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GOLDSTEIN: The legal case against Trudeau’s use of the Emergencies Act

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The Canadian Civil Liberties Association on Friday applied for a judicial review in federal court seeking an order to quash Prime Minister Justin Trudeau’s decision to invoke the Emergencies Act on Feb. 14.

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The CCLA presents a logical and balanced argument, free of political rhetoric, about why it believes that decision was unconstitutional.

The 26-page document begins by pointing out that since the act was passed in 1988, no federal government until now has felt the need to use it, despite the fact:

“There have been terrorist attacks, economic collapses, and a pandemic.

“All of these situations were dealt with using existing laws and normal democratic processes, or, when absolutely necessary, municipal or provincial emergency powers.

“There have also been national protest movements that occupied public spaces and city streets for months and blockaded critical infrastructure such as railways — essential democratic activity that frequently supports marginalized communities’ struggles for equality and justice.

“These too have been responded to within the context of existing laws.”

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The CCLA contends Trudeau’s argument current protests over vaccine mandates and other government-imposed restrictions during the pandemic are so different from previous crises that it justified his decision, fails legally because:

“The Emergencies Act … contains stringent preconditions for its invocation.

“In recognition of the extreme nature of the powers that it grants and the risk of overreach and misuse, the legislative drafters included very high legal thresholds that had to be met before the … Act could be used.”

“Those thresholds have not been met. There is no nationwide public order emergency within the meaning of the Act.”

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Contrary to Trudeau’s continuing and incendiary portrayal of all protesters as racists, misogynists and white supremacists, the CCLA accurately notes the obvious point that “many individuals involved in these protests have been entirely law-abiding and peaceful.”

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That said, the CCLA in no way minimizes the actions of others during the protests which it describes as ranging from “disruptive” to “dangerous, harmful and unacceptable.”

It notes many protesters “have engaged in forms of non-violent disruptive action that have had a significant and at times harmful impact on local residents (particularly in Ottawa) including blockading roadways, driving vehicles slowly thereby disrupting traffic; chanting, marching, sitting-in on city streets; erecting structures in public spaces; and creating noise by honking horns.”

The CCLA application also cites disturbing reports of “individual protesters or small groups of people engaging in violent and discriminatory behaviour … reports that some protesters engaged in physical and verbal harassment, as well as intimidation on the basis of race and property destruction on the basis of homophobic bias.”

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It says these have been “deeply disturbing to residents of Ottawa and people across the country, and in particular created fear among racialized and marginalized communities.”

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The CCLA also cites the closing of the Windsor-Detroit Ambassador Bridge and other border crossings because of protests, and the RCMP discovering in Coutts, Alberta “a cache of guns, ammunition and body armour which led to the immediate arrest of 13 individuals.”

The CCLA’s argument is not that there can be no government or police response to address these issues.

It’s that it was not necessary to invoke the Emergencies Act to address them, as demonstrated by the fact that two of the most serious incidents — the blockading of the Ambassador Bridge, which is a vital trade link between Canada and the U.S., and the RCMP arrests in Alberta — were accomplished without the need to invoke the federal legislation.

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As for the lack of a response by the city of Ottawa and its police force to the demonstrators in the nation’s capital that dragged on for three weeks, the CCLA notes that “while the federal government and many Canadians may disagree with the nature and the extent of the various municipal and provincial responses, this disagreement is no justification for resorting to the Emergencies Act to take control of provincial powers and blur the lines that federalism draws.”

In my view, that’s a key issue — that Trudeau invoked the Emergencies Act meant to deal with national emergencies because of a failure of Ottawa’s City Council and its police service to competently deal with the protesters in the nation’s capital.

This as opposed to the rural community of Caledonia, Ont. — near Hamilton — where residents have been under often violent siege on and off for 16 years, arising from a disputed Indigenous land claim that Liberal and Conservative governments have failed to address, let alone declare the Emergencies Act.

[email protected]

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Comments

Postmedia is committed to maintaining a lively but civil forum for discussion and encourage all readers to share their views on our articles. Comments may take up to an hour for moderation before appearing on the site. We ask you to keep your comments relevant and respectful. We have enabled email notifications—you will now receive an email if you receive a reply to your comment, there is an update to a comment thread you follow or if a user you follow comments. Visit our Community Guidelines for more information and details on how to adjust your email settings.


Article content

The Canadian Civil Liberties Association on Friday applied for a judicial review in federal court seeking an order to quash Prime Minister Justin Trudeau’s decision to invoke the Emergencies Act on Feb. 14.

Advertisement

Article content

The CCLA presents a logical and balanced argument, free of political rhetoric, about why it believes that decision was unconstitutional.

The 26-page document begins by pointing out that since the act was passed in 1988, no federal government until now has felt the need to use it, despite the fact:

“There have been terrorist attacks, economic collapses, and a pandemic.

“All of these situations were dealt with using existing laws and normal democratic processes, or, when absolutely necessary, municipal or provincial emergency powers.

“There have also been national protest movements that occupied public spaces and city streets for months and blockaded critical infrastructure such as railways — essential democratic activity that frequently supports marginalized communities’ struggles for equality and justice.

“These too have been responded to within the context of existing laws.”

Advertisement

Article content

The CCLA contends Trudeau’s argument current protests over vaccine mandates and other government-imposed restrictions during the pandemic are so different from previous crises that it justified his decision, fails legally because:

“The Emergencies Act … contains stringent preconditions for its invocation.

“In recognition of the extreme nature of the powers that it grants and the risk of overreach and misuse, the legislative drafters included very high legal thresholds that had to be met before the … Act could be used.”

“Those thresholds have not been met. There is no nationwide public order emergency within the meaning of the Act.”

We apologize, but this video has failed to load.

Contrary to Trudeau’s continuing and incendiary portrayal of all protesters as racists, misogynists and white supremacists, the CCLA accurately notes the obvious point that “many individuals involved in these protests have been entirely law-abiding and peaceful.”

Advertisement

Article content

That said, the CCLA in no way minimizes the actions of others during the protests which it describes as ranging from “disruptive” to “dangerous, harmful and unacceptable.”

It notes many protesters “have engaged in forms of non-violent disruptive action that have had a significant and at times harmful impact on local residents (particularly in Ottawa) including blockading roadways, driving vehicles slowly thereby disrupting traffic; chanting, marching, sitting-in on city streets; erecting structures in public spaces; and creating noise by honking horns.”

The CCLA application also cites disturbing reports of “individual protesters or small groups of people engaging in violent and discriminatory behaviour … reports that some protesters engaged in physical and verbal harassment, as well as intimidation on the basis of race and property destruction on the basis of homophobic bias.”

Advertisement

Article content

It says these have been “deeply disturbing to residents of Ottawa and people across the country, and in particular created fear among racialized and marginalized communities.”

We apologize, but this video has failed to load.

The CCLA also cites the closing of the Windsor-Detroit Ambassador Bridge and other border crossings because of protests, and the RCMP discovering in Coutts, Alberta “a cache of guns, ammunition and body armour which led to the immediate arrest of 13 individuals.”

The CCLA’s argument is not that there can be no government or police response to address these issues.

It’s that it was not necessary to invoke the Emergencies Act to address them, as demonstrated by the fact that two of the most serious incidents — the blockading of the Ambassador Bridge, which is a vital trade link between Canada and the U.S., and the RCMP arrests in Alberta — were accomplished without the need to invoke the federal legislation.

Advertisement

Article content

As for the lack of a response by the city of Ottawa and its police force to the demonstrators in the nation’s capital that dragged on for three weeks, the CCLA notes that “while the federal government and many Canadians may disagree with the nature and the extent of the various municipal and provincial responses, this disagreement is no justification for resorting to the Emergencies Act to take control of provincial powers and blur the lines that federalism draws.”

In my view, that’s a key issue — that Trudeau invoked the Emergencies Act meant to deal with national emergencies because of a failure of Ottawa’s City Council and its police service to competently deal with the protesters in the nation’s capital.

This as opposed to the rural community of Caledonia, Ont. — near Hamilton — where residents have been under often violent siege on and off for 16 years, arising from a disputed Indigenous land claim that Liberal and Conservative governments have failed to address, let alone declare the Emergencies Act.

[email protected]

Advertisement

Comments

Postmedia is committed to maintaining a lively but civil forum for discussion and encourage all readers to share their views on our articles. Comments may take up to an hour for moderation before appearing on the site. We ask you to keep your comments relevant and respectful. We have enabled email notifications—you will now receive an email if you receive a reply to your comment, there is an update to a comment thread you follow or if a user you follow comments. Visit our Community Guidelines for more information and details on how to adjust your email settings.

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