Full Comment - The Emergencies Act is far more dangerous than you think

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00:01:12.740 Hi, I'm Anthony Fury.

00:01:18.340 Thanks so much for joining us for the latest episode of Full Comment.

00:01:21.380 What does it mean that Prime Minister Justin Trudeau has invoked the Emergencies Act for

00:01:24.960 the first time in Canadian history?

00:01:26.660 Is it a justified move that is measured and proportionate to the issue at hand?

00:01:31.440 Or is Trudeau merely stomping on civil liberties and trying to criminalize political opposition?

00:01:37.200 Is Trudeau restoring democracy?

00:01:39.400 Or is he harming democracy?

00:01:41.480 You know, I'm not sure anyone can answer these questions definitively because we are in uncharted

00:01:45.880 terrain.

00:01:46.300 This has never happened before.

00:01:47.540 But make no mistake about it.

00:01:49.260 What's happening now in Canada is momentous and may shape how our democracy functions for

00:01:55.180 years to come.

00:01:56.660 To help us wade through all of this right now, we're joined now by a constitutional law

00:02:00.140 expert, Ryan Alford, who is a professor at the Boralaskan Faculty of Law at Lakehead University.

00:02:06.080 Welcome, Ryan.

00:02:06.620 Thanks so much for joining us.

00:02:08.720 Thank you for having me, Anthony.

00:02:09.800 And I agree this is quite a momentous.

00:02:12.260 Yeah, I mean, am I overstating things to say that how we deal with this right now may determine

00:02:18.120 how Canada functions as a government, as a democracy, as a G7 nation for some time?

00:02:24.180 Not at all.

00:02:24.840 And the window into this is to remember that the Emergencies Act is the replacement for

00:02:29.320 the War Measures Act.

00:02:30.580 This is War Measures Act 2.0.

00:02:32.600 And what happened in Canada after the War Measures Act was invoked is still resonating today.

00:02:40.340 We have a separatist party that essentially holds the balance of power in our parliament.

00:02:44.900 Quebec separatism is the dominant political mode in the province of Quebec provincially.

00:02:50.180 And there's this incredible lack of understanding between the French-Canadian and English-Canadian

00:02:55.660 points of view.

00:02:57.160 And if you take a look at the license plates in Quebec and they say,

00:02:59.920 Je m'en suis-jei, one of the things they remember is tags on the streets of Montreal,

00:03:03.960 people being rounded up in the middle of the night on the basis of a pretext, which tied

00:03:09.340 the specific acts the government was concerned about with a broader ideology.

00:03:13.260 And that's what we have to be concerned about today.

00:03:15.760 So basically something that took place decades ago still resonating today.

00:03:21.000 Right.

00:03:21.480 And the question is how the public reacts to it.

00:03:23.460 So eventually there was great revolt towards the War Measures Act.

00:03:27.280 And that's what led to its replacement with the Emergencies Act, which is meant to be far

00:03:32.720 more difficult to invoke.

00:03:34.420 And when we get into the weeds here, we'll see that there's actually no jurisdictional

00:03:37.500 basis for bringing it in, which makes it perhaps even more troubling than the War Measures

00:03:41.680 Act, because not only is it a case of it being used to suppress civil liberties, it may in

00:03:47.180 fact be being brought in in an unconstitutional manner.

00:03:50.300 Wow.

00:03:50.680 OK.

00:03:50.900 And I want to do a deep dive into all of that stuff.

00:03:52.620 But first, I guess I got to ask, how bad can things get?

00:03:55.980 Because whether it was the press conference announcing this, where Justin Trudeau, Christy

00:04:00.540 Freeland, David Lamedi, the Justice Minister, got up at the podium and said, OK, we're invoking

00:04:04.100 this act, or whether it's Trudeau's speech in the House of Commons on Thursday morning,

00:04:08.980 affirming, yeah, I'm totally with him.

00:04:10.700 I write to this.

00:04:11.320 Don't worry.

00:04:11.980 No civil liberties violations.

00:04:13.240 It's all going to be totally fine.

00:04:15.360 A number of people stepping forward to say, well, hold on a second.

00:04:18.220 This is kind of murky waters.

00:04:19.620 I mean, when we say that this is War Measures Act 2.0, I mean, what can happen here?

00:04:24.840 Let me give like an extreme scenario.

00:04:27.980 So by some reading of it, they're talking about prohibiting public assemblies, anything

00:04:32.840 sort of to do with the anti-mandate protests.

00:04:35.900 Then they're talking about directing the banks to seize various assets.

00:04:39.300 Is it conceivable, Ryan, that if the government said, OK, here's a day protester who showed

00:04:45.360 up for just two hours to wave the flag, they're not a trucker, they're not part of the convoy,

00:04:48.740 but they were there.

00:04:49.680 Maybe they tossed $2 in a hat to support the movement or what have you.

00:04:54.100 Could their bank account be frozen?

00:04:56.860 Could they have an issue with their mortgage because of what's happened?

00:04:59.380 The breadth of the debanking provisions contemplated by this act are so broad that an expert in

00:05:07.800 this area, Professor Paul Daly, he commented that it's possible that a clerk at the Quikimer

00:05:13.800 who sells a canister of propane to a protester could fall under the label of designated person

00:05:20.840 and be debanked.

00:05:21.620 Wow.

00:05:23.360 Wow.

00:05:23.940 I mean, there's a headline at the Financial Post right now, banks get Ottawa protesters

00:05:27.500 names as financial crackdown gets underway.

00:05:31.860 And, you know, we've got people out there saying, and we'll talk about this further in

00:05:35.420 a moment.

00:05:35.660 OK, there's some people with YouTube videos out there saying they want to overthrow the

00:05:38.720 government and so forth.

00:05:40.320 OK, yes, there are.

00:05:41.940 But then what do you mean when you say the phrase protesters?

00:05:44.380 Because there's also really tens of thousands of people of all walks of life, political views,

00:05:49.520 you know, all different backgrounds who are going to Ottawa or they've gone to sort of

00:05:54.180 similar protests in Toronto to say, I'm against the mandates.

00:05:56.800 I mean, are we just talking about the few overthrow the government YouTube guys or are we talking

00:06:02.660 about everyone else, too?

00:06:04.120 I mean, I guess I take from your point about the guys selling the propane, the dragnet can

00:06:09.460 go quite wide.

00:06:11.760 The problem is that they acknowledge in this declaration that not everyone at the protest has

00:06:17.480 its ideology, but everyone is tainted by association, often multiple steps removed.

00:06:22.940 So the analogy that I use is this.

00:06:25.280 At every left-wing protest that I ever do, there's invariably a splinter communist worker.

00:06:31.640 Invariably.

00:06:32.660 Sometimes several.

00:06:33.880 International Socialists, Workers' World Party, Communist Party of Canada, Marxist, Leninist.

00:06:39.220 These are organizations that are explicitly dedicated to the overthrow of constitutional government.

00:06:43.240 And they're kind of tolerated at the protest, selling their newspapers, you know, having

00:06:47.960 their particularly strange signs.

00:06:50.320 It's ridiculous to say that when you're having some of the largest protests in world history,

00:06:54.980 for instance, those that were right before the invasion of Iraq all around the world in

00:07:00.700 2003, that the mere presence of a tiny splinter group at that protest somehow defines the ideology

00:07:06.720 of the protest.

00:07:07.320 And this, the debanking measures, don't make that distinction.

00:07:11.560 It's participating in the protest, which is tainted by association, sometimes multiple

00:07:16.300 steps removed, which makes a person, a designated person, under that incredibly broad umbrella

00:07:21.960 that would catch clerks at the quickie. 0.77

00:07:24.720 And here's something, you know, very interesting.

00:07:26.720 It's not just that the Emergencies Act allows this to potentially happen.

00:07:30.900 So, you know, maybe Justin Trudeau is going to think about using it, but we're not coming

00:07:34.300 to that bridge yet, et cetera.

00:07:35.260 No, apparently the banks have already been on phone calls with people senior in the

00:07:39.860 government.

00:07:40.260 Bank executives have been speaking to the government saying, okay, what do we do?

00:07:43.640 How does this work?

00:07:44.520 I want to read a little bit from a Bloomberg news story here that came out the other day.

00:07:48.180 The banks may be concerned about running afoul of the government if they don't do the job

00:07:52.200 well and some transaction slips through that later on bites them.

00:07:57.280 That concern could prompt them to overreact.

00:08:00.200 Wow.

00:08:00.600 I mean, this is the one of the top financial news agencies in the country saying, yeah,

00:08:05.320 this stuff is happening.

00:08:06.780 And the deputy prime minister said in the House of Commons in this debate that, oh, well,

00:08:10.980 don't worry.

00:08:11.540 If something happens, there'll always be legal recourse for people who are caught up in this.

00:08:16.120 Well, I'm sorry.

00:08:17.160 The emergency declarations explicitly state that there's immunity from liability to this.

00:08:21.740 So if a bank overreacts and someone doesn't even meet that incredibly broad umbrella, there's a mix up with respect to names.

00:08:30.300 Someone effectively has their credit history ruined for years to come.

00:08:33.720 The banks can just point to the fact that they received in advance immunity from liability under the emergency.

00:08:38.740 All right.

00:08:40.200 Let me ask a kind of far out there question.

00:08:44.180 A lot of these people protesting, they've had banners that say F Trudeau on them.

00:08:48.660 Clearly, there are people who are most of them are allied and being upset with the mandates, but a lot of them are just upset with the prime minister as well.

00:08:55.200 And they would be politically opposed to him, regardless of how nice or rude their language is.

00:09:01.320 To say that this is not, I know Trudeau's using the word targeted, but to what we've just established, this is not targeted.

00:09:07.580 I mean, is this something of a political enemies list that's been cobbled together here?

00:09:13.040 There's no other way to interpret this.

00:09:14.980 I would just say that there's this notion now of anti-government extremism.

00:09:19.920 That by saying you do not agree with the government, you're somehow in this shadowy category of people who are deemed to be ideologically motivated extremists.

00:09:31.200 That's the terminology that's creeping into Canadian law.

00:09:34.020 Well, unfortunately, that's completely at odds with the way that we think about freedom of speech.

00:09:38.700 So, just in the constitutional jurisprudence of the Supreme Court of Canada, you have this notion that there is to some degree a spectrum between low-value speech and high-value speech.

00:09:47.900 The low-value speech includes things like advertising products towards children who cannot make rational decisions.

00:09:55.240 They can't really distinguish truth from ends.

00:09:57.480 You're selling cocoa cups to a five-year-old, very low-value speech.

00:10:01.200 Now, within that hierarchy, criticism of the government is the highest-value speech because that is what freedom of speech exists to protect.

00:10:10.480 That's why we have freedom of speech, explicitly to allow people to criticize the government.

00:10:15.220 Now, people who exercise that right, the question is whether or not we agree with the way that they're doing it.

00:10:21.100 And if we don't, we put them into this very amorphous category, ideologically motivated violent extremists, motivated by anti-government.

00:10:30.480 Now, Professor Alford, when we hear Justin Trudeau say at the podium, say in the House of Commons, as he said multiple times,

00:10:37.980 ah, don't worry, the charter still applies here.

00:10:40.360 Obviously, yes, this falls under the charter.

00:10:43.220 I'm not too sure what that means.

00:10:45.620 Like, he's saying that as if to say, well, don't worry, there won't be any charter violation.

00:10:48.480 But to me, that's like saying, murder is illegal in Canada.

00:10:51.400 There's not going to be any murders.

00:10:52.440 And you're like, well, OK, that's not how that works.

00:10:54.400 And then, of course, if there is a charter violation, then one, you know, raises your hand with the relevant bodies and says,

00:11:00.540 I believe my charter rights have been violated.

00:11:02.060 One seeks redress.

00:11:03.200 But isn't the whole point of the Emergencies Act that, well, right now, there's not really, I mean, there's not court orders to be issued.

00:11:09.280 You can just kind of do it.

00:11:10.580 To your point, there's that liability in case mistakes are made.

00:11:14.020 I mean, I think one is compelled, urged to follow the spirit of the charter.

00:11:19.060 But if one feels one's charter rights are being violated in this current moment, what real recourse does one have to counter that?

00:11:28.660 Just to your more general point, the reason why we have courts is because the government routinely violates the charter.

00:11:34.800 And we need the courts to step in and say, yes, we understand that you think that this was a reasonable limitation on rights.

00:11:40.460 It wasn't.

00:11:41.480 So it's kind of ignores the fact that the Constitution was set up to create this court supervision over constitutional adherence.

00:11:48.920 But more importantly, with respect to the debanking in particular, getting that resolved through court action is going to be incredibly complicated.

00:11:57.600 So what you put people in the position of potentially losing their livelihood, losing their access to the funds that they have, losing their ability to participate in the economy, and then expecting this to be resolved by the banks.

00:12:11.180 Well, I think people who've been victims of identity theft or have had their credit cards stolen, they know what that's like to try to accomplish in the best of the times.

00:12:19.300 And now when they've received this designation from the government as, you know, persona non grata, somebody who should be deemed outside of legitimate society, what kind of conduct can they expect from the banks in that situation?

00:12:35.220 Particularly if the banks are relying upon governmental regulation and indeed governmental largesse.

00:12:42.380 When you have these institutions that are so regulated by the government that they really want to stay in the government's good looks, to say that these are private actors that can be relied upon to act just in accordance with market forces is really highly naive.

00:12:56.440 One of the things that's interesting and concerning is that a lot of people made the remarks that maybe the government knows things that the public doesn't know, that the media doesn't know, and that when they further explain and are held to account as to why they've done this, things will make a bit more sense.

00:13:11.360 There's policing intel or what have you about serious, imminent, major national security things that are going to go down that they have to deal with.

00:13:18.640 And there is a document that has been released, a 14-page Emergencies Act explainer that I guess was put together, I'm not sure by what department, by the Justice Department.

00:13:26.400 When they talk about what justifies the financial ramifications that they have done here, the financial powers they've given themselves, they say,

00:13:34.760 according to the Canadian Broadcasting Corporation's February 14th analysis of the data, dot, dot, dot.

00:13:41.200 And then I go on and I read more and I read further about it.

00:13:43.920 And then there's something else about, they repeat, according to a CBC report, and that's it.

00:13:49.080 I see no secret knowledge here.

00:13:51.160 I see them saying...

00:13:52.180 You're forgetting the fact that they refer to the hackers, right?

00:13:55.380 So this is not only embarrassing, it's shockingly poor.

00:14:00.580 This is purportedly the official rationale, the explanation pursuant to the requirements set up in the Emergencies Act,

00:14:09.700 that there be an explanation for why this is warranted.

00:14:13.060 It refers to news reports and it refers to hacked material,

00:14:17.620 for which there is absolutely no chain of evidence.

00:14:20.920 None.

00:14:21.520 Right.

00:14:21.780 So if this was coming into a court of law, someone said,

00:14:24.760 oh, well, you know, we found this on the internet and it appears that somebody is claiming credit for hacking it illegally from a database.

00:14:31.540 I think the court would have something to say about that.

00:14:33.520 Now, this is being used, in fact, to invoke the replacement for the war measures.

00:14:38.360 This is shock.

00:14:39.740 Now, I remember Michael Ignatieff, before he became liberal leader, he wrote a book called The Lesser Evil,

00:14:44.480 which came out a year or two after 9-11 attacks, talking about what are the things that are acceptable to do in the war against terror.

00:14:51.020 And a number of people, and he was a thought leader on this, talking about the ticking time bomb scenario in terms of when it's acceptable to do waterboarding or other forms of torture.

00:14:58.520 This was obviously a very controversial conversation, debate at the time.

00:15:01.320 But the ticking time bomb scenario says, okay, you know that there's this bomb that's about to go off and it's going to kill hundreds of innocent people.

00:15:09.220 You know it's almost definitely happening and you know this guy, he knows stuff about it, he knows how to prevent it.

00:15:15.160 This is the guy, what can you do to this guy?

00:15:17.420 What is acceptable in this scenario?

00:15:19.120 Very controversial and people had different opinions on that.

00:15:22.200 But at least the scenarios that they were putting together in terms of like a civil liberties violation was a ticking time bomb scenario.

00:15:29.180 And here it's just kind of like, what is the threat?

00:15:33.400 But when Justin Trudeau invoked the Emergencies Act, they'd already dealt with the border bridge blockade.

00:15:39.620 Now all they have is really protests that they're not crazy about.

00:15:42.940 One, which is acutely frustrating and a public nuisance to many people in the city of Ottawa.

00:15:47.480 You know, and I understand that some of the individuals are ne'er do well.

00:15:50.480 So, you know, maybe some crazy stuff is going to happen.

00:15:53.080 But that's not a ticking time bomb scenario.

00:15:55.580 Am I right to say that, Professor?

00:15:57.760 It depends on how you define the explosion of the bomb.

00:16:00.700 So there's a line in this rationale, the official rationale required by the Emergencies Act.

00:16:06.100 The protests have become a rallying point for anti-government and anti-authority, anti-vaccination conspiracy and white supremacist groups throughout Canada and other Western countries.

00:16:17.880 So essentially, the argument is that this is creating a poll of attraction for some really problematic ideas.

00:16:25.140 And that is the harm that we need to address.

00:16:27.820 Because, as you know, all the other rationales have been knocked out.

00:16:31.080 The economic damage of the blockades, the inability to enforce the law related to border crossing.

00:16:35.640 All of this is gone.

00:16:37.040 And now we have the fact that Ottawa is a rallying point for ideas we don't like.

00:16:42.080 And that, in fact, should be disputed.

00:16:43.900 Insofar as you can see that the leaders of the convoy have made great efforts to disassociate themselves from these ideas.

00:16:49.440 To the point where people of color have been welcomed and indeed platformed at these events.

00:16:54.920 Right?

00:16:55.200 And that they've refuted the notion that somehow this is animated by white supremacist ideology.

00:17:00.380 But even if this were true, the idea is because anti-government ideology is so dangerous, we can deal with it the same way that we would deal with a ticking bomb.

00:17:09.920 So there you have, you know, essentially an extremely low hurdle for any protest in the future being suppressed with what is effectively anti-constitutional measures.

00:17:18.800 I mean, one thing when I see Trudeau speaking about this, when I see the various documents the government has released, I feel like they're really just using spin and some of the more excitable media reports to justify all of this.

00:17:31.320 There's been amplification of this fellow, what is his name, Pat King, who's, I guess, one of the main people who is behind this overthrowing the government thing.

00:17:37.660 But to your point, when I have spoken to the formal organizers of the convoy, the people who were representative of the GoFundMe, which became the Give, Send, Go, they were like, no, we can't stand this guy.

00:17:48.160 This guy has nothing to do with us.

00:17:49.160 We denounce him and so forth.

00:17:50.240 He doesn't have anything to do with the money.

00:17:51.900 I have no doubt this guy does have a few followers out there who are very interested in what he has to say.

00:17:56.560 But, you know, this was amplified as emblematic, indicative of what everybody is doing out there.

00:18:01.480 They seem to really want to take that ball and run with it.

00:18:03.760 And again, when I see what the government is using as justification, I mean, they are they're doing real cherry picking of of sort of, you know, theatrical media reports.

00:18:15.880 Sure. And I mean, the left always complain that there'd be a massive protest against something like a war and that the right wing media would pick out the representative of the Communist Party of Canada, Marxist, Leninist to do the stand up and turn up the camera.

00:18:29.920 People would deceive over this. Right.

00:18:31.460 Well, this is not the media now. It's the government.

00:18:34.180 And we look at Mario Mendicino.

00:18:37.040 He was put on the spot about this. Right.

00:18:38.880 Because he drew some connections between arrests that were made in the vicinity of Coutts and what was going on at that blockade, which, of course, was sprawled peacefully.

00:18:47.340 And then Ottawa.

00:18:48.400 What is the link between that occurring there very tenuously to that element of this broader protest?

00:18:54.720 What was the link between that and Ottawa?

00:18:56.480 And he immediately backpedaled, which was very revealing because it shows they can't actually make a link to the convoy protest organizers in Ottawa.

00:19:05.340 So instead, they just kind of used this very loose language of how it's providing, you know, it's essentially something that would be cheered on by people with whom we disagree.

00:19:16.080 Let's take a pause.

00:19:17.560 Go to a break.

00:19:18.220 We'll be back in just a moment with more full comment.

00:19:20.300 We'll be back in just a moment.

00:19:50.300 Professor Ryan Alford, one thing that is striking about Justin Trudeau talking about invoking the emergencies act is he never really articulated what it was that they were going to do.

00:20:02.380 I noticed he said, oh, these are targeted tools.

00:20:05.180 They're time limited.

00:20:06.140 So there you go.

00:20:07.760 Just kind of trust me.

00:20:09.220 I mean, should we have been expecting, should we demand a greater kind of a greater sort of breaking down of what are you actually going to do with these things?

00:20:18.560 Not only that, but why do you need them?

00:20:20.740 But just with respect to what he's going to do, I think it's pretty clear that what he wants to do is to suppress the protest.

00:20:26.480 And he's always said that these protests are illegal protests.

00:20:29.760 This is really troubling.

00:20:30.940 Has that been established yet?

00:20:33.580 Well, there's no such thing as an illegal protest.

00:20:35.980 Protesting is constitutionally protected activity under Section 2C of the Acadian Charter of Rights and Freemars.

00:20:41.680 You have freedom of assembly, which the courts have called freedom of speech in action.

00:20:46.960 Individuals at protests may break the law, but there is no such thing as an illegal protest.

00:20:52.720 If someone's involved in a conspiracy to do something like commit mischief, you can prosecute them for this.

00:20:58.360 But what they're trying to do is to spread a message.

00:21:00.940 And again, this rationale under the Emergencies Act Section 58 for why they're exercising these powers in the Emergency Act makes it fairly clear that what they want to do is suppress a message, an anti-government message.

00:21:11.900 So if that is the goal, and then these are the means, well, David Lamedi is being clearer about what the means are achieving.

00:21:20.720 He wants people to be afraid and to exist in a state of doubt as to whether or not their donations, which are intended to promote a political message, will put them at the risk of being designated persons and being excluded from all economic activity.

00:21:36.000 That was an incredibly chilling interview, because that is the goal.

00:21:42.440 I want to read to you a line from a news release that the government put out, actually from Public Safety Canada.

00:21:47.260 It says, the public order emergency grants the government the authority to apply the following temporary measures, and this is the first one they list, regulating and prohibiting public assemblies, including blockades, other than lawful advocacy, protest, or dissent.

00:22:02.860 And you read this, and you're like, oh, okay, lawful advocacy is fine.

00:22:05.760 All right, sounds good.

00:22:06.860 But who is deciding what is prohibited and regulated?

00:22:11.060 Who is deciding what is lawful advocacy or not?

00:22:15.540 But it could be the court, and we have a process for this, right?

00:22:18.740 You go to court and you apply for an injunction.

00:22:20.980 This is going on in Ottawa.

00:22:23.040 The problem that the court has in this situation is that they need to access the constitutionality of things that restrict that right to protest.

00:22:31.140 Right.

00:22:31.360 So when you come in and you say they're breaking the law because they're in violation of municipal bylaw related to parking or noise or use of parks, the protesters then have the opportunity to say, well, the application of that law in this circumstance would actually be contrary to the charter if it's not deemed to be a reasonable limitation on our constitutionally protected right to assemble and to give voice to our speech.

00:22:57.520 So then the court has to engage in this very delicate balancing act.

00:23:01.360 And then what they do is they tailor the application of those laws so that people, for instance, aren't kept up at night with air horns, but that the protesters are allowed to continue to spread their message by engaging in that constitution-connected activity.

00:23:14.300 So when we change the locus from the courts who are designated under the constitution order to apply the constitution to the government, just saying, well, okay, because someone's violating a bylaw, right, by parking on the street or being where we now say they can't be, because you see, they can now make up new laws, right?

00:23:34.300 They can say that you're not allowed to be on Parliament Hill to protest, that this then becomes an illegal protest.

00:23:40.320 That's what the Emergencies Act empowers them to do.

00:23:43.000 That's what they can do because of the Act Act.

00:23:44.560 Precisely right.

00:23:45.600 Yeah.

00:23:46.240 Wow.

00:23:46.780 Everything that the cabinet does pursuant to a public order regulation now has the force of law.

00:23:52.540 It's a complete abdication of the power of Parliament to cabinet to evade political responsibility for this decision.

00:23:58.660 So I think of that famous scene in the Frost-Nixon movie when he goes, if the president does it, it's not illegal.

00:24:04.340 I mean, I feel like, does the Emergencies Act at least temporarily?

00:24:07.840 Is that basically what this is saying now?

00:24:10.600 Well, not exactly.

00:24:11.620 And this is where people have a point with respect to civil liberties.

00:24:15.240 It's not that the charter does not apply.

00:24:17.860 It's just that it will be moving so quickly, it will be very hard to have any address for what would ultimately, in the final analysis, be deemed to have violated the charter.

00:24:26.880 But there's a more fundamental problem.

00:24:29.080 If the Emergencies Act doesn't have a rationale to be invoked, then every regulation being issued under it is unconstitutional.

00:24:36.700 Not because it violates the charter, but because it violates the Constitution Act 1867's division of powers.

00:24:42.720 So essentially, what you're doing in this situation, the convoy protesters, now the government has a way of spinning their goals and motivations.

00:24:51.560 But when you look at what they're saying, a lot of them are trying to promote this fairly moderate message that they feel that their constitutional rights have been infringed, that their right to freedom of speech, etc., is now under threat.

00:25:04.960 And they're concerned about this.

00:25:06.180 And all these political actors, Scott Moe, Yves-Franchois Blanchard, have said to the Prime Minister, do not pour oil on this fire.

00:25:15.180 What better way to pour oil on the flames than to use an unconstitutional measure to suppress protests that allege constitutional violations?

00:25:25.420 And the interesting thing is, the consensus opinion, for the most part, although it's not unanimous, is that this is, in fact, a jurisdictionally defective and therefore unconstitutional.

00:25:36.800 Wow. And yet, and I've seen those voices.

00:25:39.040 I've seen the experts such as yourself and your colleagues in the broader sort of constitutional legal expertise community step forward and say, I don't think the threshold has been met.

00:25:48.940 The Canadian Civil Liberties Association quite prominently put out that news release.

00:25:53.220 That clearly didn't stop any of this.

00:25:55.420 Quite remarkable.

00:25:58.100 So in advance, the government has been forewarned that this is an unconstitutional measure.

00:26:03.860 And they also know now that most of their rationale for applying it is gone.

00:26:09.260 The notion that we need this to promote law and order because the existing ability to promote law and order is insufficient is also gone.

00:26:18.440 Why are they so determined to move ahead with this?

00:26:20.920 And what you normally are left with is someone who studied legal and constitutional history.

00:26:25.420 Is the idea that they want to expand their powers, not just to deal with the present emergency, but to have a precedent for how they deal with future emergencies or indeed things that they can label emergencies.

00:26:35.840 It's really something.

00:26:37.840 And what we've seen from Justin Trudeau for a while now is the attempt to dehumanize the people who are participating in not just the most acute trucker convoy situation, but the broader social movement of people who are anti-mandate.

00:26:53.200 We saw those infamous tweets that were talked about around the world, which I mean, he echoed them in the House of Commons as well, saying all these people here are well, we heard the accept unacceptable views, which kind of got kind of translated in the wash to unacceptable people.

00:27:05.720 And then we heard that they are racist, sexist, transphobic, Islamophobic.

00:27:10.680 There's quite a laundry list. 0.81

00:27:11.740 He pretty much threw all the words in there. 1.00

00:27:13.840 I mean, was that really setting the stage for saying, OK, well, these people are, you know, scum of the earth. 0.98

00:27:20.180 So might as well just say, you know, no laws are applying to these guys moving forward. 0.98

00:27:24.280 Let's do what we can.

00:27:26.120 He was even more candid in French.

00:27:27.740 So when he was going through that whole list, he ended with the rhetorical question, do we tolerate these people?

00:27:35.720 As if a citizen's rights have to be tolerated, their existence has to be tolerated, and that that's actually an open question.

00:27:43.000 That is actually the hallmark of the totalitarian order.

00:27:45.900 Now, I don't want to be alarmist here.

00:27:48.180 I mean, the mere fact that someone entertains that thought doesn't necessarily mean that we're on rails towards a particular political outcome.

00:27:54.240 But it's extremely troubling because, again, this is connected to the notion of illegal protests, right?

00:28:00.360 Protests that have an anti-government message are illegal.

00:28:04.380 They're leading to bad social effects.

00:28:06.780 So, therefore, we've already deemed in advance that this shouldn't be tolerated because it leads to that bad outcome.

00:28:13.020 But, unfortunately, it's the process of public deliberation that's so essential to politics.

00:28:18.260 You go back to Supreme Court opinions of the 1930s and 1940s.

00:28:21.620 Even before we had the Charter, what the courts were saying, freedom of speech is the bedrock of a parliamentary democracy.

00:28:29.960 If people don't have the ability to say what they want to say publicly, without repercussions, without sanctions, the entire democratic process is nullified.

00:28:38.760 So what would be the basis for the government's authority in that situation?

00:28:41.920 They're essentially destroying the foundation upon which they stand.

00:28:44.860 I mean, one thing that's very interesting here, and the people who have stepped forward and said, what sort of precedent does this set?

00:28:51.140 I know back in the 1990s, early 2000s, there was a series of eco-terrorism attacks in terms of bombings of pipelines in Alberta and in BC.

00:29:01.280 Thankfully, we really haven't seen much of that for a number of years.

00:29:03.640 But given what we've done now, bringing in the Emergencies Act for something where we have not seen any sort of significant acts of violence committed,

00:29:11.880 we know people are very passionate about their environmental and green causes right now.

00:29:15.440 Could a subsequent prime minister say, OK, there's two pipeline bombings within a month?

00:29:20.760 All right, let's do this.

00:29:22.400 Oh, and here's the list of anyone who's donated to this or that or the other.

00:29:25.200 Even though it's probably only one guy doing these bombings, here's 20,000 people who I'm going to subject to these measures now.

00:29:33.640 You know, I just need to refer to the United States here briefly.

00:29:37.140 When I started my career as a professor, I was working in the United States.

00:29:40.800 And the real problems that we saw with respect to emergency power related to the war on terror.

00:29:47.220 And what happened in the war on terror was once a democratic politician got into the presidency, Barack Obama,

00:29:55.060 there was no longer any concern for the most egregious things that were happening, for instance, targeting killing.

00:30:00.180 And I wrote this book that was trying to keep people's consciousness on this.

00:30:04.480 It was called Permanent State of Emergency.

00:30:06.280 And I asked my publisher if I could have until Election Day 2016 to write the afterword.

00:30:12.620 And they said, oh, absolutely, that's fine.

00:30:14.300 And I thought I would just write something very kind of analogous about how we need to continue to be aware of the dangers.

00:30:19.860 Well, unfortunately, that was the day that Donald Trump was elected.

00:30:22.020 And it was really hard not to just say, I told you so, I told you so, I told you so a lot of times.

00:30:27.880 But instead, what I said was the separation of powers and all of these constitutional safeguards are like a bulldozer with various safety features.

00:30:37.340 You strip off all these safety features and then eventually some maniac climbs on board.

00:30:42.380 Well, there's nothing preventing him from steamrolling everything.

00:30:44.800 People can't imagine this, right? 0.95

00:30:47.360 I mean, everyone was so shocked that this, you know, buffoon that they never thought would be elected president would have control of all of those levers of power. 0.90

00:30:56.380 So right now, it's the Liberal Party. 0.88

00:30:57.800 It's the party of government, sure.

00:30:59.800 People can't imagine Maxime Bernier being elected prime minister of Canada.

00:31:04.920 They can't imagine it.

00:31:06.280 But history is long and winding.

00:31:09.420 We do not want to have this sort of system in place just because we only trust one person or one political party.

00:31:17.820 I really have a sense, though, that people should be much more concerned with shifts in the political wind, given the rise of populism, which supposedly motivates all of this.

00:31:27.720 It's the fear.

00:31:28.600 It's this idea that populism is a real threat that means that we need to clamp down on anti-government viewpoints.

00:31:34.400 Well, if you're really taking that threat seriously, you should be a lot more concerned with the erosion of these procedural safeguards.

00:31:40.760 Yeah, one thing I find interesting is the invocation of the phrase slippery slope.

00:31:45.080 And look, I certainly hope that the worst case scenarios that we've painted don't happen, that Justin Trudeau doesn't choose to call for people to do this, call for the government to do these things, seizing people's property and so on.

00:31:58.420 But I mean, are we at a slippery slope or are we just sliding rapidly down the hill right now and the brakes aren't really working?

00:32:04.260 I almost think we're beyond invoking that tired phrase like we're we're in we're in the trouble spot.

00:32:09.600 We are.

00:32:10.520 I mean, we have right now the open contemplation of commandeering, not merely vehicles to tow big rigors, but essentially conscripting people to do it on pain of loss.

00:32:22.800 That a public order regulation could say you don't get behind the wheel of your wrecker.

00:32:28.300 You could be sentenced to five years in prison using that as the coercive threat.

00:32:32.740 It's really hard to see that as not the end point, not the beginning of the slippery slope.

00:32:38.100 I mean, this is this is really troubling.

00:32:40.760 And I would say, though, also the debanking, that essentially on the basis of the fact that we don't want people participating in society, that they're not people whose existence we should tolerate participating in society or spreading a message that we already know in advance is wrong, that we essentially make them non-personally financially.

00:32:59.280 That's that's happening. I'm getting cold calls at my office from people who are panicking.

00:33:04.640 People are losing their jobs already, over $100 donations to what they thought was a peaceful protest.

00:33:10.540 I've had people email me as well saying, you know, I give this $100 donation and they get some weird threat sent to them via email because, of course, their information has been leaked.

00:33:19.640 I want to ask you, Professor Alford, we're seeing already at Parliament Hill barriers going up to stop people from getting on the grounds of Parliament Hill.

00:33:28.600 And I take the point that they don't want the trucks to be able to go actually onto Parliament Hill right in front of the House of Commons.

00:33:34.320 At the same time, we have always seen.

00:33:36.780 And one thing that's very interesting about this is that the protest is mostly taking place on Wellington Street in front of the building, although people did go on the lawn during the weekends when the larger numbers of people came in the day protesters.

00:33:47.120 But I worry what it means to put up these these barriers, these walls, stopping even just the individuals from walking on the lawns of Parliament Hill.

00:33:53.800 I was speaking a number of years ago to the comedian Tom Green. It was not about politics.

00:33:57.600 I don't want to try and say he was commenting on political issues, but he grew up in the city of Ottawa and he was speaking really fondly.

00:34:02.760 I've never forgotten this anecdote about how they would play soccer as teenagers on the on the green there on the grass in front of Parliament Hill.

00:34:09.720 And sometimes the RCMP, when it would get dark, would even turn on the headlights of their vehicles to give them the floodlights for their soccer pitch.

00:34:15.400 I just thought it was a really charming, you know, cute story about the city of Ottawa.

00:34:18.060 But I think back on that a lot whenever people are like, how dare you this or that?

00:34:22.180 And I'm like, oh, I don't know. It's the people's green. 0.99

00:34:24.340 And yet now we're setting an establishment where the people are going to be very afraid, potentially, of stepping foot on that green.

00:34:31.060 Not only is the people's green to play soccer, it's explicitly the people's green to protest on.

00:34:36.380 So if you listened in on this injunction here, which was held with respect to the Ambassador Bridge,

00:34:41.920 Chief Justice Morowitz of the Superior Court of Justice of Ontario was doing an analysis of how you balance the constitutional rights of the protester

00:34:48.860 with respect to the law and all the various harms that ensued for blocking international border costs.

00:34:54.340 And he did the analysis the Supreme Court has worked out, which starts with this question of,

00:34:59.060 is this the kind of place where we traditionally tolerate protests?

00:35:02.820 Is this the place to protest or is it not?

00:35:06.200 Well, you know, international bridges, for the most part, no.

00:35:09.120 Right.

00:35:09.340 Right. So then the question is very much the same sort of question as the spectrum of high-value speech with low-value speech.

00:35:16.260 What is at the highest end of the places where it is appropriate to protest?

00:35:20.680 Square with Parliament Hill.

00:35:22.040 Right.

00:35:22.320 Exactly that. Has been for nigh on a century.

00:35:25.360 Right.

00:35:25.960 And so now we say, well, you can't do that here.

00:35:28.480 And then you clamp down on protesters because now they're doing it in a place where it's going to be more disruptive.

00:35:34.360 For instance, Wellington Street, what have you?

00:35:36.180 So essentially it creates a catch-22, but really it's this contempt for the notion that this place exists for the exercise of constitutional rights, which is very troubling.

00:35:47.420 Just with respect to what you said about Crown Green in Ottawa, well, I grew up in Ottawa, too.

00:35:51.040 And I remember before 9-11, I used to cut across a tunnel underneath the McDonnell-Cartier Bridge.

00:35:59.400 It sort of connects the Rideau Centre in Ottawa with kind of the Ottawa City Hall Park.

00:36:06.380 And that was closed off.

00:36:09.220 Before that, I used to cut through the Department of National Defence.

00:36:12.700 It would actually just walk through the lobby of the National Defence Headquarters.

00:36:17.800 And again, Ottawa never really had any serious threat of terrorism at the time.

00:36:22.380 And why would it?

00:36:23.700 Right.

00:36:24.260 In my opinion, in my estimation.

00:36:25.700 Looking back on this, we just think, well, it was out of an abundance of caution, right?

00:36:29.520 That we're doing things that had this potential to prevent harm.

00:36:32.820 But what's the actual harm here?

00:36:34.680 When you do all of these things out of an abundance of caution, and this is a great allegory for the pandemic, are you ignoring the fact that all of these things collectively tend to create this chill?

00:36:45.040 They tend to make it almost impossible to protest, to participate in political activity, to put forward your viewpoint?

00:36:51.300 And the unintended consequence of this is, well, when you marginalise all of these people, you create the kind of alienation that leads to extremism.

00:37:00.400 And we've understood this dynamic clearly for decades.

00:37:03.160 That if you push people out of the mainstream, if you label them as deplorable and not worthy of participating in the society, those people will have no stake in the society.

00:37:13.000 So we're creating the very dynamic that we're trying to prevent.

00:37:16.280 And that's just out of an abundance of caution.

00:37:18.740 But you can't think that these don't have effects.

00:37:20.940 Yeah, I do think the idea of precedent setting is totally valid in that I remember when Stephen Harper was prime minister, there were complaints that omnibus bills got more, well, omnipresent.

00:37:31.420 And we were seeing them more and more all the time, just packing a whole bunch of different issues into one piece of legislation.

00:37:36.640 And the documents were ballooning such that various committees, parliamentarians didn't have time to adequately assess.

00:37:42.060 And then the timing of the legislative session was such, now, come on, you got to pass this through, pass this through.

00:37:46.740 And all the opposition leaders were like, this is just, you know, it's never how it's been done before.

00:37:51.500 We shouldn't be doing it.

00:37:52.260 And, of course, now it is how it is done.

00:37:53.660 Justin Trudeau just does it that way.

00:37:56.220 And he's normalized all of that.

00:37:58.040 I have up a column headline, something I wrote in 2019.

00:38:01.040 The headline was, the SNC-Lavalin affair is a small but real example of democratic backsliding.

00:38:05.620 I was complaining about that 10-second conversation with Jody Wilson-Raybould that actually could have much longer ramifications where he wrongly pressures her to drop charges against SNC-Lavalin, sort of breaking that firewall.

00:38:18.380 Will that be normalized?

00:38:19.880 And calling that, you know, democratic backsliding.

00:38:22.580 I mean, to what degree, when we look at that, when we look at what Justin Trudeau has done right now, I mean, okay, to put a big picture, you know, we used to say in the 90s, don't worry, China is going to become more like us soon.

00:38:34.160 And increasingly, people are saying, well, hold on a second.

00:38:36.540 Are we more becoming like these other countries that we don't want to head in that direction?

00:38:41.960 The pandemic was certainly inspirational for a lot of people.

00:38:44.420 They looked at what's going on in China and said, well, why aren't we doing this?

00:38:47.400 Because the idea is that the, you know, the elite understand what needs to be done and the hoi polloi need to really obey.

00:38:55.260 And with respect to Trudeau, I would also say now it's Trudeau and David Lamedy, right?

00:39:00.720 Who is David Lamedy?

00:39:01.840 He's essentially the person who fulfilled the role of the hatchet man, right?

00:39:05.040 Who came in and took over this poison chalice after the prime minister violated the Shawcross Convention.

00:39:11.620 And his lawyers did something that would probably, in other circumstances, subject them to professional regulation and discipline.

00:39:18.580 Really quite shocking that this person who came in to play that role is now the person who's going on television, acting as a debanking people on the basis of their political opinions.

00:39:28.080 isn't a huge threat to, you know, political activity in Canada.

00:39:31.960 But again, if you think that Canada should admire China's basic dictatorship, you don't really see a problem with it.

00:39:38.180 But this is the style of hope that you determine in advance what the desired outcome is.

00:39:43.140 And when people try to share their views, you determine also in advance whether or not those are part of the acceptable mainstream discourse.

00:39:51.860 And if they're not, you just exclude them.

00:39:53.880 That's just not how the democratic process is supposed to work.

00:39:56.320 And it actually vitiates the constitutional authority of the government to do so.

00:40:00.780 Because it rests upon a fulsome conception of democracy.

00:40:04.160 Professional regulation discipline.

00:40:06.000 Let's talk about what happens if it is determined weeks later that what has gone on with the Emergencies Act was a charter violation, was an overstep, was not appropriate.

00:40:16.660 Because I understand that there does have to be some sort of parliamentary committee that looks into its usage, that is mandated, that is regulated.

00:40:23.960 Are there actually any meaningful tools, aside from the prime minister going out and doing one of his speeches where he talks about how this is a learning opportunity for all of us?

00:40:33.220 I'm really curious as to whether or not they're just going to allude to evidence that they don't allow us to see.

00:40:39.400 Because this has been the pattern.

00:40:40.920 Well, there's been the pattern so far.

00:40:42.860 I mean, look at the contempt of Parliament.

00:40:45.000 And I'm using that in a technical sense.

00:40:47.200 There was a contempt of Parliament over the refusal of Public Health Affairs Canada to turn over documents to Parliament itself related to the Winnipeg lab.

00:40:56.460 And this really troubling incident of materials being smuggled out of the Winnipeg lab to another facility in actually Wuhan, China, that the government was willing to engage in contempt of Parliament at a remarkable level, right?

00:41:10.520 At the level where the head of PHAC was brought to the bar of the House of Commons and publicly censured when Parliament was considering sending the sergeant-at-arms of the House of Commons to PHAC to obtain those documents.

00:41:22.660 These are things that haven't been done since the 19th century, right?

00:41:25.260 And then the solution to this crisis, according to the government, is to force the discussion of the secret material into a committee called the National Security and Intelligence Committee of Parliamentarians.

00:41:35.520 Right.

00:41:36.220 In which, and this is the subject of a constitutional challenge, in which the parliamentarians in that body, the senators and the members of Parliament, if they go back to Parliament and stay on the floor of the House of Commons or in a committee meeting of the House of Commons or the Senate,

00:41:51.360 they are subject to prosecution under the Security of Information Act.

00:41:55.820 That is the level of control of information that's typical of this government.

00:41:59.800 It's worse than the Harper government.

00:42:01.740 So the idea that they would just make allusions to documents and then say, well, we can't tell you about, you know, all the super-secret stuff that allowed us to conclude that there was a white nationalist insurrection in the making.

00:42:13.060 By the way, this is another parallel to the War Measures Act, right?

00:42:18.080 Because the jurisdictional basis for the invocation of the War Measures Act was not what the FLQ was doing in terms of criminal activity,

00:42:25.440 but the apprehended insurrection in a broader sense of student activists and labor union activists to overthrow the government of Robert Barassi, right?

00:42:33.280 And it turned out much, much later that there was simply no basis for that at all.

00:42:38.860 But the government, of course, could refer to all of these, you know, secret investigations.

00:42:43.740 And then it only took years and years to uncover, and this is a report from the Donnie Commission, that the RCMP had ginned up quite a lot of it.

00:42:51.300 But this is the thing that you don't find out about if the government can make these claims to keep these documents secret for a certain number of years.

00:42:57.840 Okay, Ryan, to your point about writing that afterword to your book that you were talking about, let's write the afterword to this right now, or at least try and do a first draft of it.

00:43:05.380 You referenced earlier on that, of course, Emergencies Act is sort of a replacement of the War Measures Act after the controversies emerged of,

00:43:12.480 we shouldn't have done this in the first place.

00:43:14.520 What do we do as the afterword here?

00:43:16.660 This has been done.

00:43:18.020 A lot of people unhappy with it.

00:43:19.800 Many experts saying it's not justified.

00:43:21.960 When this is all wrapped up, what do we do?

00:43:25.400 We have to decide, fundamentally, as a society, whether or not we believe in constitutional governance.

00:43:32.680 We can either conclude that necessity creates the basis of law, and that necessity can be judged by the sovereign.

00:43:40.420 And whenever they decide that a state of exception exists, they can nearly override all the laws of the Constitution itself.

00:43:46.220 Or we can say that all authority is derived from the Constitution.

00:43:51.040 And there's really no daylight between those two positions.

00:43:53.440 You don't get to say, well, there's a third position in the middle.

00:43:56.460 It's either the government can openly, transparently, and publicly justify why its exercise of power is in accordance with our constitutional text.

00:44:05.960 Or we can let them to do end runs because they have frightened us into believing that that's necessary.

00:44:12.040 And that necessity is effectively more important than the Constitution itself.

00:44:15.720 And so we have to actually make a very hard look and say, which state of affairs will we tolerate?

00:44:21.680 And will we tolerate certain risks in order to say that we live in a free and democratic society?

00:44:28.920 Ryan, can we and should we get rid of the Emergencies Act?

00:44:33.160 When it was drafted as a replacement for the Warmest Reset Act, it looked as if the jurisdictional hurdles in it were so high that it would be reserved only for a situation where there'd be no argument.

00:44:47.160 And we never could have imagined.

00:44:48.740 I can't help but laugh.

00:44:50.180 Clearly that's not happening.

00:44:52.300 Well, you have five premiers, right, openly contesting this fact.

00:44:55.980 You have Scott Moe imploring members of Parliament not to invoke it.

00:44:59.800 This is a man who had blockades, you know, ditto Jason Kenney, just ditto the premier of Quebec.

00:45:06.620 It's remarkable.

00:45:07.540 There's obviously an argument as to whether or not it's reasonably justifiable in this situation.

00:45:13.080 But we never thought that would be the case because we thought, well, after what we saw in the War Measures Act, we would have learned our lesson.

00:45:19.500 But the problem is people do not have that kind of historical memory.

00:45:23.400 They don't remember texts in the streets of Montreal.

00:45:25.640 They don't have a relative necessarily who could tell them how frightening it was to see this and to worry about soldiers coming to your residence at two in the morning because you're a student activist and calling you off to jail with no due process.

00:45:37.480 Wow.

00:45:37.720 They don't have that historical memory.

00:45:39.680 So unfortunately, we can't rely on that as a check on the emergency powers of this nature.

00:45:45.500 At this point, it's just like Chekhov's gun.

00:45:47.380 If you see it hanging on the wall, you know it's going to be used in the third act.

00:45:50.720 So I think it's time for us to get rid of it once it's wrong.

00:45:53.000 Buckle up, Canada.

00:45:54.980 We're up for a bumpy ride.

00:45:56.380 Professor Ryan Alford, thanks so much for joining us.

00:45:58.860 Great insights, great details.

00:46:00.360 Much appreciated.

00:46:01.920 My great pleasure, Anthony.

00:46:02.940 Thank you.

00:46:03.460 All the best.

00:46:04.620 Full Comment is a post-media podcast.

00:46:06.820 I'm Anthony Fury.

00:46:07.940 This episode was produced by Andre Proulx with theme music by Bryce Hall.

00:46:11.920 Kevin Libin is the executive producer.

00:46:14.340 You can subscribe to Full Comment on Apple Podcasts, Google, Spotify, and Amazon Music.

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00:46:21.780 You can help us by giving us a rating or a review, and by telling your friends about us.

00:46:26.020 Thanks for listening.

Full Comment - February 21, 2022

The Emergencies Act is far more dangerous than you think

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