Justin Trudeau's emergency law not the same as the one his father invoked in 1970s



MONTREAL — The similarities between Prime Minister Justin Trudeau's decision to invoke the Emergencies Act on Monday and his father's use of a previous emergency law more than 50 years ago wasn't lost on Quebec Premier François Legault.

"Of course I thought about that, what happened with the father in 1970," Legault told reporters this week.

Then-prime minister Pierre Trudeau invoked the War Measures Act on Oct. 16, 1970, at the request of premier Robert Bourassa and Montreal mayor Jean Drapeau, after British diplomat James Cross and Quebec deputy premier Pierre Laporte were abducted by the Front de libération du Québec, a militant group that wasn't shy about using violence to establish a Quebec state.

In 2020, Legault called on Justin Trudeau to apologize for the measures his father took by deploying the military in the province and arresting hundreds of Quebecers.

On Monday, Justin Trudeau said his government needed the Emergencies Act's extraordinary powers to end blockades that are threatening Canada's supply chains, economic security and trading relationships. It was the first time the law has been used since it replaced the War Measures Act in 1988.

While a prime minister named Trudeau using emergency powers may bring back memories of the October Crisis, experts say the Emergencies Act and the War Measures Act are separate laws used in different contexts.

The use of the War Measures Act led to the arrest of nearly 500 people — the vast majority were never charged with any crime — and to thousands of warrantless searches in Quebec

Daniel Béland, director of the McGill Institute for the Study of Canada, said that period of history is "still perceived as a wound, as a source of collective trauma. Most Quebecers find that all these arrests and searches were abuses of power."

The Emergencies Act grants the federal government temporary powers, including the right to prohibit certain public assemblies such as blockades, the ability to prohibit the use of money to support the blockades, and the ability to impose fines or imprisonment for contravening any of the measures declared under the public order emergency.

The act, however, doesn't give the government sweeping powers in the same way the War Measures Act did, Béland said, adding that Canada's Charter of Rights and Freedoms didn't exist in 1970. The Charter still applies to actions taken under the new emergency law, he explained.

"What we have here is a different constitutional and legal framework than we had in 1970," Béland said.

There's another big difference, he added.

"The military, at least so far, is not involved in what Trudeau is doing now. It was front and centre in October 1970 in Quebec."

Patrick Taillon, a law professor at Université Laval, said that while the Emergencies Act has more checks and balances than the War Measures Act, it still gives the government broad powers. Parliament must approve the use of the Emergencies Act within seven days, which will require a debate in the House of Commons, and the law requires that provinces be consulted before it is used, he said.

Taillon said it's not clear that the bar for invoking the Emergencies Act has been met. That law, he said, can be invoked when provinces are unable to solve an emergency and the normal laws of the country are insufficient to address the problem.

And while Trudeau's decision to use the emergencies law will open him up to political criticism, the courts will likely side with the government because they have generally ruled that it's up to politicians to decide what constitutes an emergency, Taillon added.

Ian McKay, chair of the L.R. Wilson Institute for Canadian History at McMaster University, said Canada has never really grappled with the legacy of the War Measures Act and he worries about the use of the Emergencies Act.

The use of the War Measures Act was supported by most Canadians, McKay said. After it was lifted, he added, the RCMP continued to target Quebec nationalists, burning down a barn, engaging in illegal wiretaps and committing other civil liberties violations.

"I think there's a strong tendency in Canada to allow the state to do this sort of thing and never fully account for it," McKay said. "And then, maybe, after a half-century, we issue some formal apologies."

"There's a real reluctance in Canada to face this history of the state acting in an exceptional situation."

This report by The Canadian Press was first published Feb. 15, 2022.

———

This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.

Jacob Serebrin, The Canadian Press