Justin Trudeau has invoked the Emergencies Act for the first time in Canadian history. Is it a justified move that is measured and proportionate to the issue at hand? Or is Trudeau merely stomping on civil liberties and trying to criminalize political opposition? To help us wade through all of this, we re joined by constitutional law expert Ryan Alford.
00:08:40.200Let me ask a kind of far out there question.
00:08:44.180A lot of these people protesting, they've had banners that say F Trudeau on them.
00:08:48.660Clearly, 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.
00:08:55.200And they would be politically opposed to him, regardless of how nice or rude their language is.
00:09:01.320To say that this is not, I know Trudeau's using the word targeted, but to what we've just established, this is not targeted.
00:09:07.580I mean, is this something of a political enemies list that's been cobbled together here?
00:09:13.040There's no other way to interpret this.
00:09:14.980I would just say that there's this notion now of anti-government extremism.
00:09:19.920That 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.
00:09:31.200That's the terminology that's creeping into Canadian law.
00:09:34.020Well, unfortunately, that's completely at odds with the way that we think about freedom of speech.
00:09:38.700So, 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.
00:09:47.900The low-value speech includes things like advertising products towards children who cannot make rational decisions.
00:09:55.240They can't really distinguish truth from ends.
00:09:57.480You're selling cocoa cups to a five-year-old, very low-value speech.
00:10:01.200Now, within that hierarchy, criticism of the government is the highest-value speech because that is what freedom of speech exists to protect.
00:10:10.480That's why we have freedom of speech, explicitly to allow people to criticize the government.
00:10:15.220Now, people who exercise that right, the question is whether or not we agree with the way that they're doing it.
00:10:21.100And if we don't, we put them into this very amorphous category, ideologically motivated violent extremists, motivated by anti-government.
00:10:30.480Now, Professor Alford, when we hear Justin Trudeau say at the podium, say in the House of Commons, as he said multiple times,
00:10:37.980ah, don't worry, the charter still applies here.
00:10:40.360Obviously, yes, this falls under the charter.
00:11:41.480So it's kind of ignores the fact that the Constitution was set up to create this court supervision over constitutional adherence.
00:11:48.920But more importantly, with respect to the debanking in particular, getting that resolved through court action is going to be incredibly complicated.
00:11:57.600So 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.
00:12:11.180Well, 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.
00:12:19.300And 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?
00:12:35.220Particularly if the banks are relying upon governmental regulation and indeed governmental largesse.
00:12:42.380When 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.
00:12:56.440One 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.
00:13:11.360There'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.
00:13:18.640And 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.
00:13:26.400When they talk about what justifies the financial ramifications that they have done here, the financial powers they've given themselves, they say,
00:13:34.760according to the Canadian Broadcasting Corporation's February 14th analysis of the data, dot, dot, dot.
00:13:41.200And then I go on and I read more and I read further about it.
00:13:43.920And then there's something else about, they repeat, according to a CBC report, and that's it.
00:14:21.780So if this was coming into a court of law, someone said,
00:14:24.760oh, well, you know, we found this on the internet and it appears that somebody is claiming credit for hacking it illegally from a database.
00:14:31.540I think the court would have something to say about that.
00:14:33.520Now, this is being used, in fact, to invoke the replacement for the war measures.
00:14:39.740Now, I remember Michael Ignatieff, before he became liberal leader, he wrote a book called The Lesser Evil,
00:14:44.480which 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.
00:14:51.020And 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.
00:14:58.520This was obviously a very controversial conversation, debate at the time.
00:15:01.320But 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.
00:15:09.220You know it's almost definitely happening and you know this guy, he knows stuff about it, he knows how to prevent it.
00:15:15.160This is the guy, what can you do to this guy?
00:15:57.760It depends on how you define the explosion of the bomb.
00:16:00.700So there's a line in this rationale, the official rationale required by the Emergencies Act.
00:16:06.100The 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.
00:16:17.880So essentially, the argument is that this is creating a poll of attraction for some really problematic ideas.
00:16:25.140And that is the harm that we need to address.
00:16:27.820Because, as you know, all the other rationales have been knocked out.
00:16:31.080The economic damage of the blockades, the inability to enforce the law related to border crossing.
00:16:55.200And that they've refuted the notion that somehow this is animated by white supremacist ideology.
00:17:00.380But 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.
00:17:09.920So 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.
00:17:18.800I 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.
00:17:31.320There'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.
00:17:37.660But 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.
00:17:50.240He doesn't have anything to do with the money.
00:17:51.900I have no doubt this guy does have a few followers out there who are very interested in what he has to say.
00:17:56.560But, you know, this was amplified as emblematic, indicative of what everybody is doing out there.
00:18:01.480They seem to really want to take that ball and run with it.
00:18:03.760And 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.
00:18:15.880Sure. 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.
00:18:29.920People would deceive over this. Right.
00:18:31.460Well, this is not the media now. It's the government.
00:18:37.040He was put on the spot about this. Right.
00:18:38.880Because 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.
00:18:48.400What is the link between that occurring there very tenuously to that element of this broader protest?
00:18:54.720What was the link between that and Ottawa?
00:18:56.480And he immediately backpedaled, which was very revealing because it shows they can't actually make a link to the convoy protest organizers in Ottawa.
00:19:05.340So 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.
00:19:50.300Professor 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.
00:20:02.380I noticed he said, oh, these are targeted tools.
00:20:09.220I 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?
00:20:18.560Not only that, but why do you need them?
00:20:20.740But 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.
00:20:26.480And he's always said that these protests are illegal protests.
00:20:33.580Well, there's no such thing as an illegal protest.
00:20:35.980Protesting is constitutionally protected activity under Section 2C of the Acadian Charter of Rights and Freemars.
00:20:41.680You have freedom of assembly, which the courts have called freedom of speech in action.
00:20:46.960Individuals at protests may break the law, but there is no such thing as an illegal protest.
00:20:52.720If someone's involved in a conspiracy to do something like commit mischief, you can prosecute them for this.
00:20:58.360But what they're trying to do is to spread a message.
00:21:00.940And 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.
00:21:11.900So if that is the goal, and then these are the means, well, David Lamedi is being clearer about what the means are achieving.
00:21:20.720He 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.
00:21:36.000That was an incredibly chilling interview, because that is the goal.
00:21:42.440I want to read to you a line from a news release that the government put out, actually from Public Safety Canada.
00:21:47.260It 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.
00:22:02.860And you read this, and you're like, oh, okay, lawful advocacy is fine.
00:22:23.040The problem that the court has in this situation is that they need to access the constitutionality of things that restrict that right to protest.
00:22:31.360So 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.
00:22:57.520So then the court has to engage in this very delicate balancing act.
00:23:01.360And 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.
00:23:14.300So 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?
00:23:34.300They can say that you're not allowed to be on Parliament Hill to protest, that this then becomes an illegal protest.
00:23:40.320That's what the Emergencies Act empowers them to do.
00:23:43.000That's what they can do because of the Act Act.
00:24:11.620And this is where people have a point with respect to civil liberties.
00:24:15.240It's not that the charter does not apply.
00:24:17.860It'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.
00:24:26.880But there's a more fundamental problem.
00:24:29.080If the Emergencies Act doesn't have a rationale to be invoked, then every regulation being issued under it is unconstitutional.
00:24:36.700Not because it violates the charter, but because it violates the Constitution Act 1867's division of powers.
00:24:42.720So essentially, what you're doing in this situation, the convoy protesters, now the government has a way of spinning their goals and motivations.
00:24:51.560But 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.
00:25:06.180And all these political actors, Scott Moe, Yves-Franchois Blanchard, have said to the Prime Minister, do not pour oil on this fire.
00:25:15.180What better way to pour oil on the flames than to use an unconstitutional measure to suppress protests that allege constitutional violations?
00:25:25.420And 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.
00:25:36.800Wow. And yet, and I've seen those voices.
00:25:39.040I'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.
00:25:48.940The Canadian Civil Liberties Association quite prominently put out that news release.
00:25:58.100So in advance, the government has been forewarned that this is an unconstitutional measure.
00:26:03.860And they also know now that most of their rationale for applying it is gone.
00:26:09.260The notion that we need this to promote law and order because the existing ability to promote law and order is insufficient is also gone.
00:26:18.440Why are they so determined to move ahead with this?
00:26:20.920And what you normally are left with is someone who studied legal and constitutional history.
00:26:25.420Is 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.
00:26:37.840And 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.
00:26:53.200We 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.
00:27:05.720And then we heard that they are racist, sexist, transphobic, Islamophobic.
00:27:27.740So when he was going through that whole list, he ended with the rhetorical question, do we tolerate these people?
00:27:35.720As if a citizen's rights have to be tolerated, their existence has to be tolerated, and that that's actually an open question.
00:27:43.000That is actually the hallmark of the totalitarian order.
00:27:45.900Now, I don't want to be alarmist here.
00:27:48.180I mean, the mere fact that someone entertains that thought doesn't necessarily mean that we're on rails towards a particular political outcome.
00:27:54.240But it's extremely troubling because, again, this is connected to the notion of illegal protests, right?
00:28:00.360Protests that have an anti-government message are illegal.
00:28:04.380They're leading to bad social effects.
00:28:06.780So, therefore, we've already deemed in advance that this shouldn't be tolerated because it leads to that bad outcome.
00:28:13.020But, unfortunately, it's the process of public deliberation that's so essential to politics.
00:28:18.260You go back to Supreme Court opinions of the 1930s and 1940s.
00:28:21.620Even before we had the Charter, what the courts were saying, freedom of speech is the bedrock of a parliamentary democracy.
00:28:29.960If people don't have the ability to say what they want to say publicly, without repercussions, without sanctions, the entire democratic process is nullified.
00:28:38.760So what would be the basis for the government's authority in that situation?
00:28:41.920They're essentially destroying the foundation upon which they stand.
00:28:44.860I mean, one thing that's very interesting here, and the people who have stepped forward and said, what sort of precedent does this set?
00:28:51.140I 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.
00:29:01.280Thankfully, we really haven't seen much of that for a number of years.
00:29:03.640But 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,
00:29:11.880we know people are very passionate about their environmental and green causes right now.
00:29:15.440Could a subsequent prime minister say, OK, there's two pipeline bombings within a month?
00:29:22.400Oh, and here's the list of anyone who's donated to this or that or the other.
00:29:25.200Even 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.
00:29:33.640You know, I just need to refer to the United States here briefly.
00:29:37.140When I started my career as a professor, I was working in the United States.
00:29:40.800And the real problems that we saw with respect to emergency power related to the war on terror.
00:29:47.220And what happened in the war on terror was once a democratic politician got into the presidency, Barack Obama,
00:29:55.060there was no longer any concern for the most egregious things that were happening, for instance, targeting killing.
00:30:00.180And I wrote this book that was trying to keep people's consciousness on this.
00:30:04.480It was called Permanent State of Emergency.
00:30:06.280And I asked my publisher if I could have until Election Day 2016 to write the afterword.
00:30:12.620And they said, oh, absolutely, that's fine.
00:30:14.300And I thought I would just write something very kind of analogous about how we need to continue to be aware of the dangers.
00:30:19.860Well, unfortunately, that was the day that Donald Trump was elected.
00:30:22.020And it was really hard not to just say, I told you so, I told you so, I told you so a lot of times.
00:30:27.880But instead, what I said was the separation of powers and all of these constitutional safeguards are like a bulldozer with various safety features.
00:30:37.340You strip off all these safety features and then eventually some maniac climbs on board.
00:30:42.380Well, there's nothing preventing him from steamrolling everything.
00:30:47.360I 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.
00:31:09.420We do not want to have this sort of system in place just because we only trust one person or one political party.
00:31:17.820I 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.
00:31:28.600It's this idea that populism is a real threat that means that we need to clamp down on anti-government viewpoints.
00:31:34.400Well, if you're really taking that threat seriously, you should be a lot more concerned with the erosion of these procedural safeguards.
00:31:40.760Yeah, one thing I find interesting is the invocation of the phrase slippery slope.
00:31:45.080And 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.
00:31:58.420But 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?
00:32:04.260I almost think we're beyond invoking that tired phrase like we're we're in we're in the trouble spot.
00:32:10.520I 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.
00:32:22.800That a public order regulation could say you don't get behind the wheel of your wrecker.
00:32:28.300You could be sentenced to five years in prison using that as the coercive threat.
00:32:32.740It's really hard to see that as not the end point, not the beginning of the slippery slope.
00:32:38.100I mean, this is this is really troubling.
00:32:40.760And 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.
00:32:59.280That's that's happening. I'm getting cold calls at my office from people who are panicking.
00:33:04.640People are losing their jobs already, over $100 donations to what they thought was a peaceful protest.
00:33:10.540I'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.
00:33:19.640I 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.
00:33:28.600And 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.
00:33:34.320At the same time, we have always seen.
00:33:36.780And 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.
00:33:47.120But 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.
00:33:53.800I was speaking a number of years ago to the comedian Tom Green. It was not about politics.
00:33:57.600I 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.
00:34:02.760I'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.
00:34:09.720And 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.
00:34:15.400I just thought it was a really charming, you know, cute story about the city of Ottawa.
00:34:18.060But I think back on that a lot whenever people are like, how dare you this or that?
00:34:22.180And I'm like, oh, I don't know. It's the people's green.
00:34:24.340And yet now we're setting an establishment where the people are going to be very afraid, potentially, of stepping foot on that green.
00:34:31.060Not only is the people's green to play soccer, it's explicitly the people's green to protest on.
00:34:36.380So if you listened in on this injunction here, which was held with respect to the Ambassador Bridge,
00:34:41.920Chief Justice Morowitz of the Superior Court of Justice of Ontario was doing an analysis of how you balance the constitutional rights of the protester
00:34:48.860with respect to the law and all the various harms that ensued for blocking international border costs.
00:34:54.340And he did the analysis the Supreme Court has worked out, which starts with this question of,
00:34:59.060is this the kind of place where we traditionally tolerate protests?
00:35:02.820Is this the place to protest or is it not?
00:35:06.200Well, you know, international bridges, for the most part, no.
00:35:25.960And so now we say, well, you can't do that here.
00:35:28.480And then you clamp down on protesters because now they're doing it in a place where it's going to be more disruptive.
00:35:34.360For instance, Wellington Street, what have you?
00:35:36.180So 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.
00:35:47.420Just with respect to what you said about Crown Green in Ottawa, well, I grew up in Ottawa, too.
00:35:51.040And I remember before 9-11, I used to cut across a tunnel underneath the McDonnell-Cartier Bridge.
00:35:59.400It sort of connects the Rideau Centre in Ottawa with kind of the Ottawa City Hall Park.
00:36:34.680When 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?
00:36:45.040They tend to make it almost impossible to protest, to participate in political activity, to put forward your viewpoint?
00:36:51.300And the unintended consequence of this is, well, when you marginalise all of these people, you create the kind of alienation that leads to extremism.
00:37:00.400And we've understood this dynamic clearly for decades.
00:37:03.160That 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.
00:37:13.000So we're creating the very dynamic that we're trying to prevent.
00:37:16.280And that's just out of an abundance of caution.
00:37:18.740But you can't think that these don't have effects.
00:37:20.940Yeah, 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.
00:37:31.420And we were seeing them more and more all the time, just packing a whole bunch of different issues into one piece of legislation.
00:37:36.640And the documents were ballooning such that various committees, parliamentarians didn't have time to adequately assess.
00:37:42.060And then the timing of the legislative session was such, now, come on, you got to pass this through, pass this through.
00:37:46.740And all the opposition leaders were like, this is just, you know, it's never how it's been done before.
00:37:58.040I have up a column headline, something I wrote in 2019.
00:38:01.040The headline was, the SNC-Lavalin affair is a small but real example of democratic backsliding.
00:38:05.620I 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.
00:38:19.880And calling that, you know, democratic backsliding.
00:38:22.580I 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.
00:38:34.160And increasingly, people are saying, well, hold on a second.
00:38:36.540Are we more becoming like these other countries that we don't want to head in that direction?
00:38:41.960The pandemic was certainly inspirational for a lot of people.
00:38:44.420They looked at what's going on in China and said, well, why aren't we doing this?
00:38:47.400Because the idea is that the, you know, the elite understand what needs to be done and the hoi polloi need to really obey.
00:38:55.260And with respect to Trudeau, I would also say now it's Trudeau and David Lamedy, right?
00:39:01.840He's essentially the person who fulfilled the role of the hatchet man, right?
00:39:05.040Who came in and took over this poison chalice after the prime minister violated the Shawcross Convention.
00:39:11.620And his lawyers did something that would probably, in other circumstances, subject them to professional regulation and discipline.
00:39:18.580Really 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.
00:39:28.080isn't a huge threat to, you know, political activity in Canada.
00:39:31.960But again, if you think that Canada should admire China's basic dictatorship, you don't really see a problem with it.
00:39:38.180But this is the style of hope that you determine in advance what the desired outcome is.
00:39:43.140And when people try to share their views, you determine also in advance whether or not those are part of the acceptable mainstream discourse.
00:39:51.860And if they're not, you just exclude them.
00:39:53.880That's just not how the democratic process is supposed to work.
00:39:56.320And it actually vitiates the constitutional authority of the government to do so.
00:40:00.780Because it rests upon a fulsome conception of democracy.
00:40:06.000Let'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.
00:40:16.660Because I understand that there does have to be some sort of parliamentary committee that looks into its usage, that is mandated, that is regulated.
00:40:23.960Are 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?
00:40:33.220I'm really curious as to whether or not they're just going to allude to evidence that they don't allow us to see.
00:40:40.920Well, there's been the pattern so far.
00:40:42.860I mean, look at the contempt of Parliament.
00:40:45.000And I'm using that in a technical sense.
00:40:47.200There 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.
00:40:56.460And 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?
00:41:10.520At 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.
00:41:22.660These are things that haven't been done since the 19th century, right?
00:41:25.260And 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.
00:41:36.220In 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,
00:41:51.360they are subject to prosecution under the Security of Information Act.
00:41:55.820That is the level of control of information that's typical of this government.
00:41:59.800It's worse than the Harper government.
00:42:01.740So 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.
00:42:13.060By the way, this is another parallel to the War Measures Act, right?
00:42:18.080Because the jurisdictional basis for the invocation of the War Measures Act was not what the FLQ was doing in terms of criminal activity,
00:42:25.440but the apprehended insurrection in a broader sense of student activists and labor union activists to overthrow the government of Robert Barassi, right?
00:42:33.280And it turned out much, much later that there was simply no basis for that at all.
00:42:38.860But the government, of course, could refer to all of these, you know, secret investigations.
00:42:43.740And 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.
00:42:51.300But 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.
00:42:57.840Okay, 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.
00:43:05.380You referenced earlier on that, of course, Emergencies Act is sort of a replacement of the War Measures Act after the controversies emerged of,
00:43:12.480we shouldn't have done this in the first place.
00:43:19.800Many experts saying it's not justified.
00:43:21.960When this is all wrapped up, what do we do?
00:43:25.400We have to decide, fundamentally, as a society, whether or not we believe in constitutional governance.
00:43:32.680We can either conclude that necessity creates the basis of law, and that necessity can be judged by the sovereign.
00:43:40.420And whenever they decide that a state of exception exists, they can nearly override all the laws of the Constitution itself.
00:43:46.220Or we can say that all authority is derived from the Constitution.
00:43:51.040And there's really no daylight between those two positions.
00:43:53.440You don't get to say, well, there's a third position in the middle.
00:43:56.460It's either the government can openly, transparently, and publicly justify why its exercise of power is in accordance with our constitutional text.
00:44:05.960Or we can let them to do end runs because they have frightened us into believing that that's necessary.
00:44:12.040And that necessity is effectively more important than the Constitution itself.
00:44:15.720And so we have to actually make a very hard look and say, which state of affairs will we tolerate?
00:44:21.680And will we tolerate certain risks in order to say that we live in a free and democratic society?
00:44:28.920Ryan, can we and should we get rid of the Emergencies Act?
00:44:33.160When 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.
00:45:07.540There's obviously an argument as to whether or not it's reasonably justifiable in this situation.
00:45:13.080But 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.
00:45:19.500But the problem is people do not have that kind of historical memory.
00:45:23.400They don't remember texts in the streets of Montreal.
00:45:25.640They 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.