1970. 

Fifty-two years ago, many Canadians might have felt legitimately worried that the Front de Libération du Québec (FLQ) had managed to kidnap a British diplomat and Quebec cabinet minister, in broad daylight, with such seeming ease. 

But few people were directly affected by those crimes. Nobody had to miss a medical appointment; no grocery stores were forced to close; no transit was re-routed.

By contrast, this year’s so-called protest events have seen legitimate and elected governments forced to cede a significant measure of control over streets, roads and infrastructure to insurrectionists. Some of the notional protesters were heavily armed. The police uncovered a major arms cache in Alberta.

Vehicles can also be turned into weapons, as the world saw in Toronto in 2018 and Nice in 2016. The mere presence of hundreds of huge, constantly idling monster trucks on the doorstep of Parliament, and in the adjacent neighbourhood, constituted an ever-present danger. 

Federal government’s Hobson’s choice

It is a sorry commentary on both the city of Ottawa and the Ontario government that the federal government had to resort to the Emergencies Act. 

One day, we might find out what caused the Ottawa Police Service’s paralysis. Was it the fault of former chief Peter Sloly, or was it his troops, many of whom might harbour feelings of sympathy for the occupiers?

As for Doug Ford’s Ontario government, it showed it was capable of acting when it wanted to. When protesters blockaded the Ambassador Bridge and threatened a major economic sector the Ontario police worked diligently with local cops to reopen the vital trade link. 

But Ottawa was not a priority for the Ontario premier. Indeed, he seemed immensely relieved when the federal government stepped in.

Writer Margaret Atwood summed up the dilemma facing the federal government in a tweet:

“It’s an old playbook. Create chaos, remove validity from government, then create a demand for authoritarian order and step in; or, force the government itself to use muscle, then yell: ‘Tyrant!’ Bingo, democracy doesn’t work! Its enemies win.”

The federal government chose to, in Atwood’s words, “use muscle,” and, sure enough, the extremists and their allies (including some members of the Conservative Party) are now disingenuously yelling: “Tyrant!”

The Emergencies Act has allowed authorities to designate no-go zones, and to make it a crime to enter those zones for the purpose of assembling unlawfully. That made it possible to move the hundreds of occupiers, and their vehicles, away from Parliament Hill.

The act has also empowered authorities to commandeer necessary privately owned services, such as tow trucks. 

Some have scoffed that it seems extreme to declare an emergency because the police need tow trucks. But the tow truck operators of Ottawa had refused to respect their contracts with the city government. 

Could the Ottawa police have relied on Section 129 of the Canadian Criminal Code to force the hands of resistant tow truck operators? 

Section 129 makes it illegal for anyone to fail “to assist public officers or peace officers in the execution of their duty … after having reasonable notice …” But to make that legal provision work in the case of recalcitrant towing companies would require criminal charges and court proceedings for each one, individually. It would be a slow and cumbersome process at best, and, most likely, futile.

The Emergencies Act was quick and efficient for this purpose, when time was of the essence. The mere announcement that the act was in force worked like a charm. Towing companies dropped their objections and quickly agreed to do their part to uphold the law.

The other key power of the Emergencies Act is financial – the power to freeze offenders’ bank accounts and credit cards, and even access to cryptocurrency. 

This time-limited power is restricted only to actual offenders, to the owners of vehicles who have been actively participating in the threatening and obstructionist activity. 

The fear of a precedent

Conservative MPs have claimed, without evidence, that they have constituents who were mere small donors to the cause who had their accounts frozen. Both the RCMP and Finance Minister Chrystia Freeland say that claim is false. The financial measures have only targeted actual lawbreakers – convoy organizers and the owners of trucks who refused to leave the protest area.

Still, many, including the editorial board of The Globe and Mail, worry about the potential impact of the new financial powers. 

The Globe compared the freezing of bank accounts to the War Measures Act’s suspension of the right not to be held indefinitely without charge, the right of habeas corpus. It called the current financial measures a suspension of financial habeas corpus.

A parliamentary committee will soon be struck to oversee implementation of the Emergencies Act. MPs on that committee could demand that the authorities share all financial actions taken under the act’s authority with them – in secret, if necessary, to protect peoples’ privacy. 

Members of Parliament will also, no doubt, want to investigate and bring to the authorities’ attention any cases where their constituents claim their accounts have been frozen without just cause. 

If there is to be effective oversight of this act, it must not be a token or symbolic exercise. It must be real. 

Some on the left, including former New Democrat MP Svend Robinson, worry about the precedent set by the use of the Emergencies Act. Will a future right-wing Conservative government use the act to quash Indigenous people’s legitimate defence of their own lands, for instance?

Winnipeg NDP MP Leah Gazan spoke to those concerns: 

“I have been a part of movements for justice, including Idle No More, that sought to advance human rights and real reconciliation …There were no guns, threats of overthrowing the government, killing police officers and messages of vile hate. There is no comparison between Idle No More and an occupation that has featured wide-spread harassment of residents and workers, threatening of journalists … and self-appointed leaders who have spewed racist and xenophobic hate.”

British Columbia Green MP Elizabeth May was on the fence throughout much of the debate on the Emergencies Act. In the end she voted in favour. In response to a constituent’s concern over the precedent this use of the Emergencies legislation might set, May wrote:

“As I read it the attacks on land protectors, Indigenous people and others could not occur under the Emergencies Act. Our rights are better protected with the Emergencies Act than without it. We certainly know that the routine arrests and brutality at Fairy Creek and in Wet’suwet’en Territory, bulldozing through homeless people in park areas, and in so many places, are disgraceful and violate the Charter of Rights and Freedoms. But the enormous police action in Ottawa to remove the 18-wheelers and the well dug-in vehicles, stages and tents of the convoy and hundreds of protesters was conducted professionally, with discipline and resolve. And gently. The media was permitted to be right in the midst of the policing – no exclusion zones. No serious injuries. No deaths.”

The proof, in other words, is in the pudding – in the actual implementation of the act. 

More important for May is how the act can help confront very real threats of foreign meddling in Canadian affairs:

“It is not just the millions of dollars from non-Canadians to support the convoy. It is not just encouragement from Donald Trump, Ted Cruz and other prominent U.S. Republicans. The foreign influence that has contributed to the desperately worrying rise in disinformation. The rise in belief in things that are simply not true can be tracked to foreign propaganda outlets … We are infiltrated. This is a threat to our democracy.”

History has shown us – in Italy in the 1920s, in Germany in the 1930s, in Chile in the 1970s – when the democrats play nice while those who would overturn democracy act like bullies and break all the rules, democracy loses.

For a while, in Ottawa, it felt like mob rule had succeeded in intimidating, and effectively replacing democratic rule. 

The bullies should never have been allowed to gain the foothold they did. 

But if it took extraordinary powers to dislodge them, then it was legitimate to use those powers.

Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover Canadian politics. He has worked as a journalist and filmmaker for many decades, including two and a half decades at CBC/Radio-Canada. Among his career highlights...