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Extraordinary Measures

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Extraordinary Measures

Justin Trudeau’s government uses national emergency powers to try to end the trucker protests. February 16, 2022
Politics and law

The ongoing saga of Canada’s “Freedom Convoy” took an extraordinary turn this week. In response to protests in Ottawa and blockade actions at some Canada–U.S. border crossings, the Canadian government invoked the Emergencies Act, giving itself exceptional powers to try to end the nearly three-week-long protests. It’s difficult to overstate the legal and political magnitude of this decision, which is undoubtedly among the most controversial in Justin Trudeau’s tenure as prime minister and will be the subject of debate for years.

Start with the context. Readers may know that the “Freedom Convoy” refers to a group of transport truck drivers and their supporters, who arrived in Ottawa in late January to protest cross-border vaccine mandates and other public-health restrictions. The protestors have essentially taken over parts of the city’s downtown, including in and around the federal parliament buildings. They’ve committed to remain there as long as pandemic restrictions persist and have raised millions of dollars from crowdfunding sites such as GoFundMe and now GiveSendGo.

The protests have been disruptive. Local residents recently obtained an injunction from a judge to stop the truckers from honking their horns, idling their trucks, and setting off fireworks. And some evidence suggests extremist elements among the protestors, though their numbers and influence remain uncertain. But no serious instances of violent criminality have occurred thus far.

Notwithstanding their presence in the national capital, therefore, the protests had generally been treated as a local law-enforcement matter. Federal and provincial officials had deferred to the City of Ottawa administration and police force to manage the protests.

That began to change late last week, for two reasons. First, the Ottawa protests began to inspire parallel demonstrations at Canada–U.S. border crossings around the country. These included the Ambassador Bridge, between Windsor, Ontario, and Detroit, which carries about $360 million per day in two-way cargo, or about one-quarter of all Canada-U.S. trade. The blockade there shut down trade flows for six days, resulting in an estimated $3 billion to $6 billion in goods that were unable to cross the major bridge. Temporary production suspensions in the auto sector on both sides of the border were the most obvious result.

The second reason is that the City of Ottawa’s response to the ongoing protest has been widely viewed as weak, disorganized, and ineffectual. It’s no accident, for instance, that the Ottawa police chief recently stepped down. The municipal government has lacked the capacity and imagination to bring an end to the protest, which has solidified its presence in and around the parliamentary precinct with new, semi-temporary structures, block parties, and so on.

The Trudeau government thus opted to invoke the Emergencies Act in an effort to nationalize the law-enforcement effort. In the process, it granted itself extraordinary powers to put financial pressure on the protestors. American readers will be forgiven for not being familiar with the law; most Canadians aren’t either. Since the measure was passed in 1988, the government has never used it, largely because of the high legal threshold for establishing an emergency.

Its text suggests a legal framework for the federal government to respond to temporary emergencies such as war. The act defines a “public emergency”—the type allegedly happening in this particular case—as a “national emergency” that’s “urgent, temporary and critical” and “seriously threatens” the ability of the government to preserve the sovereignty, security, and territorial integrity of Canada. This definition matters, as it sets a practical, yet contestable, bar. While the ongoing Ottawa protests are highly disruptive and arguably lawless, it’s far from clear that they reflect a “national emergency” or represent a “threat to the security of Canada.”

That’s the biggest problem with the Trudeau government’s decision. One can support police action to break up the protests and still be skeptical of the claim that they represent a threat to the country’s fundamental security. That the border blockades have been mostly neutralized in recent days using existing laws reinforces the point: the Freedom Convoy remains mostly a localized problem, not a national emergency.

That hasn’t stopped the Trudeau government from announcing a series of extraordinary powers. So far, it has mandated that private tow-truck companies must clear transport trucks from the protest site and it has required banks to monitor and halt transactions that would channel money to the protestors, prompting criticism from the Canadian Civil Liberties Association and other constitutional experts.

And the government has claimed only some of the powers available under the law. The Emergencies Act grants even more scope for restrictions on public assembly in so-called “protected places” and on travel to certain sites, as well as other curtailments of individual liberties. The situation is moving fast, and the government has yet to table the requisite parliamentary motion outlining how it fully intends to use the act.

A protest movement that began with the goal of reasserting freedoms curtailed during the pandemic faces a new and expanding set of state-imposed infringements. It’s hard to predict what will happen next—but the Freedom Convoy, and the government’s extraordinary response to it, will unquestionably shape Justin Trudeau’s political legacy.

Photos: DAVE CHAN/AFP via Getty Images (left) / Scott Olson/Getty Images (right)

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