Use of emergency powers not justified by the facts in Ottawa

In 1970, Prime Minister Pierre Trudeau used the War Measures Act to deal with bombings, kidnappings and murders which had been committed by the Front de Libération du Québec (FLQ). Trudeau senior faced Marxist separatists using violent means to try to overthrow Quebec's elected government.

The FLQ during the 1960s detonated bombs in mailboxes, cars and the home of Montreal Mayor Jean Drapeau. In February 1969 the FLQ set off a powerful bomb that ripped through the Montreal Stock Exchange, seriously injuring dozens. In October of 1970, the FLQ kidnapped British Trade Commissioner James Cross and Quebec Labour Minister Pierre Laporte. They murdered Mr. Laporte. Prime Minister Pierre Trudeau sent the armed forces into Quebec to aid the police.

From coast to coast, the civil liberties of Canadians were suspended. Police across Canada acquired sweeping powers to arrest without warrant and detain without charge anyone they perceived to have a connection with the FLQ. In the initial weeks, 497 people were arrested. Of those, 435 were released, 62 were charged, and 32 were detained without bail. Although the war measures technically remained in place until April of 1971, army troops were withdrawn from Quebec by December 1970. Numerous FLQ terrorists had been arrested by then. Five received safe passage to Cuba as part of the negotiated release of their hostage James Cross.

Even during the intense drama and tension of the first two months of the October Crisis, most Canadians could freely live, work, socialize, worship and continue living their lives normally in a free country. In the spring of 1971, the Quebec government announced that it would pay up to $30,000 in compensation (over $200,000 today) to roughly 100 people who were unjustly detained.

In the midst of violence, kidnappings and terrorism, one journalist challenged the prime minister about how use of the War Measures Act threatened Canada as a free and democratic society. Dismissing the "weak-kneed" and the "bleeding hearts" who fretted about the soldiers, helmets and guns in the streets, Trudeau senior declared that law and order were more important than civil liberties. Describing the FLQ as a violent and unacceptable emerging "parallel power" that defied the legitimate power of elected representatives, he defended the violation of individual rights and freedom as necessary to protecting democracy.

Fifty-two years later, Prime Minister Justin Trudeau is using the Emergencies Act to crack down on truckers who feed the homeless, shovel snow, pick up garbage, dance in the streets, play street hockey, wave Canadian flags, sing the national anthem, and set up bouncy castles for children. Without violence or other criminal activity, the protesters in Ottawa are using their Charter freedoms of expression, association and peaceful assembly to seek an end to lockdowns and vaccine passports.

The facts on the ground in Ottawa simply do not meet the requirements of Canada's Emergencies Act for Prime Minister Trudeau to declare a national emergency. Federal legislation dictates that the PM needs "an urgent and critical situation of a temporary nature" that "seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it" and that "cannot be effectively dealt with under any other law of Canada." Alternatively, a "national emergency" must "seriously threaten the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada," and in such a way that the situation cannot be dealt with effectively by other federal or provincial laws.

Sworn affidavits filed with the court indicate that the truckers are friendly, courteous, humble, considerate and peaceful. The peaceful nature of the truckers' protest has also been confirmed by hundreds if not thousands of videos taken by people on the ground in Ottawa. No doubt these protesters cause some inconvenience to some Ottawa residents, but to say that they "seriously endanger the lives, health or safety of Canadians" is ludicrous. To suggest that these protesters threaten the "sovereignty, security and territorial integrity of Canada" is even more absurd.

Even if the truckers in Ottawa did pose a serious threat to life, health, safety, sovereignty, security or territorial integrity, the federal government has not shown that this alleged "serious threat" cannot be dealt with effectively by enforcing existing laws. If truckers (or other people) violate municipal parking regulations or provincial traffic laws, they can be ticketed. If protesters (or other people) violate the Criminal Code, they can be charged and arrested. There is no evidence that normal enforcement of federal, provincial and municipal laws is inadequate to deal with peaceful protesters who apparently are not committing any crimes.

The prime minister is either out of touch with reality, or he is testing the old maxim that the big lie works better than the small lie. Contrary to his public assertions on February 14, 2022, there is no "occupation," "siege" or "blockade" in Ottawa.  

Canadians will continue to debate the question of whether Pierre Trudeau was right or wrong to invoke the War Measures Act in 1970, but nobody disputes that Trudeau senior was dealing with violent terrorists who committed serious crimes and sought to overthrow an elected government. In contrast, Trudeau junior has little if any factual basis for his declaration of a national emergency.

Lawyer John Carpay is president of the Justice Centre (jccf.ca), which represents some of the protesting truckers in Ottawa.