Justin Trudeau Has Disgraced His Office

I n a famous 1889 letter to A. S. Gruzinsky, the playwright Anton Chekhov proposed that “one must never place a loaded rifle on the stage if it isn’t going to go off” at some point later in the play. In art, as in life, Chekhov explained, “it’s wrong to make promises you don’t mean to keep.”

One might apply the same principle to politics. If a free people does not wish to have sweeping enabling laws used against it by the state, it must decline to place such laws on the statute books in the first place — for, like Chekhov’s gun, once there they are bound ineluctably to go off. In theory, emergency acts are reserved only for the most grievous of crises. In practice, they tend swiftly to cheapen the prior definition of “emergency.” And once that cheapening has occurred, that most dangerous of things is set in stone: a bad precedent.

This week, Prime Minister Justin Trudeau fired Chekhov’s gun, invoking Canada’s Emergencies Act for the first time since it was passed in 1988.

The first draft of the Emergencies Act defined an “emergency” as “an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it.” Upon further consideration, this language was removed, on the grounds that it was too broad, and that “urgent,” “critical,” or “temporary” could be applied to a whole host of situations that, while serious, did not provide sufficient reason for the invocation of powers as sweeping as those contained in the act. In the old language’s place, the Canadian parliament established an either/or threshold, by which the act could be used in such a situation as “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it” or such a situation as “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada.”

At no point in the last 34 years has anything that happened in Canada met either of these standards. By declaring that a medium-sized irritation — a group of truckers protesting in Ottawa — is severe enough to buck the trend (mostly, it seems, because the truckers happen to be his political enemies), Justin Trudeau has disgraced himself and his office.

Criticizing the Emergencies Act in 1991, Peter Rosenthal warned in the Manitoba Law Journal that the law as it had been passed was ripe for abuse. “The Act,” Rosenthal wrote, “creates the very real possibility that declarations of emergencies will be used to suppress demonstrations.” Imagining an anti-nuclear protest that caused disruptions in a major city, Rosenthal suggested 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 since the demonstrations affected trade and commerce and property throughout Canada, not just within a province.” Who, other than everyone with eyes, could have seen this coming?

Naturally, the Canadian government is not obliged to remain idle while protesters block bridges or violate other laws. Here, as elsewhere, there is a bright line between protesting and impeding the rights of others, and, insofar as the truckers’ protest has veered over that line, the government has the legal authority to respond. There is, and has been since the colonial era, such a thing as an illegal assembly. But to acknowledge that the Canadian government has a right to clear a domestic blockade is by no means to suggest that it should do so under the auspices of a piece of emergency legislation that was quite obviously intended for a much different purpose. This week, Joanna Baron, of the Canadian Constitution Foundation, concluded that the pretext for Trudeau’s invocation of the act is “extremely thin.” She is correct. When one imagines a set of circumstances that “seriously endangers the lives, health or safety of Canadians” or that “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada,” one imagines a 9/11 or a Pearl Harbor or a well-organized coup. Whatever excesses we may have seen from the truckers — and, while they have been mostly peaceful, they have not been perfect — do not come close to clearing this bar.

Justifying his move, Trudeau told the world that he intended to do “whatever is necessary to reinforce the principles, values, and institutions that keep all Canadians free – and that’s what we’re doing with the Emergencies Act.” This is Orwellian nonsense. By “whatever,” Trudeau means his having instructed private banks that they must freeze the accounts of Canadian citizens without a court order. As for the “principles, values, and institutions that keep all Canadians free” . . . well, where are they? Principles are the reflexes one maintains under sustained pressure. Values are the rules by which one seeks to live as a matter of habit. Institutions are designed to stand strong as the world changes around them. If, as seems to be the case, Canada’s constitutional order has an escape hatch of this size and frivolity built into it, then it isn’t much of a constitutional order at all.