Ian Profiri is JURIST’s Chief Correspondent for Canada. He files this dispatch from Calgary.
To say it’s been a busy week in the Canadian legal world is an understatement.
For the first time in its history, the Emergencies Act was signed into law by the Prime Minister, acknowledging that policing efforts to date in the capital, Ottawa, had been virtually unsuccessful, and that the apparent success of protesters in Ottawa had encouraged others to blockade major points and bridges on the Canada-US border.
Justin Trudeau’s action immediately drew comparison to the 1970 enactment of the Emergencies Act’s predecessor, the War Measures Act (WMA), and the prime minister who used it in time peace – Pierre Trudeau, Justin’s father.
Of course, the Emergencies Act is not the WMA; equating the two does a disservice to lawmakers who effectively watered down and constitutionalized the incredibly draconian WMA.
While many politicians (especially south of the border) have attempted to characterize the Emergencies Act as ushering in a new era of martial law and tyranny in the Great White North, the Emergencies Act urgency cannot impose such a tragedy. At most, it allows the federal government to coordinate actions in certain emergency situations when the available tools are no longer sufficient to solve a problem. The law requires parliamentary approval and can only be extended for a limited period.
The official proclamation made on Monday announced “that a public order emergency exists throughout Canada and requires the taking of temporary special measures to deal with the emergency”. The proclamation explicitly identifies blockades as one of the threats.
A regulation was issued the next day prohibiting “participation[ion] in a public assembly which may reasonably be expected to lead to a breach of the peace”, as well as a general ban on foreign nationals entering Canada to participate and a complete ban on minors from participating at the festivities.
An Emergency Economic Measures Order was simultaneously issued directing financial institutions across the country to comply with the requirement to disclose any financial information relating to protest participants and to prevent their ability to access accounts. or perform transactions.
This is all new, however, and the limits of what Parliament can and cannot do through the Emergencies Act have not been tested in court.
The impact of protesters at the Coutts blockade in Alberta, however, was immediate. The protesters collectively and quickly announced that they would leave the area after the announcement of the invocation of the Emergency Measures Act. What happened the next morning, however, became another flashpoint for the ongoing debate about policing in Canada.
On Tuesday morning, as promised, protesters began packing their trucks and trailers for the exodus away from the highly controversial blockade. They left, but not before kiss and shake hands with RCMP officers supposed to monitor the blockade. The demonstrators even gave an offbeat rendition of the national anthem to greet them. The police enjoyed the show; activists and critics were not happy.
It’s not like people want to see bloodshed – the fact that all sides walked away without violence, especially after it became clear that there were factions within Coutts blockers who were looking to kill members of the RCMP, was welcome – but the fact that the RCMP treated these protesters so radically different from other protesters in the past, it was hard for some to watch.
The comparisons were obvious and widely recognized. Images and video of Fairy Stream, where in 2021 at least 800 environmentalists trying to stop the clear-cutting of old-growth forests in British Columbia were pepper sprayed, beaten, then arrested, shared en masse. So were pictures the recent violent displacement of a homeless encampment in Toronto and the aggressive treatment of Indigenous land defenders.
More recently, a counter-protest group that broke out in Edmonton in response to a convoy was quickly transported by Edmonton Police Services. Edmonton police cited Alberta’s Critical Infrastructure Defense Act as the reason for their withdrawal, regardless that the convoy protesters themselves were presumably committing the same offense, clearly visible just behind the officers separating them from counters -protesters.
Asked about the officers’ response, Edmonton Police Chief Dale McFee said officers “have to be very nimble in handling what is considered the highest priority based on our deployment that day.”
Giving credit where credit is due, McFee also announced that EPS officers who vocally supported the convoys have been placed on administrative leave pending an investigation. At the very least, EPS’s overall commitment to an image of legislative neutrality remains intact, even if their policing methods remain a problem for their optics.
Alberta Premier Jason Kenny was not absent during this period. After capitulating to protesters and pushing for the lifting of restrictions linked to the Covid-19 pandemic, in particular against the advice and concerns of the medical community, Kenny on Wednesday signed a letter alongside 15 US governors encouraging US President Joe Biden and Prime Minister Trudeau to drop vaccine requirements for truckers, calling the mandate “bad public health theatre”. He later said that anyone angry with the government should direct their anger at the opposition New Democratic Party and the Alberta Federation of Labour, Alberta’s largest public union, for “attempting to force 6-year-olds to wear masks indefinitely.” This was all problematic given that some of the Coutts protesters had a cache of weapons and were apparently ready to gun down those who opposed them.
Yet tensions have eased considerably since the invocation of the Emergency Measures Act. Many people across Canada are happy and relieved that the border is now open and, despite what some premiers may say, people are still taking advice from doctors – real advice, not politically expedient advice – in hiding and generally looking for one another.
There is another “Freedom Convoy” scheduled for Saturday in Alberta’s capital, but it will likely be a relatively uneventful affair. Still, it remains to be seen if any of the provisions of the Emergencies Act will come into play in Alberta and if the calm continues.