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The Charter of Rights and Freedoms contains the famous notwithstanding clause. That clause empowers provinces to override otherwise Charter- guaranteed rights. Very recently for example, Doug Ford of Ontario, summoned the notwithstanding clause to “cancel” collective bargaining rights, though he eventually withdrew it. Quebec, as another example, has made invoking the notwithstanding clause one of its favourite jurisdictional hobbies.
If you wish a guide for your thinking on the recently concluded inquiry into the calling of the Emergencies Act, I suggest the following thought.
The Emergencies Act serves much the same purpose as the notwithstanding clause, limiting freedoms that Canadians generally take for granted, but is exclusive to Ottawa. To put a fine point on this, the act (for a period) is something like a dark magician’s spell, putting into a limbo of impotence, restrictions on government power to limit rights that would “not be appropriate in normal times.”
It is, thereby, a terrible weapon of the executive, a drastic and only-to-be-called-upon during the uttermost peril and threat to the Canadian nation as a whole.
The inquiry, just concluded, was to test whether the invocation of this statutory doomsday weapon was justified. The bar against invoking it, because of the power it gives to the state is, very rightly, extremely high, tightly defined, and definitionally clear.
When Doug Ford called upon the notwithstanding clause just a few weeks back various federal ministers and the prime minister sounded ominous warnings and grave cautions that the premier should have reached for a specific and limited deployment of that clause. Which demonstrated they very clearly appreciated the injury to democracy and civil rights involved in even a one-time, narrowly-focused use of its powers.
Did the inquiry demonstrate that Ottawa’s calling upon the far more massive and invasive application of the Emergencies Act — the mother of all notwithstanding clauses was justified? Did it have an equal sense of the gravity of what was involved?
Clearly no. It was established early on during the inquiry that the conditions set out in the statute for the summoning of the Emergencies Act were not met. To stress: the conditions laid out in the act itself, as the absolute determinants of its legitimacy, its legality, were not met.
In other words that high bar, those defined circumstances in which alone any federal government could avail of the most draconian legislation on the Canadian statute books were not met.
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In essence, the inquiry’s mission was fulfilled once it was clear — and all but admitted by government ministers — that the conditions had not been met, that, instead, other conditions than those laid down in the act itself were called upon.
The inquiry very casually walked by this obvious and totally significant point, and went on an entirely irrelevant journey into all sorts of areas — some interesting, some diverting, some strange — but none to the point.
What was the mood in Ottawa during the protest? There is no reference to “mood” in the legislation. Did the finance minister have personal fears and dreadful fantasies of “what could happen” if the protest was not shut down? There is no reference to speculative or ungrounded projections by the finance minister, or any other minister for that matter, in the statutory terms for invoking the act, either.
What about calls from U.S. presidents during Canadian protests? The authors of the Emergencies Act made no provision for telephonic or other pressures from any president or specifically Joe Biden, as a legitimate precursor for the calling up the full power of the Canadian state.
These were just some of the various byways and meanderings that entertained the hearings — as said, all interesting and perhaps diverting, but none to the point; none speaking to the actual conditions laid down in the act itself.
Then we come to the prime ministers’ performance on the final day. Performance is a chosen word here. Much of the media and many of the punditerati must have thought they were at a play. They gave reviews in place of analysis. “Hey, he did pretty good up there.” They were very kind to some strange answers — especially the one about “protests aiming to change or overturn government policy.” What, in the name of Campbell’s soup, are all protests trying for, but to change policy?
But he was not there to ruminate on the nature of protest, or offer his achievement of personal “serenity” after making the fateful decision, or wax on empathetically about “what might have happened” (he shared that fixation with his finance minister.)
He was there to tell whether or not the legal requirements for calling up the — I repeat — most drastic legislation available to the government had been met. He plainly could not say, did not say, and will never be able to say they were.
So reports that he did well, that he showed that the Emergencies Act was “necessary,” even if it was not “legal,” and that, subjectively, being “necessary” eliminated the need for it to be “legal” were pure tosh.
His demeanour on the stand was irrelevant, his personal angst a sidetrack, and his mixed musings on all other subjects, distraction.