After the Freedom Convoy, What Is the Emergencies Act Actually For? |
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After the Freedom Convoy, What Is the Emergencies Act Actually For?
Courts ruled Ottawa overreached in handling the capital’s siege, leaving the law in limbo
The Emergencies Act is now nearing forty years old. Its future is uncertain, its past now problematic.
It may be the only piece of Canadian legislation never intended to be used. Made into law in 1988, it was devised for a severe national crisis, giving the federal government extraordinary powers to direct a response—on a strictly temporary basis.
The law addressed a range of scenarios, from a “public welfare emergency” caused by natural disaster, disease, or pollution, to political disruption amounting to a public order breakdown, to international emergency, and, finally, war. It was hoped, of course, that none of these situations would ever arise—a hope easier to indulge in the late 1980s, with the Cold War winding down and democracy seemingly in the ascendant, than it is today.
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The Emergencies Act sat, forgotten, for decades. But along came COVID-19 restrictions, which sparked the Freedom Convoy in mid-January 2022—a protest led by truckers and their supporters who opposed vaccine mandates and other public health rules. It culminated in a weeks-long occupation of downtown Ottawa and blockades choking off trade at key border crossings—from Windsor’s Ambassador Bridge to routes in the Prairies and British Columbia.
Who can forget the spectacle? Big rigs parked outside Parliament Hill and the Prime Minister’s Office. Diesel engines running, horns blaring, children in the cabs, an encampment in downtown Ottawa that blended politics with playtime. Bouncy castles! Fireworks! There was also a darker side: a fear of extremist violence. Discovery of a weapons cache at the Coutts, Alberta, border crossing was a major tipping point for the Liberal government of then prime minister Justin Trudeau. It responded by invoking the act on February 14, 2022.
This singular use has been enmeshed in controversy, and judicial review, ever since. The fourth anniversary of that moment offers a chance to rethink the role of the legislation in our public life. The Emergencies Act faces two fates: ready it for a twenty-first-century age of global “rupture,” or put it under lock and place the key back on a very high shelf.
The Emergencies Act is, in a sense, the child of the War Measures Act, an older emergency legislation born in the midst of global conflict and designed to give Ottawa sweeping powers to confront existential threats. It was relied on during World War I and World War II to mobilize a war economy and lock down national security, including harsh internment measures against diaspora communities whose loyalties were feared, unjustly. It was in place when Igor Gouzenko defected in September 1945 to warn Canadians of the Soviet spy threat—and was used to arrest and detain Canadians suspected of involvement in Soviet espionage.
Then, in 1970, Prime Minister Pierre Eliott Trudeau invoked it to quash what his government deemed to be an “apprehended insurrection” in the course of hostage taking and subsequent murder at the hands of a couple of violent “cells” of the Front de libération du Québec, an extremist movement that sought Quebec’s independence from Canada. At the time—and since then—many questioned the restrictions on civil liberties, including arrests of alleged FLQ supporters and the deployment of the military to Montreal streets.
Despite criticisms and unease about the War Measures Act, governments were exceedingly slow to fashion something new. Not until 1988 was it abolished and replaced by the Emergencies Act. A key architect of the revamped legislation, Perrin Beatty—as minister of national defence at the time—today calls Trudeau’s earlier use of the law “the most egregious violation of civil liberties in my lifetime.” He believes it was a political move meant to smash the FLQ, not to crime-solve. Beatty told me the new act reflected a broad consensus that governments may need to assume extraordinary powers in different kinds of emergencies—but only in exchange for strict limits. Those powers, he emphasized, had to be “time-limited” and subject to “several layers of oversight and accountability.”
That framework, built to prevent another 1970, would not be tested until 2022, when the government was faced with a fast-scaling mobilization aimed squarely at its legitimacy. Police underestimated the Freedom Convoy’s scope and staying power. Intelligence misread its objectives and capabilities. Federal and provincial coordination came apart.
With the protests in their eighteenth day, and facing........