I suspect the answer is political will. Ontario govt saw the Ottawa occupation as a federal problem. Their approach to Windsor and the Ambassador bridge was more direct.
There is far too much black and white thinking about this problem, by people who do not understand the way in which legislative language is used, and the way in which legal authority is exercised and then later reviewed. And it is not that hard.
The trigger for invoking this largely facilitative legislation, is that the Cabinet must have “reasonable grounds to believe” that there is an “emergency”, as that term is rather ambiguously described in the statute.
I say ambiguously because not only is the language itself elastic, but it also envisages that the decision maker (the Cabinet) will have to draw inferences and or make predictions about what might happen or is likely to happen (which, by the way, are two different levels of probability).
It is an exercise in Cabinet judgement and prediction, based upon what will inevitably be imperfectly understood and dynamic events, reported to them by others: what they are told, including opinions and predictions and worries.
Moreover, the law is certainly elastic enough to encompass the precautionary principle, which is a part of lots of public protection legislation (like health & safety laws), and which enjoins the decision maker to err on the side of caution and to take steps to avoid potential (i.e. not certain, but only foreseeable) harm.
From that perspective the test is simple: the Cabinet must have reasonable grounds to believe that the conditions described in the statute exist. It need not be satisfied of that beyond a reasonable doubt, nor make any finding “more probably than not” (the criminal and civil burdens of proof.) It just needs a reasonable basis for action,
Thus, in my view, Cabinet may invoke the legislation, even if, upon later investigation, or upon further reflection, it turns out to have been wrong.
Furthermore, and along the way, and prior to decision, the statute envisages levels of political examination, consultation, input and discussion by various political bodies and there is a built-in mechanism for later re-evaluation; so the structure of the law itself recognizes the uncertainty of the exercise and the possibility of error or over-reach. That is why there is a mandatory review and quest for “lessons learned”. It is a political exercise subject to quasi-judicial review.
Finally, the legislation is largely facilitative and precautionary. It empowers other bodies – primarily provincial ones – to do things. It does not command any particular action. Which, to repeat, underlines its prophylactic purpose: to prevent harm. Just like health and safety legislation.
There is nothing odd about any of this. The law is full of such evidentiary thresholds for taking actions that affect rights of others; and they are defined in different ways, requiring different levels of evidentiary justification.
Take criminal law. In order to be arrest X, a police officer must have reasonable ground to believe that X committed a crime. The cop doesn’t have to “prove it” beyond a reasonable doubt. He just has to have a reasonable basis for action.
The proof of the crime comes later; or not; and the officer will have acted properly, even if, for some reason, the criminal charge is later dismissed, because what was suspected, or reasonably appeared to be the case, has not been “proved” beyond a reasonable doubt. While, by the same token a civil action involving the same incident can succeed because the civil standard of proof is lower. (Remember OJ?)
This kind of thing is very common in the legal world, where there are alternative reasonable readings of the evidence or of a legal instrument, or how it applies in a particular set of facts. And where the facts are murky and subject to interpretation.
Moreover, it is not unusual for a reviewing court to let the decision maker’s determination stand, even if the Judge doesn’t agree with it, because a decision can be reasonable, even if it seems wrong in someone else’s eyes. Thus, for example, a jury’s verdict will be left to stand, even if it seems wonky, so long as it was a reasonable possibility and not demonstrably perverse.
I suspect that in the instant case, the Cabinet decision will meet the test of reasonableness. Particularly where, as here, the challenger’s claim is itself so speculative: namely that the problem in Ottawa would have resolved itself, within a reasonable period of time, despite the evident police paralysis up to that point.
The invocation of the Act and the challenge are both based upon speculation and imperfect evidence. Compare what the Judge was told and the manner in which he heard it, to the way in which the Cabinet was obliged to decide things. And there is the injection of "national security" into what is mostly group criminality and public nuisance - damaging to citizens and perhaps institutions, but not to national security as conceived in CSIS legislation looking at foreign influence rather than, say, the home-grown mafia or a motorcycle gang, where something like RICO is more appropriate.
My guess is that the Judge will conclude that the Cabinet decision was proper and reasonable and even effective in facilitating the resolution of the problem in Ottawa, even though, upon reflecting the strict terms of the statute were not met – in part because the law needs further consideration, in light of lessons learned.
The one that interests me is this notion that the police can enforce the law - including a Court injunction – OR NOT, at their sole discretion, and that no one (no judge and no politician) can tell them how or when to do it.
That is to say, that the police are a law unto themselves. Because that is an interesting proposition, in a context where the police may be more concerned that a protest be peaceful, than that it be lawful; and where there is no effective legal remedy for citizens who are adversely affected by the illegal behaviour.
Or put a little differently: there should be a better way of engaging, galvanizing and perhaps enhancing, police enforcement powers, without all of the “national security baggage” that is associated with invoking the Emergencies Act – with its specter of spies, and saboteurs, and insurrectionists. It was a pretty oblique way of saying “hey you…do your jobs!” or “this has got to stop!”.
And among the things one might look at, is the proposition (derived from the Ipperwash events in 1995 where a protester was killed), that the police have the exclusive discretion to determine when, whether, and how to “enforce the law”; and that there is no directive role for public officials, or politicians, or even for Judges, who routinely issue injunctions, only to see the police ignore them.
But what if there is police irresolution, incapacity, or dysfunction as there was in Ottawa (although, not elsewhere)? What happens to the “rule of law”?
Accordingly, if the Emergencies Act is not an appropriate tool to deal with protest activity, (which I think it isn’t) then what legal framework would better regulate such protests, so as to deter and quickly terminate, the illegal behaviour that is sometimes associated with them? Especially when provocation, public disturbance, calculated illegality, or imposing economic damage may be part of the political strategy of at least some of the protesters.
Finally, should there be a simple and effective compensatory remedy for citizens who are discomfited by such unlawful tactics, or must they simply suck it up?
Indeed, can any group with a grievance, just shut down a major communications or economic artery, or occupy a neighbourhood, comfortable in the knowledge that they can do so with relative impunity? Again: where is the “rule of law”?
Which I think is the real question, not “national security” or a “national emergency” or untangling the ambit of the emergencies legislation. Because a lot of blame can be laid at the feet of RCMP and Ottawa Police leadership, as shown by the different behaviour of the OPP and the Toronto and Windsor Police.
The EA was necessary for two reasons, I think, neither of which were anticipated by the parliamentarians of 1989:
1. Canada needed a high profile show of force to convince American business that the border blockades were OVER! and would not be allowed to restart again
2. The banking threat - to freeze accounts, confiscate vehicles, etc - chilled the "hot-tub rock concert" party atmosphere; it intimidated not only the Ottawa truckers themselves, but also anybody across the country who had supported them. The mood changed overnight.
I suspect the answer is political will. Ontario govt saw the Ottawa occupation as a federal problem. Their approach to Windsor and the Ambassador bridge was more direct.
There is far too much black and white thinking about this problem, by people who do not understand the way in which legislative language is used, and the way in which legal authority is exercised and then later reviewed. And it is not that hard.
The trigger for invoking this largely facilitative legislation, is that the Cabinet must have “reasonable grounds to believe” that there is an “emergency”, as that term is rather ambiguously described in the statute.
I say ambiguously because not only is the language itself elastic, but it also envisages that the decision maker (the Cabinet) will have to draw inferences and or make predictions about what might happen or is likely to happen (which, by the way, are two different levels of probability).
It is an exercise in Cabinet judgement and prediction, based upon what will inevitably be imperfectly understood and dynamic events, reported to them by others: what they are told, including opinions and predictions and worries.
Moreover, the law is certainly elastic enough to encompass the precautionary principle, which is a part of lots of public protection legislation (like health & safety laws), and which enjoins the decision maker to err on the side of caution and to take steps to avoid potential (i.e. not certain, but only foreseeable) harm.
From that perspective the test is simple: the Cabinet must have reasonable grounds to believe that the conditions described in the statute exist. It need not be satisfied of that beyond a reasonable doubt, nor make any finding “more probably than not” (the criminal and civil burdens of proof.) It just needs a reasonable basis for action,
Thus, in my view, Cabinet may invoke the legislation, even if, upon later investigation, or upon further reflection, it turns out to have been wrong.
Furthermore, and along the way, and prior to decision, the statute envisages levels of political examination, consultation, input and discussion by various political bodies and there is a built-in mechanism for later re-evaluation; so the structure of the law itself recognizes the uncertainty of the exercise and the possibility of error or over-reach. That is why there is a mandatory review and quest for “lessons learned”. It is a political exercise subject to quasi-judicial review.
Finally, the legislation is largely facilitative and precautionary. It empowers other bodies – primarily provincial ones – to do things. It does not command any particular action. Which, to repeat, underlines its prophylactic purpose: to prevent harm. Just like health and safety legislation.
There is nothing odd about any of this. The law is full of such evidentiary thresholds for taking actions that affect rights of others; and they are defined in different ways, requiring different levels of evidentiary justification.
Take criminal law. In order to be arrest X, a police officer must have reasonable ground to believe that X committed a crime. The cop doesn’t have to “prove it” beyond a reasonable doubt. He just has to have a reasonable basis for action.
The proof of the crime comes later; or not; and the officer will have acted properly, even if, for some reason, the criminal charge is later dismissed, because what was suspected, or reasonably appeared to be the case, has not been “proved” beyond a reasonable doubt. While, by the same token a civil action involving the same incident can succeed because the civil standard of proof is lower. (Remember OJ?)
This kind of thing is very common in the legal world, where there are alternative reasonable readings of the evidence or of a legal instrument, or how it applies in a particular set of facts. And where the facts are murky and subject to interpretation.
Moreover, it is not unusual for a reviewing court to let the decision maker’s determination stand, even if the Judge doesn’t agree with it, because a decision can be reasonable, even if it seems wrong in someone else’s eyes. Thus, for example, a jury’s verdict will be left to stand, even if it seems wonky, so long as it was a reasonable possibility and not demonstrably perverse.
I suspect that in the instant case, the Cabinet decision will meet the test of reasonableness. Particularly where, as here, the challenger’s claim is itself so speculative: namely that the problem in Ottawa would have resolved itself, within a reasonable period of time, despite the evident police paralysis up to that point.
The invocation of the Act and the challenge are both based upon speculation and imperfect evidence. Compare what the Judge was told and the manner in which he heard it, to the way in which the Cabinet was obliged to decide things. And there is the injection of "national security" into what is mostly group criminality and public nuisance - damaging to citizens and perhaps institutions, but not to national security as conceived in CSIS legislation looking at foreign influence rather than, say, the home-grown mafia or a motorcycle gang, where something like RICO is more appropriate.
My guess is that the Judge will conclude that the Cabinet decision was proper and reasonable and even effective in facilitating the resolution of the problem in Ottawa, even though, upon reflecting the strict terms of the statute were not met – in part because the law needs further consideration, in light of lessons learned.
The one that interests me is this notion that the police can enforce the law - including a Court injunction – OR NOT, at their sole discretion, and that no one (no judge and no politician) can tell them how or when to do it.
That is to say, that the police are a law unto themselves. Because that is an interesting proposition, in a context where the police may be more concerned that a protest be peaceful, than that it be lawful; and where there is no effective legal remedy for citizens who are adversely affected by the illegal behaviour.
Thanks for your thoughtful analysis of this national event that affected all of us!
Or put a little differently: there should be a better way of engaging, galvanizing and perhaps enhancing, police enforcement powers, without all of the “national security baggage” that is associated with invoking the Emergencies Act – with its specter of spies, and saboteurs, and insurrectionists. It was a pretty oblique way of saying “hey you…do your jobs!” or “this has got to stop!”.
And among the things one might look at, is the proposition (derived from the Ipperwash events in 1995 where a protester was killed), that the police have the exclusive discretion to determine when, whether, and how to “enforce the law”; and that there is no directive role for public officials, or politicians, or even for Judges, who routinely issue injunctions, only to see the police ignore them.
But what if there is police irresolution, incapacity, or dysfunction as there was in Ottawa (although, not elsewhere)? What happens to the “rule of law”?
Accordingly, if the Emergencies Act is not an appropriate tool to deal with protest activity, (which I think it isn’t) then what legal framework would better regulate such protests, so as to deter and quickly terminate, the illegal behaviour that is sometimes associated with them? Especially when provocation, public disturbance, calculated illegality, or imposing economic damage may be part of the political strategy of at least some of the protesters.
Finally, should there be a simple and effective compensatory remedy for citizens who are discomfited by such unlawful tactics, or must they simply suck it up?
Indeed, can any group with a grievance, just shut down a major communications or economic artery, or occupy a neighbourhood, comfortable in the knowledge that they can do so with relative impunity? Again: where is the “rule of law”?
Which I think is the real question, not “national security” or a “national emergency” or untangling the ambit of the emergencies legislation. Because a lot of blame can be laid at the feet of RCMP and Ottawa Police leadership, as shown by the different behaviour of the OPP and the Toronto and Windsor Police.
The EA was necessary for two reasons, I think, neither of which were anticipated by the parliamentarians of 1989:
1. Canada needed a high profile show of force to convince American business that the border blockades were OVER! and would not be allowed to restart again
2. The banking threat - to freeze accounts, confiscate vehicles, etc - chilled the "hot-tub rock concert" party atmosphere; it intimidated not only the Ottawa truckers themselves, but also anybody across the country who had supported them. The mood changed overnight.
What did the Province of Ontario lack to lift the occupation in Ottawa? Capacity or authority?