Big questions loom in the aftermath of the Emergencies Act to deal with the so-called ‘Freedom Convoy’

OTTAWA — The crisis was one thing. The aftermath is another.

Now that the dust has settled on the winter of chaos surrounding the so-called “Freedom Convoy” and its three-week protest occupation of the streets around Parliament Hill, the federal political scene is grappling with how the government’s actions during that time will be remembered.

That’s because, on Valentine’s Day, Prime Minister Justin Trudeau took the unprecedented step of invoking the Emergencies Act to deal with the entrenched and disruptive demonstrations against his government and overall COVID-19 health restrictions. This created a host of special powers, which existed across Canada for nine days in February, from police authority to declare “unlawful assemblies,” to the ability to force banks to freeze the accounts of protest participants.

Now comes the reckoning, as a public inquiry gears up to study the episode and the government faces legal challenges over whether it properly used the Emergencies Act. And big questions are looming. Did it need the Emergencies Act? What was the extent of the threat Canadians faced? And will the inquiry have the material it needs to get to the bottom of what really happened?

For Abby Deshman, director of the criminal justice program with the Canadian Civil Liberties Association, the stakes couldn’t be higher. The government has opened a door to dealing with domestic protests — however troubling and disruptive they may have been — in a way that has never happened before.

“We need to maintain space for disruptive protests in Canada,” said Deshman, whose organization is seeking a judicial review of the invocation in Federal Court.

“It’s an essential part of a functioning democracy.”

Did the government really need the Emergencies Act?

This question is the umbrella under which the rest of the story is playing out: the political wrangling, the legal challenges and the public inquiry.

the law sets a high threshold for an emergency declaration, explained Michael Nesbitt, a University of Calgary professor and expert in national security law.

In an interview with the Star, Public Safety Minister Marco Mendicino insisted the circumstances threatened the safety of Canadians, including with extremist political violence, while the border blockades from BC to Ontario endangered Canada’s territorial sovereignty.

“There is a mountain of evidence that is plain to see to justify that the government had reasonable grounds to believe that invoking the Emergencies Act was a necessary decision,” Mendicino said.

Nesbitt isn’t convinced the government has proven its case. He asked whether the threat of violence was serious enough for a national emergency declaration, and said it’s not clear that economic impacts are enough to invoke the special powers under the act.

It’s also not clear the situation couldn’t have been dealt with through existing laws, which is another legal criterion to trigger the act, Nesbitt said. He pointed to how protesters were charged with Criminal Code offenses — instead of breaching the restrictions under the Emergencies Act — when police moved to clear the demonstrators in Ottawa.

Mendicino argues the act gave police the power to unequivocally declare the occupation in Ottawa an “unlawful” protest, something that couldn’t have been done without the emergency declaration.

Dane Lloyd, a Conservative MP from Edmonton, believes the government’s justifications for invoking the act fall woefully short.

For example, when ministers talk about the need for the law to compel tow-truck drivers to move protesters’ trucks, Lloyd points to how police were able to get vehicles towed during last weekend’s echo protest in Ottawa.

Some also note how the blockade of the Ambassador Bridge between Windsor and Detroit, as well as arrests linked with a convoy protest in Coutts, Alta., where people were charged with conspiracy to commit murder and a cache of weapons was seized, occurred before the Emergencies Act was invoked.

“Every time we try to peel back the layers of the government’s claims, they’re not holding up,” Lloyd said.

What was the threat, exactly?

Some national security experts raised their eyebrows when the government alluded to a threat of political violence in its rationale for invoking the Emergencies Act. Opposition politicians and outside experts are still calling for more detail on what exactly the government was referring to.

“Canadians deserve to know if there was a terrorist threat,” said Matthew Green, a New Democrat MP from Hamilton.

Mendicino insists the threat was obvious in the rhetoric and behavior of the protest.

Rather than opposition to federal vaccination mandates for truckers, the ostensible reason the convoy was organized, Mendicino argued the “spark” was a memorandum from one of the groups behind the protest. This demand, which the group abandoned partway through the protests, was to replace the elected government with a committee that would drop all COVID-19 vaccination mandates across Canada.

On top of that, Mendicino cited the arrests in Coutts and statements from organizers like Pat King, a far-right personality who is behind bars facing a slew of criminal charges for his role in the protests. These include a video posted online in which King muses demonstrations will end “with bullets.”

“We can’t ever lose sight of how serious and grave this situation was,” said Mendicino.

For Nesbitt, the government needs to explain further why such a threat required the use of the Emergencies Act.

“If the mere presence of violence or the possibility of violence, co-related with a broader protest on the basis of ideas that might be termed extremism, allows for the invocation of the Emergencies Act, then as a lawyer you’re getting worried about slippery slopes,” he said.

Will we get all the answers?

There are two formal tracks of accountability that invoke the act triggered. One is a committee of senators and MPs that is currently studying how and why the emergency powers were used. The other is the public inquiryrequired by law, that will be lead by an Ontario judge who has until February to issue a report on lessons learned around the use of the act and the “appropriateness and effectiveness of the measures taken.”

For Green, the NDP MP, the inquiry alone isn’t enough — this requires oversight from elected representatives.

“This is a social issue that can’t be unpacked by simply handing it over to a judge,” said Green, who is one of three co-chairs of the parliamentary committee. Green said the government should provide all documentation and rationale for its decision to use the act and waive cabinet confidence, a principle that keeps debates around the cabinet table secret.

The Canadian Constitution Foundation is also seeking access to cabinet confidences through a motion in federal court. Sujit Choudhry, the foundation’s lawyer, told the Star by email that it wants lawyers to be able to confidentially review materials kept secret so far under this principle.

“The Federal Court cannot discharge its duty to oversee the decision of cabinet without seeing this material, in an adversarial setting,” Choudhry said.

Mendicino said the inquiry at least will have access to “classified information” — and that could include some material that “overlaps” with cabinet confidence.

“Our intention is to be transparent about the circumstances and the events that led to the invocation of the act,” he said.

For Green, such transparency is vital, not least to push back against the misinformation about government actions and pandemic science that apparently fueled the protests in the first place.

“If we don’t clearly identify the threat and justify the invocation of the Emergencies Act, we’re only going to feed into the conspiracy theorists that will ultimately lead to more types of extreme actions by people fed by disinformation,” he said.

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