More On: Justin Trudeau
He has also shown a significant hole in Canada's constitutional structure.
Anton Chekhov wrote a letter to A. S. Gruzinsky in 1889 in which he said that "one must never put a loaded rifle on the stage if it isn't going to go off at some point later in the play." He said that "it's wrong to make promises you can never keep." This is true both in art and in life, he said.
People could use the same idea in politics. If a free people don't want the state to use broad enabling laws against them, they should not put them on the statute books in the first place. Once they're there, like Chekhov's gun, they're bound to go off. Emergency actions are supposed to be used only when there is a very bad situation. In practice, they quickly make the term "emergency" seem less important. Once that cheapening has happened, the most dangerous thing in the world is set in stone: a bad rule.
This week, Prime Minister Justin Trudeau fired Chekhov's gun. He called on Canada's Emergencies Act for the first time since it was passed in 1988, which was a long time ago.
The first draft of the Emergencies Act said that a "emergency" was "an urgent and critical situation of a short-term nature that threatens the well-being of Canada as a whole or that is of such size or nature that it is beyond the jurisdiction of a province to deal with." On further thought, this language was taken out because it was too broad, and "urgent," "critical," or "temporary" could be used to describe a wide range of situations that, while serious, did not justify the use of powers as broad as those in the act. When the old language didn't work, the Canadian parliament came up with an either/or threshold, which meant that the act could be used in a situation that "seriously endangers the lives, health, or safety" of Canadians and is of such a large size or nature that it would be too big or too difficult for a province to deal with.
Nothing that has transpired in Canada in the previous 34 years has satisfied either of these criteria. Justin Trudeau has embarrassed himself and his office by deciding that a medium-sized irritant – a group of truckers demonstrating in Ottawa — is bad enough to deviate from the trend (primarily, it seems, since the truckers are his political opponents).
In a 1991 article in the Manitoba Law Journal, Peter Rosenthal cautioned that the Emergencies Act, as it had been enacted, was ripe for misuse. "The Act poses the very real prospect that declarations of emergency may be utilized to repress protests," Rosenthal wrote. In the case of a major city anti-nuclear protest, Rosenthal speculated that a future prime minister "might say that such a demonstration seriously endangered the health of Canadians by threatening the supply of food and medicines, and exceeded the authority of a province because the demonstrations affected trade and commerce and property throughout Canada, not just within a province." Who, other than everyone with sight, could have predicted this?
Naturally, the Canadian government is under no obligation to keep silent when demonstrators block bridges or break other laws. Here, as everywhere, there is a fine line between demonstrating and hindering the rights of others, and the government has the legal ability to intervene when the truckers' protest has crossed that boundary. There is, and has been, such a thing as an unlawful assembly since the colonial period. However, acknowledging that the Canadian government has the power to lift a domestic blockade does not imply that it should do so under the auspices of a piece of emergency legislation that was clearly meant for a quite different purpose. The Canadian Constitution Foundation's Joanna Baron decided last week that the basis for Trudeau's use of the act is "very weak." She is entirely accurate. When one envisions a set of circumstances that "seriously endangers the lives, health, or safety of Canadians" or "seriously threatens the ability of the Government of Canada to preserve Canada's sovereignty, security, and territorial integrity," one envisions 9/11, Pearl Harbor, or a well-organized coup. Whatever excesses we've seen from truckers — and, although they've been mainly peaceful, they're not ideal — don't come close to clearing this standard.
To justify his decision, Trudeau said that he will do "everything is required to reaffirm the ideas, values, and institutions that keep all Canadians free – and that's what we're doing with the Emergencies Act." This is absurd Orwellian gibberish. By "anything," Trudeau refers to his instruction to private banks to freeze Canadian individuals' accounts in the absence of a court order. So, where are the "principles, beliefs, and institutions that keep all Canadians free?" The reflexes that one retains under persistent pressure are referred to as principles. Values are the norms that one strives to live by as a matter of habit. Institutions are built to withstand changes in the environment around them. If, as seems to be the case, Canada's constitutional system is designed with an escape hatch of this size and frivolity, it isn't much of a constitutional order at all.