![]() In 1866, the year before Confederation, approximately 1000 armed Irish-American revolutionaries crossed the Canada-US border in military formation near Buffalo. ![]() The founding of the Dominion of Canada was in part the response to the armed incursions known as the Fenian Raids. Yet the framers of our constitutional order never intended that public emergencies should grant the government special powers to go beyond what was permitted by the Constitution, even when there was a danger to the state that we can hardly even imagine: the invasion of Canada. Initially, this assertion seems plausible to many people, especially when it is justified as a necessary means of protecting the constitutional order from those who would seek to destroy it. The usual manner this fundamental error is expressed is: “Necessity knows no law,” although it is sometimes expressed as “the welfare of the people is the supreme law,” or more pointedly, “the Constitution is not a suicide pact.” These maxims, none of which have ever been part of our common law or our constitutional tradition, encapsulate the idea that the urgency of a crisis can in itself serve as a source of authority for the actions the government takes to protect the populace. This principle of constitutionalism forecloses an elementary but perilous misunderstanding about public emergencies. ![]() This, we shall see, is the key that unlocks the question of how we should judge whether a public order emergency is justifiable, or if it was a dangerous abuse of power. The Supreme Court reiterated the importance of this principle earlier this year, in which constitutionalism was again recognized as one of the “fundamental organizing precepts of the Constitution” ( R. The Constitution binds all governments… their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source” ( Reference re: Secession of Quebec, 2 SCR 217, para 72). Simply put: “all governmental action must comply with the Constitution…. The most fundamental axiom of our legal order is a principle known as constitutionalism. The most important piece of advice to those attempting to navigate the many twists and turns of the journey to a conclusion on the legitimacy of emergency powers is simple – start with the Constitution of Canada. The person in the street is much more likely to want to know the answer to far simpler questions: What was it all about? Did the government do the right thing? The question that lies at the bottom of this, which should be answered in as plain a manner as possible is this: Was the trucker convoy an emergency that warranted an extraordinary response from government? Was it a public emergency? It is notable that the Order-in-Council that established the Rouleau Inquiry directed it to “examine and report on the circumstances that led to the declaration,” that is, to focus on the so-called “trucker convoy.” But the inquiry itself describes its mandate somewhat differently, beginning instead with its responsibility to “examine and assess the basis for the government’s decision to declare a public order emergency,” a description that brings the limits of governmental discretion to the forefront.ĭoubtless these legal and legislative inquiries will turn on what the public will likely perceive to be tedious technicalities. There has already been considerable skirmishing over what these inquiries should seek to uncover. The inquiries include a Parliamentary Special Joint Committee, several applications filed at the Federal Court of Canada, and – perhaps most importantly – the Public Order Emergency Commission (also known as the Rouleau Inquiry), established as required by the Act itself ( Emergencies Act (R.S.C., 1985, c. It is the subject of multiple inquiries that are attempting to understand why the government invoked the Emergencies Act for the first time. The Public Order Emergency proclaimed by the federal government on February 14, 2022, continues to vex many Canadians.
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