The Emergency Act: an impression or two

Winter ca. 1978, Paint Lake, Manitoba

 I’m watching the Inquiry into the invocation of the Emergency Act on CBC Gem, particularly the interviews with the Freedom Convoy organizers. Most of Thursday and Friday, it was Tamara Lich’s turn; she’s spent 49 days in jail on various charges including mischief and counseling mischief.  

Paul S. Rouleau, the Commissioner, has run a tight ship. He’s been flexible when it comes to time allotments for the interveners to question witnesses and has insisted on keeping to the focus of the commission, which is to ascertain whether the government was justified in invoking the Emergency Act to end the demonstrations in Ottawa.  

I don’t need to say this, really, but Canada is seriously divided on the issue of the need for mandates relating to vaccinations, masking, distancing in order to prevent the spread of the COVID-19 virus. The news that a protest convoy was being organized drew far more numbers and far more financial support than was anticipated. The convoy organizers and participants being questioned at the commission hearings tended to paint the demonstrators as peaceful, loving and kind and to deny reporting that drew attention to racism, threats and harassment. That’s completely understandable. Cross examiners for the police and Ottawa citizens tended to justify their viewpoints and actions as you’d expect. 

What became apparent in virtually all the testimony was that the sheer number of people participating in the protest was both a boost and a handicap for the central organizers, particularly Lich and Barber who presented as likeable, reasonable people with strong convictions regarding personal liberty. Maintaining the overall focus on ending the mandates as they related to unvaccinated truckers was practically impossible; that goal was muddied by the numbers of diverse groups, hangers-on and individuals with broader objectives. This apparently became very frustrating for the Freedom Convoy leadership.  

Blaming the mainstream news for distorting reality will always be an issue, but the presence of “F*** Trudeau” signage, the maverick messages of the hangers-on existed in abundance on social media and in common discourse so that Canadians probably assumed that they had a relatively clear picture of the chaos in Ottawa. To explain the events as “just a mob action” would certainly be unjust to those participants who sincerely believed that mandates represented government overreach and that their actions were simply demonstrations of this belief.  

I know too little in detail to opine on the core question: was the Government of Canada justified in implementing the Emergency Act in February of 2022? I expect that a “yes” answer will raise loud protests and possibly street action by the supporters of no-vaccine, no-masking, no-social-distancing mandates. If the answer is “no,” then citizens who approve of health measures directed toward the general population in a pandemic may well be incensed. The problem that makes this so divisive is not as simple as it might seem; whether we cooperated with mandates or not grew out of our perspectives on community cooperation and individual liberty, perspectives that lie peacefully side by side until something like a pandemic brings them into the open.  

Throughout the demonstration, I wished that Trudeau and the relevant ministers would take a day for a round-table discussion of the protestors’ grievances. That they had no obligation to do so is obvious, but according to the organizing leadership of the Freedom Convoy, being heard was their paramount objective. What the hearings suggested to me was that the Convoy leadership failed for several reasons to achieve their objective, and that the Government of Canada failed in exercising a leadership that would have decreased the division rather than boosting it.  

The Commission is expected to take eight weeks before it concludes deliberations. Most Canadians won’t spend that time glued to their TVs to watch and learn. The outcome, however, will be significant in the light of the Freedom Convoy’s and others’ challenges to the future of democracy in Canada.  

As legitimate as protest is in any nation, the rule of the ballot box must remain foundational. There’s good reason to argue that the Freedom Convoy and the groups that attached themselves sought to overturn governance rulings made by an administration placed in Ottawa by a free and peaceful election. Working to replace or re-elect that government is a legitimate democratic activity; protesting the decisions reached by the duly elected government is protected by the Canadian Charter of Rights and Freedoms as well. Occupations and blockades that seek to inconvenience private citizens, governing authorities and businesses in order to force a minority agenda is neither a democratic nor a human right.  

At the same time, a democracy will always be measured against its attention to the well-being of its minorities. Otherwise, it finds itself in danger of becoming a tyranny of the majority. This becomes particularly significant where the prime minister, the entire cabinet can be selected from a party that received only 40% +/- of the popular vote.  

The Emergency Act, if I understand it correctly, requires that its use be impartially examined after the fact. The question of whether its invocation was justified is not without problems of bias and personal and group interest, seems to me. Against what principle or set of rules is it being tested? We’ve heard much conjecture that the “occupation” could have been concluded using existing tools, but for three weeks the OPP, the RCMP, the Ottawa Police Service and the Parliamentary Police Service, the possessors of these “ordinary tools,” did not achieve what Ottawa citizens and administration, the Federal Government, the Provincial Government and Canadian citizens generally knew to be necessary. Does that justify the invoking of powers of the Emergency Act?  

It’s true, many fellow Canadians suffered loss of jobs, income, and security because—for conscience or whatever their personal reasons—they chose not to be vaccinated, or they chose not to mask in places where it had been mandated, or they gathered in numbers that didn’t conform to the guidelines of the day. Although human rights and freedoms were invoked as defenses for the Convoy action, that defense rings hollow without an equivalent appeal for the rights and freedoms of those cooperating and in favour of the mandates.  

Whether or not the restrictions on Canadians were the correct ones for countering the pandemic threat is arguable, and in hindsight, it's clear that how decisions were made by governments on the advice of virologists and immunologists must be reviewed. To say that governments “should have known,” however, is disingenuous … unless one can show that it was conspiracy, not planning, that drove decisions. In law, a conspiracy is an agreement among two or more persons to carry out an unlawful act, with the intent of carrying out the unlawful act. Hence, the Freedom Convoy’s understandable efforts to show that theirs was not an occupation (illegal) but a demonstration (legal).  

The witness of participants supports the view that what began as a planned demonstration went out of control because of the large numbers of participants with differing agendas, turning what began as a demonstration into what was reasonably judged to be an occupation. This was unfortunate for everyone involved (all Canadians, in reality) because it made negotiation, even dialogue between government and protesters impossible. With whom was a government supposed to even begin a dialogue? Can a gathering of thousands even have a single, trustworthy voice with whom one can reasonably carry on a negotiation?  

So, was the Emergencies Act justified? It depends on imagination, in part at least. How would Canada be different if the demonstration/occupation hadn’t been dispersed by force? Would ordinary policing without the power to freeze funding have brought the event to a conclusion that was satisfying to all? Would an offer of a dialogue with organizers have been sufficient incentive for the demonstration/occupation to disperse voluntarily? Would the various area police forces have been able to disperse the demonstration/occupation if there had been more cooperation? We’ll never know.  

There can come a point where dissent and the demonstration of that dissent begins to degenerate into what has the appearance of anarchic behaviour, a refusal to recognize or accede to the authority governing the country. The refusal to obey the “back to work” order of the Ontario government by educational support workers is a case of teetering on the brink of anarchy. Where is that line?  

For me, the most poignant historical example of protest from which we might generalize some principles would be the participation in—or refusal to participate in—armed conflict. Principle One is that you cannot make a person carry or use a weapon on another person, just as you cannot drag a person to a clinic and hold him/her/them down while injecting a vaccine. No democratic government can control citizen behaviour to an unlimited degree. The second principle is that being excused from a national directive doesn’t come without a cost, so that if I refuse to bear arms, it is both logical and legal that I contribute to the welfare of the country in another, balanced way. Conscientious Objectors gave up their freedom to serve in mandated programs of work in the forests, mountains, farms and fields of the country ... as a civic duty. Many who took the conscientious objector option gave up more than some others who enlisted. Those who refused military and alternate service were imprisoned.  

And an overarching principle: the world is and always will be chaotic as opposed to orderly, at least until humans are replaced by robots. What kind of hell would that be? How to be a good person in a chaotic world is, in a nutshell, the Christian Gospel at its best. To love God and God’s creation and to wish for your neighbour peace and plenty amid the chaos is the incontrovertible kernel inside the nut. When a truckers’ convoy and the Canadian government set this kernel aside and make something else their truth—power, personal liberty, the righteousness of governance, the righteousness of protest, money, notoriety, whatever—chaos will always laugh its way to the bank.