Reaction to the decision by a federal court judge into law suits about the federal government’s use of the Emergencies Act to end the Ottawa truck convoy broke mostly along pre-set ideological lines.
Which is to say that most people missed the point.
Those already opposed to the government’s handling of the pandemic and the demonstration in downtown Ottawa loved the decision. The other bunch didn’t.
Truthfully, the reaction was generally nothing more complicated than that.
Take as a good example of the anti-convoy folks political scientist Emmett Macfarlane. He called the decision “a dubious judgement...” because the judge “ends up not so much reviewing the reasonableness of the decision in light of the circumstances facing the government so much as undertaking a total reappraisal, with the judge substituting his judgment for that of the government’s, with little to no deference to be found.”
Ok.
Let’s be clear on two things. Firstly, the judge did deal with the reasonableness of the government’s decision to invoke the Emergencies Act using the evidence available to him and the law itself. That’s precisely what the cases were about and he did it.
Secondly, he did substitute his own judgment for that of Cabinet, which is precisely what judges are supposed to do in a case like this.
Read Macfarlane’s argument but first read the decision itself, which actually dealt with four different but related applications. Macfarlane has already publicly argued in favour of the government’s decision and relies heavily on the earlier decision of the public inquiry that sided with the government to bolster his argument that there were credible threats of violence, which is justified the decision.
In his decision, Justice Richard Mosley spent considerable time dealing with precisely this issue of justification. He examined in detail the legal basis for issuing a declaration of an emergency. It is tied to the definition of threats in the Canadian Security Intelligence Act. Mosley notes that the government at the time used the CSIS Act to ensure that whenever a future government resorted to this replacement for the old War Measures Act that it would be a damned serious thing.
Mosley also notes that Cabinet in the truck convoy had the benefit of advice from the security service’s director general: not a threat as defined in the Act. This is arguably the most significant point in any of the evidence about the truck convoy and in the debate over whether or not the federal government ought to have invoked the Emergencies Act. It tells us that the federal government had to rely on some other thing than an actual threat defined in the law, which is how Mosley came to declare the federal actions to be illegal.
Macfarlane calls this use of the CSIS Act a “bizarre legislative choice.” This seems less an opinion based on evidence and an appreciation of the whole context of the original drafting of the Emergencies Act than an ad hoc rationalisation that merely copies what Cabinet did in response to the truck convoy. The reasoning of the government in 1985 is well and is a significant part of Mosley's decision.
That, of course, is the substantive issue in all of this. Too many people deliberately ignore that fact in favour of the trite, American ideological split of “right wing” nutjobs versus sensible reasonable people that too many of the Canadian commentariat default to these days. We ought to be more concerned that when faced with a very noisy, troublesome but generally peaceful political action in Ottawa and an incompetent city police force, the Government of Canada and the Government of Ontario could not work together for essentially the same sort of superficial reasons that are at the heart of the disagreement among Canadians about Mosley’s decision.
In 1970 or 1990, Canadians faced far more serious and far more obviously violent insurrections and the governments involved were able to work together to resolve the problems. In one case, it took the use of the War Measures Act. In the other, it didn’t. Even if one tosses in the bridge incident and the crowd at Coutts in the recent one we cannot make of the convoy crowd anything close to Oka, let alone October 1970.
Not surprisingly, Paul Wells gives us a more nuanced and informed *political* appraisal of the court decision. In a nutshell, Wells wrote that:
Before I get to my best attempt to parse Mosley’s decision, I want to say that I’m pretty happy today. Trudeau used the Emergencies Act for the first time in its 34-year history. It’s a far milder act than the War Measures Act it replaced; it was written by a very Progressive Conservative government to keep defendants’ Charter rights intact even when used; and Trudeau’s cabinet took care to ensure it was in force for only a limited time. But I worried that once invoked, it would be that much easier to invoke another time. Justice Mosley did his part today to ensure future governments will think twice. In a country that values Pierre Trudeau’s Charter of Rights and Freedoms, that’s a good day at the office.
Wells also distinguishes between the inquiry that Macfarlane relies on and Mosley’s decision in making that comment that Mosley will help keep the government in check. This is important as well.
Rather than become just another partisan drone in the bun fight, it’s far more useful to understand how the government got into the mess it did. But never lose sight of the fact the government only got into the mess it did with the Emergencies Act for inappropriate or illegitimate reasons. It’s just not good enough for a government to get frustrated and flout the law. One might support such a thing this time but next you might find yourself on the other side of the government’s police action the next time. The bigger picture is way more important than the fleeting moment of today.
As Justice Mosley wrote at paragraph 253, due “to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. The [Governor in Council] cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces. This does not mean that every tool has to be used and tried to determine that the situation exceeded the capacity or authority of the provinces. And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.”
Amen.
Meet the convoy in Calgary with some Timbits and a few double doubles. Agree to discuss and ask to ride along while you discuss. Problem diffused.