Back in 1944 during the brutal fighting in the Second World War there was a landmark US Supreme Court decision called Korematsu which upheld the internment of Japanese Americans from the US west coast. The US Bill of Rights was of zero help to Mr. Korematsu. And, of course, this decision is hardly surprising. It was war. Top judges are as likely to be swept up in the prevailing panic and outlooks as any other top officials. Of course, give it a decade so that the panic can calm down and odds are very high you would get a very different outcome from the courts. (Spoiler Alert: For analogous reasons, this is why I told everyone who asked me during the Covid lockdown hysteria that in my view there was zero chance of getting any recourse from the judiciary anywhere in the anglosphere, bill of rights or no bill of rights, a view that has proven correct.)
And that brings me to my native Canada and the courts there. To start, most readers will remember the Trucker Convoy that spread across chunks of Canada during the lockdowns. These truckers were mostly independent contractors and they were protesting Trudeau government vaccine mandates that were going to cost many of these drivers their livelihoods. The truckers dubbed their protest the Freedom Convoy. This convoy arrived into Ottawa, the national capital, at the end of January 2022 and the truckers parked all their vehicles on roads in downtown Ottawa near Parliament Hill. This violated all sorts of parking bylaws and probably the provincial Highway Traffic Act as well. While this was happening in Ottawa truckers also blocked roads and border crossings in Alberta and near Detroit in Ontario. Those non-Ottawa protests were dealt with by the respective provincial law enforcement authorities by issuing tickets and, after a bit, towing the trucks.
But not in Ottawa, where in mid-February of 2022 Prime Minister Justin Trudeau opted to invoke the Emergencies Act. This egislation was the progenitor of the War Measures Act that invoked by then prime minister Pierre Elliot Trudeau (father of Justin and about twice as smart, which made Dad a lot more dangerous for conservatives like me than his son, who in no galaxy can be described as one of the sharper tools in the shed) to deal with the francophone terrorists in 1970 who were kidnapping and murdering in the name of an independent Quebec. The later Emergencies Act was meant to have more judicial and political safeguards than its predecessor statute. Remember, this was a statute to deal with times when the existence of the state was in question. Anyway, on February 15t,2022, Trudeau Jr declared a public-order emergency to deal with the truckers who had blocked traffic in central Ottawa (but had committed no acts of violence and indeed some chunks of the population – even in Canada’s equivalent of Canberra – were cheering on the truckers). The key factor is that under this ‘we have a national emergency’ legislation Trudeau’s government issued two regulations. One prohibited all public assemblies that might reasonably be expected to lead to a breach of the peace. The other, incredibly, authorised banks to freeze the bank accounts of the truckers and anyone who donated money to their cause. (And yes, this could and did include grandmothers who had donated $50.) This second regulation made donations to the truckers a breach of the emergency law.
Then, three days later, the police in Ottawa moved in with all the subtlety of the thuggish Victoria Police enforcing Chairman Dan’s pandemic regulations. (We’ve all seen the videos of what the police did there, right? Any actions so far taken against those police officers? To ask is to answer, I’m afraid.) Baton charges. Pepper spray. The arrest of hundreds of trucker convoy protesters. (Compare this to the more recent Canadian police response to anti-Israel protesters in Canada and then stop wondering why people like me – before the Covid thuggery, the most pro-police law professor in the Anglosphere – have become pretty jaundiced about the police and suspect some in the upper echelons of having been politicised.) Frozen bank accounts and frozen credit cards of all sorts of supporters of the convoy. The truckers all moved on. And then with myriad arrests and bank balances seized Team Trudeau Jr, a week or so later, revoked the regulations made under the Emergencies Act. (Digression: Anyone who witnessed what happened in Ottawa or in Dan Andrews’ Victoria during the Covid thuggery and who isn’t very nervous indeed about a ‘cashless society’ in which government if pushed might just opt to block you from spending your own money – they say they won’t, but do you trust either side of our political caste – lacks all imagination.)
Of course the truckers at the time got no relief from the Canadian courts. I explained my thinking on that to start this column. But that was then. Time moved on and matters calmed down and the judges, as prone to panic and groupthink as any Ottawa or Canberra bureaucrat, eventually became much more receptive to policing government overreach. At least that’s one explanation for a Canadian Federal Court judge’s decision last month, when Judge Richard Mosley ruled the Trudeau government’s invocation of the Emergencies Act was unlawful and unconstitutional. The judge held the trucker protests did not constitute a national emergency. (Recall that in other parts of the country the trucker protests were dealt with under parking bylaws and the Highway Code.) Nor were these protests a threat to the security of Canada. On every point the judge ruled against the Trudeau government — though the judge did say, bizarrely, that had he been at the Cabinet table he too might have signed off on this heavy-handed response.
Of course the government of Canada immediately announced that it would appeal this decision to the Federal Court of Appeal. Remember that in Canada all superior court judges in the federal courts and in the provinces are appointed by the centre (a big difference to our Australian and the US Constitutions). And the Trudeau lefty-Liberal government has been in power for quite a while now. And those on the political left take judicial appointments very seriously, in the sense of appointing like-minded types to the courts in a way that (Trump excepted) conservative governments around the anglosphere seem congenitally incapable of doing – go and read the Love decision here in Australia and realise that the majority judges were all but one brought to you by the Libs. Ditto some of the recent rulings I’d describe as ‘activist’.
So who knows if this enervated bit of judicial standing up for civil liberties in Canada will be upheld on appeal? And, of course, either way it won’t do anything for the many people who lost their livelihoods and were ruined by Trudeau’s response. But it’s a small start in terms of some minimal bit of accountability. And with a Canadian election having to be held in the next 16 months or so, and with Mr Trudeau far behind in the polls, well maybe we’ll also see some political accountability in the not-too-distant future.