Is it time for the Emergencies Act?

by Wesley Wark. Originally published on Policy Options
February 11, 2022

In 1919, the Irish poet William Butler Yeats penned a dark and alarming vision where “things fall apart, the centre cannot hold.” He laid bare a world in which “the best lack all conviction while the worst are full of passionate intensity.” The poem ended with a memorable image and question mark: “and what rough beast, its hour come round at last, slouches towards Bethlehem to be born?”

The poem, The Second Coming, with its Christian apocryphal imagery, was written in the aftermath of the First World War and in the midst of the terrible Spanish flu pandemic. Yeats’ wife barely survived and was convalescing while he wrote it. The strength of the poem outlasted its moment of creation and served as warning again when the world descended into the fascist aggression that sparked the Second World War.

In the past two weeks, Canada has witnessed its own dark moment of political convulsion, also fueled by a pandemic. Things seem to be falling apart; but to echo Yeats, do they portend the failure of the “centre?”

In any crisis, the strength of the centre and its binding power is found in both society and its political institutions. Canadian society looks well set to hold. Opinion polls show that Canadians roundly reject the current protest by truckers and others, and their tactics. Vaccine take-up is high (though it could always be higher) and Canadians have shown trust in public health authorities, especially when their message is clearly and consistently communicated.

For its part, the protest embraces its outsider status. Its organizers show no strategic sense or interest in trying to win public approval. If one looks for extremism in the movement, it is precisely in its lack of interest in winning hearts and minds. These are dangerous people, because they are singularly convinced of their righteousness, fueled by Yeats’ “passionate intensity.”

The grip of our political institutions on the crisis looks less certain. Current legal powers and resources available to our municipal and provincial governments, even when aided by declarations of emergencies, will not be adequate to the task. In the final analysis only the federal government can deal with what has become a public security crisis of national and international dimensions. But this recognition has not yet dawned.

The Ottawa municipal authorities and police – inexplicably taken by surprise by the so-called “Freedom Convoy” – have come under sharp criticism for early policing and intelligence failures, and for their slow response to the siege of downtown Ottawa. The Ottawa mayor, Jim Watson, has only his wit as a weapon against the trucker occupation, recently describing the news conferences organized by the protest leaders as something out of a Monty Python sketch,. The Ottawa police chief, Peter Sloly, has taken a different tack; early in the crisis he publicly waved a white flag of helplessness and called for assistance from the provincial and federal government. Lately, Chief Sloly has taken to building up the protest as an extremely sophisticated opponent—no doubt to its delight. No wonder the Chief needs help from a PR firm.

So-called “Freedom Convoy” is a symptom of a deeply unequal society

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The provincial Progressive Conservative government of Doug Ford kept a low profile for the first two weeks of the protest, limiting itself to saying the right things by calling the Ottawa siege an “occupation” and urging its end.  The province lent some Ontario Provincial Police officers to help bolster the Ottawa police ranks. It has launched an injunction against foreign fund raising for the protest, but that is like squeezing jelly in the age of global digital-money campaigns and bitcoin. It has only been stung into recent and greater action by the pocket-book impacts of the blockade of the vital Ambassador Bridge trade link with the United States. Long-suffering Ottawa residents are unlikely to forget this.

The minority federal government has been largely missing in action, except for rhetorical flourishes and efforts to convene trilateral talks. Its political attention has been focused on fending off criticism from opposition parties in Parliament. The governing Liberals have been stung by allegations from within its own ranks of the “politicization” of the pandemic response, made by a once-rising star, Quebec MP Joël Lightbound. As inopportune and senseless as it was, the Lightbound foray has thrown additional confusion and paralysis into the ranks of government at a critical moment.

Canada’s international reputation for good governance and ally-worthiness has taken a big hit. Pressure from the U.S. government to resolve the crisis will only mount.

The buck stops at the prime minister’s desk. The federal government must now assume the lead responsibility to bring the protests to a speedy end.

The federal government possesses unique tools to manage the crisis. Yet, the government waited two weeks to convene the cabinet’s “incident response group” to manage the emergency at the most senior levels. It has not mobilized the RCMP as a take-charge federal police force. The prime minister has shied away from calling on the military to aid the civil power, though the military’s role in such operations has otherwise been on full display in recent years in its many contributions to the domestic COVID-19 response, and its efforts to bring aid and support to Canadian communities hit hard by climate change impacts – whether floods, extreme weather or out-of-control forest fires.

Tools it might have, but these are useless without jurisdictional powers. The COVID-19 pandemic has driven home to all Canadians the challenge of finding a uniform national response to a public health crisis, and the significant limits of federal power. If Yeats’ “rough beast” has truly been let loose by those demanding the end to all public health measures, can the federal government actually take charge? Quite apart from willingness and leadership resolve, the answer lies in unused legal powers contained in something called the Emergencies Act.

The act has a troubled history and has been kept out of sight in recent times as a kind of embarrassment. Its predecessor, the War Measures Act, was deployed during the First and Second World Wars and, most controversially. during the 1970 October Crisis in Quebec. Replacement legislation, the Emergencies Act, was passed in 1988, but has never been invoked. Even a hint that its use might be considered during the early months of the COVID-19 pandemic was quashed by near-unanimous provincial dissent. This last-resort legislation has become “no-resort” legislation. Will that change in the face of this protest?

The first thing to note is that the Emergencies Act contains provisions for dealing with a “public order emergency.” It would give the government extraordinary, but strictly time-limited (30 days) powers that would be contingent on parliamentary approval and subject to the rights protections of the Charter of Rights and Freedoms. Powers could include prohibition of public assembly in a specified area, the securing of protected places, authorization to render essential services, (e.g., towing away the trucks being used in the protests), fines and imprisonment. Such powers clearly apply to the circumstances of the current protest.

There is, however, a catch or two. The act is limited to “an emergency that arises from threats to the security of Canada and is so serious as to be a national emergency.” The act’s definition of a national emergency presents a high bar, one that “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature to exceed the capacity or authority of a province to deal with.” The protest wasn’t seen as meeting these criteria at its outset; the more it metastasizes, the more clear the fit becomes. A provincial sign on by the Ontario government would seal things.

More challenging is the act’s definition of a threat to the security of Canada, where it relies on the Canadian Security Intelligence Service Act, legislation passed 37 years ago. The CSIS act defines threats to the security of Canada as limited to four categories: espionage or sabotage (for purposes of the current protest — nope); foreign-influenced activities (not really, given the clause would be applied to state-sponsored interference); threats or use of acts of serious violence “for the purpose of achieving a political, religious or ideological objective” (not yet); covert and unlawful activities that would undermine or lead to the destruction of the constitutionally established system of government in Canada (a big stretch).

What’s wrong here? The government is sitting on unusable legislation that is not fit for this purpose and has never been modernized to meet the changing needs of societal protection. There is nothing here to help the governance centre hold, while it provides a woeful excuse for inaction and buck-passing.

In place of an unusable Emergencies Act, what is needed is rapid passage by Parliament of amended legislation that would add to the definition of threats to the security of Canada a new category: the deliberate and reckless interference with listed critical infrastructure, to include offices of government and the courts, health services and border crossings. After that should come enforcement action.

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When the protest is dismantled and cleared away, a federal commission of inquiry must be called to learn much-needed lessons about how we understand threats to national security and embed these in our laws, enforcement practices and public understanding.

This article first appeared on Policy Options and is republished here under a Creative Commons license.