Excellent comments, and speaks to the need for some serious guidance fm SCC re application of Vavilov to higher level public policy decisions (including sigificant GiC & LGiC orders). This analysis, coupled with FCC analysis in the plastics case, seem to indicate that this court at least, is moving toward equating reasonableness with correctness, contra Vavilov.
You say, "I suppose we’re expected to believe it was mere coincidence that blockade participants did not end their siege until the EA was invoked", but just because the protests ended after the law was invoked doesn't mean there is any causal link between those two events. As far as I understand the Ottawa protesters were cleared by a police operation that was organized by the OPS, not the federal government. It's hard to see why the EA was needed to carry out that operation.
I think given how things played out, it's difficult not to believe that both the police and many of the protesters were spurred by the EA declaration (or in the case of places like Coutts, spurred by the stated intent of the government to invoke). Protesters clearly backed down when they realized there were additional consequences to continuing. The OPS operation went ahead as soon as tow trucks became available, and even the judge here acknowledges the inability to get tow trucks was a capacity issue.
That said, whether the decision to invoke the EA was reasonable does not even depend on whether the EA subsequently proved *directly* responsible for clearing the protests in this sense - all it needs to have done is supplement existing resources, i.e. had some impact, and I think that much is clear.
I find it unreasonable to assume the counterfactual absent the EA was the exact same result. There was a very real threat that similar efforts by police could have turned horribly violent. The additional measures by the EA very likely reduced protesters' resolve.
Well your arguments are no more sound than what you accuse the Judge of making. Do you truly believe this mess couldn't have been solved without the EA or that there were no more actions that could have been taken by police in Ontario with RCMP help? Do your rights mean so little? It feels as false as Chrystia Freeland's "economic threat" speech.
Um.. er.. well the actions that were taken. https://whyy.org/articles/canada-police-quickly-push-back-covid-protesters/ Can anyone tell me why this government did nothing to ameliorate the situation like they did with the railway blockades? Could they not have said "if you leave Ottawa this weekend, we will hold a free vote on the Vaccine border issue and you can deal with your local MP if you don't like how she voted"?
There is zero evidence that such an offer would have ameliorated the situation. The occupation organizers were quite clear that only the cancellation of all vaccine mandates across the country, if not the replacement of the government with organizers themselves, would be a sufficient condition for their voluntary departure.
The EA was used to declare a zone of illegality for continued protest. That obviously contributed to some of the more casual occupation participants departing the scene before the crackdown. As long as the lawless hardcore participants were able to shield themselves within a crowd of softer supporters, a crackdown without widespread violence would have been surely more difficult without the EA even if it was somehow possible.
Stefan, you are absolutely correct that there is zero evidence such an offer would have worked. Of course, there is the same amount of evidence that it wouldn't have. And what would have been the downside of the government acknowledging that some Canadians were unhappy and by making a reasonable offer to have the issue decided by the democratically elected body of parliament rather than a diktat by the PMO. Instead, the government refused any communication with the protesters and issued insults and slights in the media.
Rouleau prefaced his conclusions by saying: “I did not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming and I acknowledge there is significant strength to the argument against reaching it,”
...and the significant strength of the argument against Rouleau's "reluctant decision" is what we heard expressed today.
Loosely interpreted, Rouleau's decision essentially granted any majority party to waive aside the Constitution whenever they feel threatened, as long as they truly BELIEVE they are being threatened.
It set a ridiculous and dangerous precedent. I am far more happy to live in a country governed by "the rule of law" as carefully expressed by Justice Richard Moseley.
The problem with your argument is that Rouleau's approach, as you're describing it and are lamenting, is literally the reasonableness standard that Justice Mosley was explicitly supposed to be following! Rule of law indeed!
Freezing bank accounts without recourse. The Emergencies Act requires a situation 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.” Neither occurred. Both Coutts and Windsor were resolved prior to the EA. There was little to no violence and the police handled the matter. The act also says the act can only be used if there is no existing law that can deal with the situation. I'm sure our neighbor to the south and the business lobby put pressure on the government to resolve the matter but instead of letting this government off the hook completely, we should make sure that this Act is not implemented without meeting the terms of the Act.
It is not a ridiculous precedent. There are many ways to measure whether a government is being sincere or honest in its claims, so there are an infinite number of circumstances where the government could be accused of bad-faith application, and punished accordingly. The evidence in this circumstance happens to be favourable to the government's intentions.
Despite the fact that he is not a lawyer, I have always had respect for Mr. Macfarlane’s views on legal matters as expressed through his academic work, and still do. Unfortunately, in this article, freed from the constraints of peer review, he presents a breathless polemic that reads as much like the first draft of a column for an Ottawa community newspaper as it does a reasoned response to Justice Mosley’s judgment in this matter. It might have been better for all concerned had Mr. Macfarlane reflected somewhat longer, rather than proceeding to give a hot take on such a substantive court decision.
I'd appreciate the criticism of a post that is, admittedly, quite punchy, if perhaps it included any meaningful responses to the several substantive critiques within. It may be "a substantive court decision", but I think my post points to multiple ways in which it is a flawed one, and I'm not sure the lack of peer review or that you think it's a "hot take" is much of a rebuttal.
The protest convoy was initially all about the government imposing restrictive Covid policies. It was well into the protest before the manifesto bullshit came up. I think you pay too much attention to the media when you think that it meant much. (https://www.ctvnews.ca/politics/what-does-the-trucker-convoy-hope-to-accomplish-1.5758489) BTW what do you think you might have done had you been PM to ameliorate the situation? Would you have tried to open a dialog? Would you have talked to them like they were your fellow citizens and neighbours?
Well reasoned and written. Unlike today’s judgment.
Excellent comments, and speaks to the need for some serious guidance fm SCC re application of Vavilov to higher level public policy decisions (including sigificant GiC & LGiC orders). This analysis, coupled with FCC analysis in the plastics case, seem to indicate that this court at least, is moving toward equating reasonableness with correctness, contra Vavilov.
You say, "I suppose we’re expected to believe it was mere coincidence that blockade participants did not end their siege until the EA was invoked", but just because the protests ended after the law was invoked doesn't mean there is any causal link between those two events. As far as I understand the Ottawa protesters were cleared by a police operation that was organized by the OPS, not the federal government. It's hard to see why the EA was needed to carry out that operation.
I think given how things played out, it's difficult not to believe that both the police and many of the protesters were spurred by the EA declaration (or in the case of places like Coutts, spurred by the stated intent of the government to invoke). Protesters clearly backed down when they realized there were additional consequences to continuing. The OPS operation went ahead as soon as tow trucks became available, and even the judge here acknowledges the inability to get tow trucks was a capacity issue.
That said, whether the decision to invoke the EA was reasonable does not even depend on whether the EA subsequently proved *directly* responsible for clearing the protests in this sense - all it needs to have done is supplement existing resources, i.e. had some impact, and I think that much is clear.
I find it unreasonable to assume the counterfactual absent the EA was the exact same result. There was a very real threat that similar efforts by police could have turned horribly violent. The additional measures by the EA very likely reduced protesters' resolve.
Well your arguments are no more sound than what you accuse the Judge of making. Do you truly believe this mess couldn't have been solved without the EA or that there were no more actions that could have been taken by police in Ontario with RCMP help? Do your rights mean so little? It feels as false as Chrystia Freeland's "economic threat" speech.
Fine -- explain what actions could have been taken by police with RCMP help.
Um.. er.. well the actions that were taken. https://whyy.org/articles/canada-police-quickly-push-back-covid-protesters/ Can anyone tell me why this government did nothing to ameliorate the situation like they did with the railway blockades? Could they not have said "if you leave Ottawa this weekend, we will hold a free vote on the Vaccine border issue and you can deal with your local MP if you don't like how she voted"?
There is zero evidence that such an offer would have ameliorated the situation. The occupation organizers were quite clear that only the cancellation of all vaccine mandates across the country, if not the replacement of the government with organizers themselves, would be a sufficient condition for their voluntary departure.
The EA was used to declare a zone of illegality for continued protest. That obviously contributed to some of the more casual occupation participants departing the scene before the crackdown. As long as the lawless hardcore participants were able to shield themselves within a crowd of softer supporters, a crackdown without widespread violence would have been surely more difficult without the EA even if it was somehow possible.
Stefan, you are absolutely correct that there is zero evidence such an offer would have worked. Of course, there is the same amount of evidence that it wouldn't have. And what would have been the downside of the government acknowledging that some Canadians were unhappy and by making a reasonable offer to have the issue decided by the democratically elected body of parliament rather than a diktat by the PMO. Instead, the government refused any communication with the protesters and issued insults and slights in the media.
Rouleau prefaced his conclusions by saying: “I did not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming and I acknowledge there is significant strength to the argument against reaching it,”
...and the significant strength of the argument against Rouleau's "reluctant decision" is what we heard expressed today.
Loosely interpreted, Rouleau's decision essentially granted any majority party to waive aside the Constitution whenever they feel threatened, as long as they truly BELIEVE they are being threatened.
It set a ridiculous and dangerous precedent. I am far more happy to live in a country governed by "the rule of law" as carefully expressed by Justice Richard Moseley.
The problem with your argument is that Rouleau's approach, as you're describing it and are lamenting, is literally the reasonableness standard that Justice Mosley was explicitly supposed to be following! Rule of law indeed!
One man's reasonableness is another man's overreach.
Fine, then make the argument as to where the overreach occurred, exactly, and why.
Freezing bank accounts without recourse. The Emergencies Act requires a situation 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.” Neither occurred. Both Coutts and Windsor were resolved prior to the EA. There was little to no violence and the police handled the matter. The act also says the act can only be used if there is no existing law that can deal with the situation. I'm sure our neighbor to the south and the business lobby put pressure on the government to resolve the matter but instead of letting this government off the hook completely, we should make sure that this Act is not implemented without meeting the terms of the Act.
It is not a ridiculous precedent. There are many ways to measure whether a government is being sincere or honest in its claims, so there are an infinite number of circumstances where the government could be accused of bad-faith application, and punished accordingly. The evidence in this circumstance happens to be favourable to the government's intentions.
Well written..a different examination of the findings..kudos!,
Despite the fact that he is not a lawyer, I have always had respect for Mr. Macfarlane’s views on legal matters as expressed through his academic work, and still do. Unfortunately, in this article, freed from the constraints of peer review, he presents a breathless polemic that reads as much like the first draft of a column for an Ottawa community newspaper as it does a reasoned response to Justice Mosley’s judgment in this matter. It might have been better for all concerned had Mr. Macfarlane reflected somewhat longer, rather than proceeding to give a hot take on such a substantive court decision.
I'd appreciate the criticism of a post that is, admittedly, quite punchy, if perhaps it included any meaningful responses to the several substantive critiques within. It may be "a substantive court decision", but I think my post points to multiple ways in which it is a flawed one, and I'm not sure the lack of peer review or that you think it's a "hot take" is much of a rebuttal.
THANK YOU, EMMETT!
Bravo
The protest convoy was initially all about the government imposing restrictive Covid policies. It was well into the protest before the manifesto bullshit came up. I think you pay too much attention to the media when you think that it meant much. (https://www.ctvnews.ca/politics/what-does-the-trucker-convoy-hope-to-accomplish-1.5758489) BTW what do you think you might have done had you been PM to ameliorate the situation? Would you have tried to open a dialog? Would you have talked to them like they were your fellow citizens and neighbours?
Really worth reading. Thank you for writing it.