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Motion to Confirm the Declaration of a Public Order Emergency


Honourable senators, it is ironic that we are debating the imposition of emergency measures at what appears to be the tail end of a COVID crisis that we have been living through the last two years.

You may recall that there was much talk about invoking the public welfare criteria for emergency measures in the early days of COVID, but nothing came of it. Fast-forward twenty-four months and we suddenly find ourselves under the Emergencies Act, not for public welfare, which would have been appropriate for a health emergency, but for public order. This is more than a curious bookmark in our COVID saga, and I will return to it at the end of my speech.

The crux of today’s debate, however, is not the criteria for the invocation of the Emergencies Act, even though I know many senators will want to focus on that important legal test. The more important underlying issue, I believe, is whether you consider the so-called “Freedom Convoy” protests — three weeks in, on the day the act was invoked, with no end in sight — to be an acceptable exercise of the protesters’ rights and freedoms and, hence, be allowed to continue unabated.

I am less interested in the source or sources of the protesters’ discontent than I am in the cumulative effect of their actions, since my point would apply regardless of the type of freedom espoused by the protesting group. If you believe that the Ottawa protests should have been allowed to continue for reasons to do with constitutional protections, legitimate civil disobedience or a belief that the disruptions caused by the protesters are an acceptable price to be paid in a democratic society, then your position on this motion should be very simple: You should vote against it. But if you believe that the protests — again, not protests in the abstract, but these particular protests that have been going on for three weeks and which, until a few days ago, had no end in sight — if you believe that these protests had to be stopped, then the only question remaining is how to make that happen.

I have not heard too many parliamentarians argue that the disruption caused by the Ottawa protesters is acceptable and that we should have let them continue to protest, so I am proceeding on the assumption that there is broad agreement that the protests had to end. If I am wrong in my assumption, I hope you will stand up and say very clearly that you support the right of the Ottawa protesters to continue. That will, in turn, clarify the basis on which you presumably oppose the motion. I would disagree with you, but at least we can understand each other’s position and how we came to different conclusions.

Let me turn now to arguments that, on one hand, accept that it was necessary for the protests to end but, at the same time, are against the use of the Emergencies Act. One may, for example, hold the view that the federal government could have negotiated an end to the protests and thus avoided invoking emergency powers. Bear in mind, however, that the protesters were demanding, among other things, the end to all COVID mandates and the overthrow of the government, with the help of the Senate, no less; and they were insistent on not removing their trucks, trailers and trampolines until the Government of Canada revoked the entirety of COVID-related restrictions.

On what basis would a duly elected government even contemplate negotiating with a mob to, first, overturn public health measures that most Canadians support and, second, defrock itself via the decree of a self-appointed group of noisy protesters? It is one thing to acknowledge pandemic fatigue, which all of us are experiencing; it is quite another to succumb to mob rule.

For all the huffing and puffing about how the Emergencies Act subverts democracy, let’s be very clear: What the protesters were calling for is the very definition of democratic subversion. To leave their demands unchallenged or, worse, to validate those demands by negotiating with them is to aid and abet the subversion and would amount to an abdication of governmental responsibilities.

A more compelling argument against the invocation of special powers is that there was no need for them in the first place. This would be the case if there are existing authorities on the part of the provincial or federal governments to effectively bring the protests to an end. But if those powers existed — for example, through the states of emergency declared by both the City of Ottawa and the Province of Ontario — why were the protests not curtailed after emergencies were declared? There are two possibilities: The first is that the powers of the province and municipality were insufficient to disperse the protesters; the second is that the leadership of those jurisdictions were unable or unwilling to exercise those powers.

The first reason amounts to a justification for the Emergencies Act. On the second point, some might argue that the unwillingness of a provincial or municipal government to exercise their powers does not justify the federal government invoking the Emergencies Act. However, the decision on whether to invoke the act is based not only on whether local authorities have the powers to respond to emergencies, but also on whether those authorities are capable of doing so and whether those capabilities are likely to be effective.

It seems reasonable to me that the federal government concluded that, after three weeks of disruption, their subnational counterparts did not have the capability to exercise whatever powers they had at their disposal. The fact that the Government of Ontario supports the Emergencies Act lends further credence to the appropriateness of its use.

One can, of course, speculate about the reasons for insufficient action on the part of the municipal and especially the provincial government, but that is beyond the scope of this motion and is ultimately a matter for the electorate to contemplate.

A third line of argument against the Emergencies Act is that even if the protests are intolerable and existing authorities are insufficient, the thresholds set out in the act have not been met, in particular, the definition of a national emergency. Under this view, the best one can hope for is the application of any existing laws against individual protesters and the use of general policing efforts to contain the protests until they, in the fullness of time, petered out. I would call this the “suck it up” school of thought, and it is, of course, exactly what Ottawa residents were asked to do for the last four weeks — suck it up.

And so, it boils down to whether the thresholds have been met. But who decides and how is the decision made? Here is Perrin Beatty, then Minister of Defence in the government of Brian Mulroney, testifying before Parliament 34 years ago to the day:

When the country is threatened by a serious and dangerous situation, the decision whether to invoke emergency powers is necessarily a judgement call — or more accurately — a series of judgement calls. It depends not only on an assessment of the current facts of the situation, but even more on judgements about the direction events are in danger of moving and about how quickly the situation could deteriorate. . . .

He goes on:

. . . the decision to declare an emergency is an exercise of political judgement and the Parliament of Canada is obviously an appropriate forum for questioning that judgement.

Which is where we are today, and why I believe the key question in coming to your judgment, my judgment and the judgment of this entire chamber is the question I posed at the opening of my speech: Was the “Freedom Convoy” protest and its crippling effect on residents, small enterprises, municipal services and our very system of government — three weeks in and with no end in sight — something that had to be stopped in relatively short order?

I believe the answer is yes. Here is the Oxford English Dictionary on the definition of “emergency”: It is, inter alia, “. . . a state of things unexpectedly arising, and urgently demanding immediate action . . .”

I think we can agree that it is an “emergency” when hundreds of vehicles descend on the nation’s capital and entrench themselves on major streets in Ottawa, resulting in massive disruption and economic loss to residents of the city. But was it a “national” emergency? Well, the object of the truckers’ protest was the national — i.e. federal — government, and the epicentre of the disruption was Parliament Hill, which is the seat of the national government. Even setting aside protests in other parts of the country and the real risk of further proliferation of protests, the fact that the mother of protests was in the nation’s capital makes it, I believe, a national emergency.

I disagree with the Canadian Civil Liberties Association, which believes that the invocation of emergency measures was unwarranted because, to quote their Executive Director, “Disruptive protest while often unlawful . . . can be the most effective way of raising awareness.”

The CCLA opposed the Emergencies Act when it was introduced in 1988, so it is not surprising that they would oppose the first use of this bill more than 30 years later. Having reviewed their submission on what was known as Bill C-77 in 1988, I am sympathetic to some of their reservations. I appreciate the CCLA’s concern that the use of the Emergencies Act in this instance should not result in what they call the “normalization” of emergency powers.

But I put to it you, colleagues, that the greater risk today is the normalization of a style of protest that paralyzes critical infrastructure; holds siege to the nation’s capital; punishes businesses, workers and residents who live around the areas of protests; and seeks to overturn government policies by ransom.

That is what we seek to not normalize. This kind of unlawful and disruptive protest, regardless of the cause behind it, can indeed be the most effective way of “raising awareness,” as the CCLA casually asserts, but it is a dangerous road to go down.

Even if we can agree that the invocation of the act was necessary, no one should be celebrating the curtailment of civil liberties, and we should all seek to find the earliest possible time to end the emergency powers. That is the ongoing job of Parliament and one which we should turn our minds to immediately after confirmation of this motion with the formation of the Parliamentary Review Committee.

It is also important to stress that supporting the use of the Emergencies Act in this instance does not amount to supporting the law in its entirety. In the same way that there was a vigorous public debate at the time of Bill C-77’s introduction, the invocation of this act three decades later should prompt another spirited examination of its provisions.

After all, the world in 2022 is much different from that of 1988. Think of the World Wide Web, social media, GoFundMe and its equivalents, crypto-currency as well as state and non-state foreign interference, all of which are relevant factors in the current case. Personally, I think the definition of “threats to the security of Canada,” which is taken from the CSIS Act, is too broad, but that is the subject of a different debate for a different time.

Honourable senators, I too am weary of COVID restrictions. The good news is that we seem to be coming out of the coronavirus tunnel, which means that the mandates will be progressively relaxed, perhaps to the point where the only public health mandate remaining is the one which you apply to yourself, according to your risk tolerance. But we cannot and should not lift the mandates because a noisy mob says it is time to do so.

In our yearning and haste for normalcy, we must remember that coronaviruses do not share our priorities. We do not know if another variant of COVID-19, perhaps one more virulent than Omicron and Delta, is just around the corner. And if that variant does show up with ferocity, we cannot let our impatience with restrictions get in the way of sound public health directives, including the possibility of further lockdowns.

That is why the truckers’ protest should be seen not just in terms of public order, which was the basis of the invocation of the Emergencies Act, but also public welfare. Now, the government does not appeal to the “public welfare” criteria for its justification of emergency powers, but it is important to not lose sight of the link between public order and public welfare. The loss of one has an adverse effect on the other.

This is not the time to be cavalier about public order, especially when it is so closely connected to an issue of public welfare. Giving in to demands to disregard public health directives may be relatively benign at the tail end of the current pandemic, but it will be disastrous for the next one.

Honourable colleagues, I will vote in favour of this confirmation motion and hope that you will support it as well.