Whose Fault? Why Invoking the Federal Emergencies Act was Necessary

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Let’s be clear. Originally there were a tiny group of protesters to deal with, estimated at less than 200. As former Ottawa Police Chief Charles Bordeleau noted in a CBC interview on February 18, in the past the Ottawa Police force had handled some thirty thousand peaceful Tamil protesters without incident.

So what was the difference here? Simply put, there was a profound failure on the part of the local police force to handle the situation promptly and efficiently. Despite knowing well in advance of the convoy’s plans, the police appeared to be taken by surprise and numerous mistakes were made. First, there was no designated venue laid out by police in advance that established where the protest would take place. Second, more and more protesters were allowed to arrive and stay, so that the second weekend saw more than two thousand individuals in place, some mere yards from the Senate, House of Commons, Prime Minister’s Office, Supreme Court and Bank of Canada.

Third, and most significant, no previous “protest” in the nation’s capital or other major city in Canada had ever involved some 400 huge transport trucks and trailers, all of which were – unbelievably — allowed without question to drive into the heart of Ottawa and park right in front of all those highly sensitive buildings. As viewers watching this drama unfold on television could clearly see on a daily basis, those trucks had a stranglehold on the circulation of traffic, caused physical and mental health problems for residents with their incessant horn blowing, and were allowed to refuel constantly without police intervention. 

Last but hardly least, many of the “protesters” unbelievably had brought along their families, including an estimated 100 children. This in turn led to the protesters setting up a bouncy castle, hot tub, barbecues and a huge fire pit to roast a whole suckling pig in the middle of an intersecting street, again with no police intervention. Apparently many of those occupying the heart of the nation’s capital were under the false impression that they were participating in a new version of Woodstock.  

But this was no peaceful protest. It was illegal in many ways from the get go, and it soon became an occupation, not a protest of any kind. Nearby restaurants and businesses, including the massive Rideau Centre mall, as well as the main public library, city hall and National Arts Centre were forced to close for nearly four weeks. National monuments, including the National War Memorial, were desecrated. Local residents, including staff at a local food bank, were accosted and threatened as they attempted to go about their daily lives.

The situation took on kafka-esque proportions as the protesters rejected all arguments about the illegality of their actions, or the futility of their protest. Allegedly motivated by the desire to eliminate all COVID-19 regulations in the name of “freedom”, they failed to recognize that they were infringing on the freedom of their fellow citizens. Nor did they acknowledge the reality that they were in the wrong place, since almost all of the restrictions they oppose fall within provincial jurisdiction.   

And interspersed among the majority of protest sheep were wolves, hard and fast alt-right activists espousing anti-Semitic, racist and homophobic views and promoting absurd conspiracy theories on social media.[i] Moreover their real agenda was clearly one of more significance, with plans spelled out in a bizarre Memorandum of Understanding to overthrow a democratically elected government and replace it with a coalition of protesters, senators and the Governor General. [ii] As one commentator noted:

The degree of ignorance shown by the leaders of the demonstration of the legitimate authority of the government, its makeup, the Constitution, federal-provincial jurisdiction, is, as one commentator put it, “breathtaking.” Someone jokingly said they wanted to invoke the “Not understanding Clause”…I am sure many of the people who came to Ottawa and left the next day came to peacefully protest and did not have overthrowing the government in mind. But their leaders did, and still do. And that makes the events of the weekend even more deplorable.[iii]

And, as evidence found by police at border protests in Alberta and Saskatchewan demonstrated, firearms and body armour, smoke bombs and other weapons were evidently part of the hardline protesters’ arsenal.

Yet they too were met by an Ottawa Police Force that took little or no action for far too long, in the misguided belief they were averting violence by taking such a compromised position. They even helped the badly misnamed Freedom Convoy establish a base of operation away from the downtown core, in a parking area near critical infrastructure such as the train station. There, still more trucks were allowed to settle in, a laundry facility and portable showers were established, along with what appeared to be a control centre.

Needless to say, residents of Ottawa took umbrage. For many, it was clear that the police had no plan. Their Chief of Police, Peter Sloly, first indicated things were going according to a plan that was designed to minimize or avoid violence. As the situation deteriorated, he then started to present excuses as to why more could not be done. He insisted the force did not have the tools necessary. Incredibly, he raised the Charter of Rights as something that was “tying his hands”, despite the fact the Charter had nothing to do with this farce, and in any event Section 1 specifically guarantees rights will be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” With a police force of some 1,500, Sloly also insisted he would need an additional 1,800 individuals to handle the problem. (Sadly this may have been true at that point, given the extent to which the whole thing had been allowed to explode due to his lack of action.)

It soon became apparent that Ottawa residents had lost all confidence in their police force, which many described as grossly incompetent. Some filed a class action suit against the protesters to defray the costs of their own lost income and mental stress. (Sloly eventually resigned on February 16, amid widespread rumours of internal strife in the force.)[iv]

Meanwhile someone who should have been another key player, Ontario premier Doug Ford, was conspicuously missing in action. From the start of the occupation in Ottawa on January 28, the premier was invisible for two weeks. He emerged only on February 11 to invoke the provincial Emergency Act, which he declared was motivated in response to the blockade of the Ambassador Bridge and made no mention of Ottawa. Indeed, Ford had refused three separate invitations by the federal government to attend tri-level consultations, including one held February 10, to discuss the various protests and blockades taking place across the country including Ottawa, making Ontario the only province absent from the meetings.[v]  (It later transpired that Ford had spent the previous weekend enjoying snowmobile trails at his cottage in the Muskokas.[vi])

A spokesperson for Ford’s Solicitor General issued a statement reiterating the provincial government’s position that it is not the appropriate role of politicians to direct the police, something which no one disputed. The release then rejected the Ottawa Police Force request for additional assistance from the OPP and other local police forces, insisting the city already had sufficient capacity[vii]. While this may have been true in the beginning, it was clear to everyone but the Attorney General that this was no longer the case. It was certainly clear to the federal government, which had been expecting both the city and the provincial governments to handle what should have been a manageable situation entirely within their jurisdiction. 

While all of this was taking place, many of the Official Opposition federal Conservative Party’s MPs were expressing firm support for the so-called trucker’s convoy. Early efforts to demonstrate that support included the appearance of three Saskatchewan MPs, including former leader Andrew Scheer, having their photos taken with the protesters. Long after representatives of the other parties in parliament had denounced the occupation, Conservative MPs were continuing to refer to it as a peaceful protest. That this was the stated position of the party that has traditionally been viewed as the party of “law and order” not surprisingly confounded observers, particularly as it followed on the heels of the Ontario Conservative government’s inaction.

After the firing of Conservative Party leader Erin O’Toole by his own caucus on February 2, in part because of his perceived lukewarm support of the truckers, Manitoba MP Candice Bergen was selected interim leader. She promptly took the opportunity in Question Period to demand that the prime minister offer the protesters “an olive branch.” Soon after, a leaked memo from Bergen to senior Conservatives was reported by the media, in which she stated “I don’t think we should be asking them to go home…I understand the mood may shift soon. So we need to turn this into the (prime minister’s) problem.”[viii]

As the situation deteriorated still further, leadership hopeful and Ottawa Conservative MP Pierre Poilievre took the extraordinary step of indicating complete support of what he continued to call the truckers’ protest, even as other Ottawa MPs were demanding federal action in the face of city and provincial incompetence and inaction. Having declared he was entering the federal Conservative Party leadership race, in which he was considered the frontrunner, Poilievre doubled down on his support. He took to social media in repeated tweets supporting the protesters. “I’m proud of the truckers and I stand with them” he declared in a February 10 podcast. This was all the more astonishing given Poilievre’s hardline position barely two years earlier, during the country-wide blockades of train travel by indigenous protesters. In that instance, the Conservative MP declared the protesters were “taking away the freedom of other people to move their goods and themselves.”[ix]

Internationally, Canada’s reputation as a peaceable kingdom was also taking a hit. Widespread media coverage of the Ottawa developments in Europe and the United States proved not only embarrassing but potentially dangerous. In particular,  increasing financial and tactical support was flooding in to the convoy organizers from Trump supporters and other American alt right groups. Equally important, Canadian public opinion polls revealed a growing loss of credibility of government institutions and the rule of law. Many Canadians described themselves as “mortified” by the various incidents and the perceived failure of all levels of government to contain them. [x]

As a result, in the face of incompetence on the part of Ottawa police and the inaction of the Ontario government, as well as the outright support of the protest by the federal Conservative Party, and in light of three weeks of increased anarchy in the nation’s capital, it is hardly surprising that the Trudeau government concluded it would need to intervene. In his statement declaring the adoption of the Emergencies Act on February 14, the prime minister repeatedly stressed his reluctance to invoke this measure, which he viewed as a last resort. He also stressed that the act did not impact Charter rights, would be applied in a targeted fashion to specific geographic regions or incidents, would be in force for a limited time period, and would not apply to any provinces unless federal aid was requested by them.[xi] Interestingly, it was premier Doug Ford who immediately declared support for the federal move and indicated he was open to its use in the case of Ottawa.

Trudeau and Attorney General David Lametti also noted that the act was providing important additional support to police services, but was in no way directing them in their work. That support included the authority to compel tow truck drivers to perform removals of the huge trucks, something these companies had refused to do up to this point in Ottawa out of fear of reprisals or support for the protesters. The act also required banks to report financial transactions involving protesters to FINTRAC, the federal agency mandated to track terrorist and illegal funds, and to freeze the accounts of crowdsourced funding. In addition it declared the presence of minors in the protest zone to be illegal, allowing the Children’s Aid Society and police officers to intervene if necessary to ensure their safety.  It also cleared the way for the sharing of resources between federal and provincial forces, something that the Ottawa police immediately utilized to set up some 100 checkpoints in the downtown core in an effort to cordon off the main protest area and prevent additional protesters from arriving. Similarly, Canada Border Services agents were authorized to halt the arrival into Canada from the United States of any potential protest supporters, something which numerous reports had revealed to be a significant source of both financing and organizational personnel. [xii] Finally, the Act allowed for ongoing surveillance and provided for the use of joint police operations in the event of future blockades, at the same time that it defined as illegal the organization of any future protests near key infrastructure or buildings. 

Within hours, a cohesive multi-force policing operation began to take place in Ottawa, and within 72 hours the situation had been brought under control. In parliament, debate on the use of the Emergencies Act continues, with the NDP supporting the federal government and the Conservatives opposing it. Public opinion, however, is massively on the side of the federal government’s decision according to recent polls,[xiii] and large numbers of both legal and constitutional experts have also indicated their support. Prominent among them were well-known national security expert Wesley Wark and University of Ottawa scholars Michael Kempa and Erroll Mendes, who declared:

“If you look at what’s happened not just in Ottawa but at the Ambassador Bridge and Coutts, Alta. and in B.C., essentially we have a national emergency,” he told CBC News Network.You have this small group basically asking the government to do whatever they want. That’s the national security problem.”[xiv]

In short, while the use of the Emergency Measures Act would not have been necessary if others had done their job, it is clear that the federal government’s decision to invoke the act is not only justified, but essential at this point, in order to restore public faith in government institutions, the rule of law and the underlying Canadian constitutional principle of peace, order and good government.

[i] https://www.ctvnews.ca/canada/who-is-who-a-guide-to-the-major-players-in-the-trucker-convoy-protest-1.5776441

[ii] https://www.hilltimes.com/2022/02/02/the-mou-says-everything-you-need-to-know-about-the-truckers-protest/341596

[iii] https://www.hilltimes.com/2022/02/02/the-mou-says-everything-you-need-to-know-about-the-truckers-protest/341596

[iv] https://www.cbc.ca/news/canada/ottawa/peter-sloly-ottawa-police-service-public-trust-1.6353265

[v] https://www.cbc.ca/news/politics/ford-trilateral-ottawa-border-protest-1.6346687 

[vi] https://toronto.ctvnews.ca/ontario-premier-doug-ford-was-in-muskoka-area-as-ottawa-dealt-with-escalating-convoy-protests-1.5777605

[vii] https://www.ctvnews.ca/canada/who-is-who-a-guide-to-the-major-players-in-the-trucker-convoy-protest-1.5776441

[viii] https://www.thestar.com/politics/2022/02/03/unifying-a-divided-caucus-is-job-no-1-for-new-interim-tory-leader-candice-bergen.html

[ix] R. Urbach. “Will Poilievre’s Convoy Support Hurt Him?” Globe and Mail. February 19, 2022.

[x] https://torontosun.com/opinion/columnists/lilley-polls-show-canadians-losing-faith-in-country

[xi] For full details of the Act, see https://www.cbc.ca/news/politics/trudeau-premiers-cabinet-1.6350734

[xii] https://www.nytimes.com/2022/02/17/opinion/ottawa-protest-convoy.html   and  https://www.theglobeandmail.com/world/article-us-funds-for-canadian-convoy-protests-may-sway-american-politics-too/

[xiii] https://nationalpost.com/news/politics/two-thirds-of-canadians-support-use-of-emergencies-act-and-want-freedom-convoy-cleared-out-poll

[xiv] https://www.cnn.com/2022/02/15/politics/fact-check-canadian-protests-polls-trudeau-support-oppose-truckers-mandates/index.html    and     https://www.cbc.ca/news/politics/trudeau-premiers-cabinet-1.6350734