How far is too far?

Much as I oppose the motives and activities of the convoy that has recently laid siege to Ottawa, the use of the Emergencies Act in response to the blockades and occupations may be a case of leaping out of the frying pan into the fire.

I have followed events closely as they have unfolded, read what analysts and pundits have had to say, thought and talked with my partner and friends for hours, and I am not done pondering what we can learn from all of this.

Part one: the convoy

Let’s start by looking at the convoy itself. There’s lots not to like. As I wrote here last week, its real agenda lacks authenticity. People have been attracted by a simplistic rhetoric that speaks to an understandable frustration with the way we have had to live for the past two years, while also hiding the true racist, misogynist and homophobic ideology of the convoy’s leadership.

I’m a feminist, and the distinctly macho and at times misogynist tone to the demonstrations deeply offend me; in particular, the rallying cry of “my body, my choice” emanating from the lips of white men I am pretty sure have never stood by my side in the fight for reproductive choice and access to abortion.

I’m also a long-time activist and, over the past four decades, have been involved in many demonstrations, occupations, blockades and other forms of non-violent dissent. The behaviour of the Ottawa occupiers is an insult to the long and honourable history of civil dissent. It’s often loud and inconvenient when citizens take to the streets (or rail lines or government/corporate buildings) to call for change — that’s kind of the point of it — but real dissent does not include defecating on people’s lawns or assaulting those who are wearing masks as they go about their daily lives.

In other words, while I have a certain amount of sympathy for the frustrations that have driven some to join the convoy in Ottawa, I have none for the leadership of the occupation or for many of the tactics that have been used.

That said, I think it’s wrong to use the Ottawa situation as proof that public forms of dissent are bad and need to be tightly regulated. Non-violent direct action, even if it annoys or inconveniences those who are not part or it or who don’t agree with the activists’ position, is an important part of a true democracy.

Part two: the initial response

This brings us to the steps taken to control the situation. My experience when I have been part of demonstrations that have taken over city streets, blocked transportation routes or occupied buildings has been very different from that of the convoy participants. We have never been given the time and space to build saunas, set up pig roasts, build a sound stage or blow up bouncy castles.

What I’m used to is being hauled off by the authorities within a few minutes – or, at most, a couple of hours – of putting my tush on the ground or linking arms with my companions.

This is certainly not what we saw in the first three weeks of the Ottawa occupation. The situation became increasingly entrenched and more difficult to remove with each passing day; those who lived or worked in the area most affected had their daily lives severely affected; small, local businesses were forced to close because demonstrators entered their spaces unmasked and demanded service.

This initial lack of action by the authorities bears close examination. As Indigenous journalist and author Tanya Talaga recently wrote:

“[T]here’s a bigger issue at play – one that requires a bigger conversation about the nature of power and justice in Canada. After all, when was the last time you saw the mayor of Ottawa, the premier of Ontario and the prime minister of Canada all appear absolutely powerless against sustained protest? . . . Police forces may be under-resourced, but what happened to the law enforcement that was supposed to exist? The way in which “protesters” have been allowed to occupy cities and disrupt borders reveals a profound double standard. If these were Black Lives Matter or Idle No More gatherings, police would have shut them down in a matter of hours, not weeks.”

Part three: invoking power

Obviously, something needed to happen. But did it need to be the Emergencies Act?

The Act, passed in 1988 to replace the somewhat more draconian War Measures Act, has never been used before. In order for the federal government to invoke this legislation, a national emergency must exist. What makes a national emergency is set out in some detail in the legislation. Once invoked, the Act allows the government to make temporary orders and regulations to prohibit blockades, control public assemblies, limit the use of specified property, and impose fines and imprisonment on those who do not follow the orders. The Act also gives the government the power to freeze people’s bank accounts and seize their property.

Importantly, the Act can only be invoked if the situation “cannot be effectively dealt with under any other law of Canada.” I’m not convinced this test has been met.

The Criminal Code includes many offences with which convoy participants could have been charged without invoking the Emergencies Act: mischief, rioting, conspiracy, counselling others to commit a crime, intimidating parliament or legislatures, sedition, unlawful assembly, and more. Indeed, some of these are the charges the arrestees are now facing.

And yet, not a single charge was laid in those first days and weeks of the blockade and occupation. Even when the police finally sprang into action, the demonstrators were treated with kid gloves. At least three written warnings telling people it was time to go home were distributed before any arrests were made. Only 103 people were charged, and most of those were released almost immediately. Compare that to the approximately 1,200 people arrested, detained and charged during Toronto’s G-20, many of whose charges were later dropped or dismissed.

Don’t get me wrong. I am very glad to see the streets of Ottawa cleared of these faux freedom fighters. They should have been cleared much sooner than they were.

Maybe it’s time for more creativity. When convoys of anti-vaxxers, inspired by what was happening in Canada, descended on New Zealand’s parliament building, authorities used music to drive them away. On the 15-minute play list loop? Barry Manilow’s hits Mandy and Could it be Magic and the dance tune the Macarena.

The Emergencies Act was not needed to resolve the situation in Ottawa, and invoking it once makes invoking it again easier. As the Canadian Civil Liberties Association, an organization whose positions I often don’t agree with, said:

“Governments regularly deal with difficult situations, and do so using powers granted to them by democratically elected representatives. Emergency legislation should not be normalized. It threatens our democracy and our civil liberties.”

As the warning letters said, it was time to go home. In the words of singer-songwriter Bill Morrissey:

“When it’s time to go home/It’s time to go home . . ./In a world that’s just gone wrong/It’s time to go home.”

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