Special Temporary Measures

Before the war in eastern Europe came to dominate the world’s attention, a small protest movement in Canada was capturing international headlines. After a few weeks, the federal government’s decision to implement emergency legislation — to deal with demonstrations against vaccines and other pandemic-related mandates — made the story even more captivating. And because the statute had never been used, many people both here and abroad were learning about this country’s troubled history with emergency powers.

The decision to invoke the Emergencies Act was certainly contentious. The law had been passed in 1988 to replace the War Measures Act, which many Canadians considered over-broad and prone to abuse. That revoked legislation had been called upon twice in peacetime, and historians largely agree that it was unnecessary in both cases — and that it led to widespread violations of rights. How might future scholars reflect upon Parliament’s decision to endorse the use of peacetime emergency powers again — for just the third time?

Canadians may be more tolerant of government overreach in moments of perceived crisis than citizens in many other Western countries. Indeed, Canada has a long record of taking extraordinary steps to deal with civil unrest or other perceived threats — from the Rebellions of 1837–38 to the various anti-Communist measures of the twentieth century. The historian Murray Greenwood once observed a “Canadian tendency to indulge in drastic security legislation in times of crisis, real or apprehended, without much concern for civil liberties.” And the political scientist David E. Smith noted that Parliament passed the War Measures Act, in 1914, “with no question as to its need and a single query as to its provisions. Only one member of Parliament, William Pugsley, a Liberal, appears to have noticed the unprecedented implications of the bill which he feared could be used to deny Canadians their right to habeas corpus.”

Pugsley’s fears proved true when the law was used in 1946, after a Russian defector revealed the existence of a spy ring that was operating out of the Soviet embassy. Lacking sufficient evidence to convict anyone, William Lyon Mackenzie King resorted to using residual wartime powers to detain and interrogate more than a dozen suspected spies. Something similar happened in 1970, when Pierre Trudeau’s government invoked the same statute to arrest hundreds of people suspected of collaborating with the terrorists who had kidnapped a British diplomat and a Quebec cabinet minister. In both cases, the primary purpose of the move was the same: to suspend due process of law. The police detained people ­without warrants, held them incommunicado, and interrogated them for days or weeks.

Few historians would disagree that the powers granted to authorities in 1946 and 1970 vastly exceeded the actual threats. The supposed Soviet spies, for example, were mainly members of left-leaning reading groups, who had no real secrets to share with Moscow. The few who were convicted, including the member of Parliament Fred Rose, could have been prosecuted without resorting to emergency legislation, which proved similarly unnecessary in locating and later convicting the FLQ kidnappers.

To be sure, employing the War Measures Act in peacetime proved politically effective — and popular — both times. As the political scientist Reg Whitaker wrote about the espionage affair, “public opinion (by and large) approved the actions taken. Important sections of elite opinion, especially within the legal community, seemed unperturbed.” Similarly, the historian J. L. Granatstein recounted his experience when trying to speak at a rally against the ­imposition of emergency powers in 1970: “I have never before or since been afraid of a crowd, never feared being torn limb from limb, but that day I was frightened. The shouts from the ­students that interrupted my speech were ­frequent and hostile.”

But the judgment of history has been far harsher than the unperturbed experts or hostile students of yesteryear. “In retrospect,” Whitaker said of 1946, “critics have described the treatment of the suspects as abusive of their rights and as a serious violation of liberal democratic norms.” The biographer Richard Gwyn argued that Trudeau’s actions “smeared irredeemably his reputation as a champion of civil liberties.”

In 1990, during the Oka Crisis, when the military and police were engaged in an armed conflict against an Indigenous resistance movement near Montreal, the federal government did not invoke emergency powers. Yet this February, it argued they were necessary in order to freeze bank accounts that were funding the protesters, a move that some have characterized as the suspension of financial habeas corpus. The act also permitted the police to arrest or fine protesters who disregarded their orders to move on and allowed for towing companies to be forced to remove vehicles from protest sites.

Yet the federal Emergency Management Act, passed in 2007, as well as Ontario’s Emergency Management and Civil Protection Act, already gave authorities numerous tools. Governments could have restricted gatherings, imposed fines, removed property, requisitioned resources, compelled companies to provide a service, and much more. Besides, Ontario had declared a provincial emergency, under which the police could impose massive fines, confiscate vehicles, and arrest protesters. So it seems that the ­primary benefit, if any, to invoking the Emergencies Act was political: strong measures imply strong leadership, especially during a crisis.

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Given the Russian invasion of Ukraine, the events of February 2022 already seem part of the distant past. But historians have long memories, and they will likely be unsympathetic to the federal government’s actions. The Emergencies Act was invoked for barely nine days. The Canadian Civil Liberties Association, among the country’s leading critics of similar decisions in 1970, characterized its use against the Ottawa occupation as “unnecessary, unjustifiable and unconstitutional.” Indeed, protesters at the Ambassador Bridge, in Windsor, and at the Coutts border crossing, in Alberta, had already been dispersed using existing laws.

Historians have been reluctant to endorse the use of emergency powers against a Soviet spy ring that sought classified information about atomic bombs. The kidnapping of a provincial cabinet minister and a British diplomat by a domestic terrorist organization that was responsible for a wave of bombings did not bring their support for such measures either. It seems unlikely that, in the future, they will be any less contemptuous of the use of emergency powers to break up a group of rowdy truckers in downtown Ottawa.