At a recent family gathering, a relative approached me to chat about my work fighting Prime Minister Justin Trudeau’s invocation of the Emergencies Act during the convoy protests in February 2022. He was unsure whether invocation was right. He agreed that freezing bank accounts was a frightening response to a political protest. But, he said, the situation was out of control. The honking was outrageous. The streets were blockaded. Something had to be done.
I agreed. Something had to be done. That something was using the existing laws to deal with the criminal and nuisance elements of the protest, while allowing those who were not blockading or honking obnoxiously to continue exercising their rights to protest.
The November conviction of one of the most prominent Freedom Convoy leaders, Pat King, is a reminder that the Criminal Code, provincial laws and a court injunction were more than enough to restore order. There was no need for Trudeau to use the nuclear option, violating the Charter rights to expression, assembly and security against unreasonable search and seizure.
As the Federal Court found in January 2024, there was no “national emergency.” The 1988 Emergencies Act clearly and carefully defines “national emergency” to prevent the kinds of rights abuses that occurred under its predecessor, the War Measures Act, which permitted the internment of Japanese Canadians in the Second World War, and rounding up hundreds of mostly innocent Quebecois during the 1970 October Crisis. The Emergencies Act achieves its purpose in part by defining “national emergency” as an “urgent and critical situation … of such proportions or nature as to exceed the capacity or authority of a province to deal with it … and that cannot be effectively dealt with under any other law of Canada.” The Federal Court agreed with my organization that the definition was not met. The government’s appeal will likely be heard in February.
King’s conviction shows we had effective laws. By Feb. 15, 2022, when the emergency regulations that froze bank accounts without a warrant and outlawed many protests were made, the situation had been dealt with effectively everywhere but Ottawa. Within a few days, those same laws — not the Emergencies Act measures — had ended the criminal and nuisance elements of the situation in Ottawa, too. King, for example, was not convicted last month under the Emergencies Act. Rather, Justice Charles Hackland found him guilty of mischief, counselling mischief, disobeying a court order and counselling others to disobey a court order for his participation and encouragement of gridlock and incessant horn-honking.
The court pointed to a video from Jan. 31, 2022, in which King addressed truckers and encouraged them to honk their horns every 10 minutes, and admitted to moving 80 trucks. These encouragements did not stop after a Feb. 7 court order that clarified the honking must stop and required King to tell his followers that on social media. King did the opposite. “I don’t give a shit anymore,” he said on Feb. 8. “It’s game on, boys. Blow those horns.”
Mischief is defined under the Criminal Code as, among other things, wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property. As Justice Hackland put it: “To state the obvious perhaps, the ongoing honking of air horns and train horns, an activity enthusiastically counselled by Mr. King during his presence with the Freedom Convoy, would have the inevitable effect of interfering with a person’s enjoyment of their property, thereby constituting mischief.”
There was more than enough to convict King under the criminal law. No one’s bank account needed to be frozen. No one’s right to travel to Parliament Hill to express her views needed to be suspended. The carefully chosen words of the Emergencies Act did not need to be ignored. We had the laws to deal with the problematic parts of the protest. We just needed to use them.
National Post
Josh Dehaas is Counsel with the Canadian Constitution Foundation and co-host of the Not Reserving Judgment podcast.