Creative lawyering

Vincent J. Curtis

24 Nov 22

The Emergencies Act hearings revealed that under the advice of Attorney-General David Lametti, the Federal cabinet, the Governor-in-Council, could and did disregard the plain English meaning of Section 16 of the Emergency Measures Act (EA).  The wording in the EA specifically ties the meaning of a “Public Order Emergency” to Section 2 of the CSIS Act.

The relevant wording is as follows: 2 (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.

The serious violence provision, when adopted, was guided by the FLQ crisis of 1970.  After a years’ long campaign of placing bombs in mail boxes, cells of the FLQ kidnapped and murdered Quebec Deputy Premier Pierre LaPorte, and kidnapped British trade commissioner James Cross.  This is the image to keep in mind when associating “serious violence” with invoking the War Measures Act, or its successor, the EA.

Before the commission, Lametti argued that given the different purposes of the CSIS Act and the EA, each with different goals, the meaning of 2(c) in the EA is different - from the context in which it has been incorporated into the two acts.  The decision making body is different, for one thing.

Lametti was arguing that Cabinet hands cannot be bound by what CSIS thinks, but its hands can be unbound by what a lawyer thinks.

Let’s take it as read that the government is free to interpret the meaning of 2 (c) independently of CSIS.  What CSIS thinks is irrelevant to the conclusion the government reaches on the basis of the same set of facts.  This would explain the government’s emphasis on violence and that the protests mysteriously became “illegal.”

The Freedom Convoy was non-violent civil disobedience intended to convince the Federal government to lift its recently imposed vaccine mandate on truckers who crossed the U.S. border.  And it was non-violent.  This fact necessitates a creative interpretation of what amounts to violence in order to reach the standard of 2 (c).

Hence, the blockade at the Ambassador Bridge was an act of violence.  Horn-honking was an act of violence.  Unverified claims of fear by Ottawa residents and of acts of intimidation and harassment were all alleged to be acts of violence by the protesters.  “My own staff were harassed,” claimed Lametti under oath.  The reports of guns being in the cabs of the trucks in Ottawa played into the leitmotif of violence and threats of violence.  The fear of a January 6^th style of an invasion of the parliament buildings was widely expressed by individuals hostile to the Convoy’s aims.  The Prime Minster received a death threat!

Given the intent by the government to spread the idea of violence and threats of violence, the friendly reception that Conservative politicians such as Pierre Poilievre and Candice Bergen received while walking amid the protesters undercut the portrayal of violence. These people were subjected to intense and personal criticism by government members.  They were giving aid and comfort to white supremacists, racists, fascists, misogynists, people of “unacceptable views,” disbelievers in science, and takers-up of space, allegedly.  The violent rhetoric all seemed to be coming from the government side, not the Convoy or its friends.

But allegations of violence was not enough.  The economic consequences of the blockade were thrown onto the scale, and we’ve heard ministerial testimony relating what others said to them, that Canada was being made a laughing stock, that the U.S. was getting mad at us, etc.  All unverified, and all irrelevant to the concept of serious violence against persons or property.

Another mystery yet to be resolved by the hearings is how the Convoy came to become an illegal occupation.  Exhaustion with the Convoy’s insistence on its being heard does not in itself make the Convoy illegal or violent against persons or property.  Violating city parking by-laws on Wellington Street, Ottawa, does not make the Convoy an illegal occupation.  Premier Doug Ford of Ontario may have been the first to say that the Convoy was illegal, but that does not make it so.  Nevertheless, government ministers have taken pains to refer to the Convoy as illegal.  Which, let it be said, does not in itself constitute an act or threat of serious violence against persons or property.

Let’s turn now to the business of “for the purpose of achieving a political, religious, or ideological objective.”  We can disregard religious and focus on political and ideological.  The Trudeau government is philosophically progressive, which makes everything political a battle of ideologies.  That’s why to discredit the Convoy, the government made all kinds of references to unsavory ideologies, like white supremacism, fascism, racism, etc.  But objectively speaking the Convoy wanted a political goal: a reversal of policy on the vaccine mandate on truckers who cross the border.  The Trudeau government saw the Convoy as a challenge to its power.  Who has power, and who makes the decisions, are central to progressive ideologues.  They believe in rule of experts, precisely as occurred during the COVID pandemic.  The Trudeau government was exercising its power to deliver on the rule by expert, and hence cannot possibly bow to the wishes of truckers, who aren’t experts.

This may go to explain why the Trudeau government never, ever contemplated parlaying with the Convoy.  “This is a democracy, we can’t talk to protesters!  They’re not experts!”  And the campaign to discredit the Convoy served that end, of making parlaying with the Convoy either impossible or unnecessary.

When the Convoy protesters proved tougher and more persistent than the government imagined, it determined, contrary to fact, that the Convoy protest was “directed toward or in support of the threat or use of acts of serious violence against persons or property.”

Holding to that legal fiction is crucial to the government maintaining that the invocation of the EA was necessary and justified.  That’s what we’re getting from government ministers.

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