L. Ian MacDonald

February 14, 2022

The Emergencies Act turns out to be Brian Mulroney’s Valentine’s Day gift for Justin Trudeau.

It had never been invoked in all the years since its enactment by Parliament in July of 1988, which is a background story in itself.

The House of Commons was sitting that summer only because the opposition Liberals, under John Turner’s leadership, were filibustering the enabling legislation for the Canada-US Free Trade Agreement in the Senate. As prime minister, Mulroney decided to let the Senate Liberals talk out the FTA bill right up to the drop of an election writ, ensuring it would be the centrepiece of the coming fall campaign.

And, as long as the House was going to be in session, Mulroney decided to give MPs a to-do list fashioned by Don Mazankowski, the deputy prime minister and Conservative House leader. To which Mulroney added one idea of his own—a bill to update the War Measures Act, which gave the government the sweeping, arbitrary and unilateral powers invoked by Pierre Trudeau when he unleashed it during the October Crisis of 1970.

The terrorist Front de libération du Quebec (FLQ) provoked the crisis by kidnapping British Trade Commissioner James Cross in Montreal, and then Quebec cabinet minister Pierre Laporte, whom they murdered, leaving his body in the trunk of a car. Quebec Premier Robert Bourassa asked for the War Measures Act, and the PM invoked it.

In a scrum outside Centre Block, Trudeau was asked how far he was prepared to go. “Just watch me,” he famously replied. And he sent in the Army.

In the ensuing roundup, the police arrested hundreds of the usual suspects—separatists and friends known to be sympathetic to their cause. They were jammed into cells at Quebec Police Force headquarters on Parthenais Street in the East End of Montreal (which, ironically, would become the site of the Cliche Commission hearings into corruption in Quebec’s construction industry in 1974, launching the political career of one of its members, Brian Mulroney).

“None of those people arrested were ever found guilty of anything,” Mulroney recalls today. “Our friend Nick Auf der Maur was just one of them.  All he was doing was hanging out on Crescent Street. In those days, a lot of us were doing that. He ended up in jail.”

What Mulroney introduced in the Emergencies Act was, as he says now, “the concurrence of Parliament,” which was completely absent in the WMA.

“Essentially,” he says, “the goal was to lower the temperature and to make sure that these powers could only be invoked under legislative and judicial review.”

And so it is.

Parliament must be convened within seven days of the Emergencies Act being invoked, and must approve it. It lapses after 30 days and must be renewed. In a minority House, the current Prime Minister Trudeau needs the support of at least one opposition party, which turns out to be the NDP, with the Conservatives somewhat divided between their libertarian and law-and-order propensities.

For its part, the Bloc Québécois opposes it for obvious historical reasons, to say nothing of Quebec Premier François Legault saying he doesn’t support it, either, since the situation in Quebec is clearly under control, even in the Gatineau suburbs and government offices across the Ottawa river from the besieged capital where, for three weeks, truckers have made a mockery of life in the name of freedom.

As for judicial review, the Emergencies Act has no notwithstanding clause to override the Charter of Rights and Freedoms, the provincial opting-out which Trudeau’s father accepted as the price of patriation from Westminster in the Constitution Act of 1982.

If the truckers want to take Pierre Trudeau’s son to court, they’re quite welcome to do so, though they won’t be able to finance a legal challenge with online funding donations from the United States, deemed impermissible by Ottawa.

And if the truckers don’t leave Ottawa, as well as trans-border trade crossings with the US, they’ll have to deal with their own banks freezing their personal and business accounts, losing their insurance and, thus, their drivers’ licences in the process. Chrystia Freeland, the deputy PM and finance minister, made that very clear at Trudeau’s presser. The banks were all on board, she noted adding that “all crowd funding platforms must register.”

And, she added: “We’re following the money. It’s about putting an end to these illegal blockades.”

For his part, Trudeau put it quite elegantly when he concluded that invoking the Emergencies Act was justifiable in helping to move the country beyond the pandemic.

“The way to get through it,” he said pointedly, “is not to shut down our economy, and hurt our neighbours.”

He will have another prime minister to thank for giving him the means to do it. Not, as it happens, his father.

L. Ian MacDonald is editor and publisher of Policy Magazine.