NRA-ILA | Two Weeks to Flatten Your Rights

In 2020, Liberal Prime Minister Justin Trudeau extinguished the property rights of law abiding Canadians at the stroke of a pen. By a unilateral Order in Council – passed without parliamentary debate or a vote – he declared that thousands of previously lawful models of semiautomatic guns and variants were illegal “military grade assault weapons.” Such weapons, he said, “were designed for one purpose and one purpose only, to kill the largest number of people in the shortest amount of time. There is no use and no place for such weapons in Canada… So, effective immediately, it is no longer permitted to buy, sell, transport, import, or use military grade assault weapons in this country.”

Farmers, hunters, sport shooters, and collectors in possession of these guns – impliedly all condemned as potential mass murderers – were henceforth prohibited from further use of any gun on the prohibited list. The Royal Canadian Mounted Police (RCMP) has since added thousands of additional makes and models to the list as “variants” of the banned firearms. The only recourse for owners who wish to avoid criminal prosecution is to surrender their property to the government or hope that the Liberal government makes good on its promises of a “grandfathering” option.   

Now, Justin Trudeau has again reached for the heaviest and biggest stick he can find, to quell a peaceful protest against the federal government’s COVID-19 vaccine mandate.

Effective January 15, 2022, his government decreed that “unvaccinated Canadian truck drivers entering Canada will need to meet requirements for pre-entry, arrival and Day 8 testing, as well as quarantine requirements.” Drivers, the federal transport minister stated, “must now get the shot or stop driving over the border.”

Truckers responded with a cross-Canada “Freedom Convoy 2022” to seek a lifting of the mandate, with one stream heading to Parliament in Ottawa and others at points like Coutts, Alberta. Significantly, the protest is not against the COVID vaccines – indeed, over 85% of truckers have had the jab – but against the government action that gives these workers (and others) no choice if they wish to continue to provide for themselves and their families.

Trudeau had previously described unvaccinated Canadians as persons who “don’t believe in science/progress and are very often misogynistic and racist,” musing, “as a leader and as a country, …Do we tolerate these people?” In a similar “basket of deplorables” turn of phrase, he dismissed convoy participants as “the small fringe minority of people who are on their way to Ottawa, who are holding unacceptable views that they are expressing.”

One measure of the “fringe minority’s” popular support was the response to a GoFundMe campaign to help with the truckers’ costs of fuel, food and lodgings. The campaign reached over CAD$10M in donations in two weeks before being abruptly shut down on February 4. GoFundMe announced this was due to “evidence from law enforcement that the previously peaceful demonstration has become an occupation, with police reports of violence and other unlawful activity,” after “multiple discussions with local law enforcement and city officials.” The funds would be distributed to “credible and established charities” selected by the sponsors, but after an immediate outcry, GoFundMe agreed to automatically refund all donations. GiveSendGo, the alternative crowdfunding site set up for the Freedom Convoy, quickly reached millions of dollars.

Demonstrations are protected by the Canadian Charter of Rights and Freedoms, which guarantees the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of association; and freedom of peaceful assembly. Trudeau had earlier gone on the record to express his approval and support over a similar protest that had shut down New Delhi, India for months, saying, “Canada will always be ready to defend the right to peaceful protest.”

The truckers’ protest has been largely peaceful. Days into the protest, Ottawa Police Chief Peter Sloly advised that, contrary to reports, there had been “no injuries, no deaths, no riots,” despite “tens of thousands” of actively demonstrating individuals in the city. As of February 10, two weeks into the demonstration, there had been only 25 arrests for criminal offenses like mischief (providing gas to the protesters), resisting police, drug possession, and transportation of fuel.

An Ontario court had granted a civil injunction against honking truck and air horns that otherwise left the defendants “at liberty to engage in a peaceful, lawful and safe protest.” Sworn affidavits filed in that action by residents describe truckers who have “at all times, been friendly, courteous, humble, considerate and peaceful,” who were “feeding the homeless on Wellington Street and filling their backpacks with food,” and “maintaining the cleanliness of city streets, including picking up discarded masks on the ground, centralized garbage collection, shoveling snow,” and looking after nearby monuments. Reporters onsite (here and here) confirm that there has been no violence, vandalism, or “extremist political agenda” on display. A Newsweek columnist writes that “[c]ountless trucker convoy participants and supporters are Black,” and “appropriate for the month of February,” “the trucker convoy is actually a Black history moment.”

Prime Minister Trudeau has not met with or directly engaged with the protesters to judge for himself, instead taking the unprecedented step of unilaterally invoking the federal Emergencies Act and declaring a “public order emergency” on Valentine’s Day. This law, which has never been used before, authorizes extraordinary government measures that threaten civil rights.

The legislation and procedures involved are complex, but the act defines a “public order emergency” as one “that arises from threats to the security of Canada and that is so serious as to be a national emergency,” being an urgent crisis that either “seriously endangers the lives, health or safety of Canadians” or “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada,” that cannot be effectively addressed using any other federal law. “Threats to the security of Canada” do not include “lawful advocacy, protest or dissent” absent threats or use of acts of serious violence, espionage, sabotage, or anything directed toward undermining the government by covert unlawful acts.  

Two of the protests (at the Ambassador Bridge and Coutts) had already been dispersed peacefully, indicating that existing law enforcement powers were effective and that the intended target of the new federal measures was likely the protest in Ottawa.  

While the declaration is in effect, the federal government may regulate or prohibit “any public assembly that may reasonably be expected to lead to a breach of the peace,” regulate or prohibit “the use of any specified property” or travel within a specified area, and authorize or direct “any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide” (for instance, to compel tow-truck operators to seize, remove and store a vehicle used in the protest).

Ottawa police, as evidenced by a February 4 tweet, had already taken credit for the cancellation of the GoFundMe campaign (“We want to thank @gofundme for listening to our concerns as a City and a police service. The decision to withhold funding for these unlawful demonstrations is an important step and we call on all crowdfunding sites to follow”), and on February 10, the Ontario government obtained a restraint order to freeze the new GiveSendGo accounts. This would prohibit any person “from disposing of, or otherwise dealing with, in any manner whatsoever, any and all monetary donations made through the Freedom Convoy 2022 … on the GiveSendGo online fundraising platform.” The order was based on s. 490.8 of the Criminal Code, which allows ex parte applications alleging indictable offences and “offence-related property,” including property located outside of Canada. A violation of the order is a hybrid offense; if charged as an indictable crime, the offender is liable to imprisonment for up to five years.

However, concurrent with the Emergencies Act invocation, the Deputy Prime Minister-Minister of Finance, referring to the “threat to our democratic institutions,” announced additional “immediate actions.” The government would be “following the money” by “broadening the scope of Canada’s anti-money laundering and terrorist financing rules so that they cover crowdfunding platforms and the payment servers providers they use… These changes cover all forms of transactions, including digital assets [crypto currencies]… The illegal blockades have highlighted the fact that crowdfunding platforms and some of the payment service providers they use are not fully captured under the Proceeds of Crime and Terrorist Financial Act.” All crowdfunding platforms, and the payment service providers they use, “must register” with the Financial Transactions and Reports Analysis Centre of Canada (Canada’s financial intelligence agency) and “must report large and suspicious transactions.” Financial institutions were authorized to cease providing financial services where the institution suspects a personal or corporate account is being used “to further the illegal blockades and occupations.” These institutions were “urged to review their relationships with anyone involved in the illegal blockades, and report to the RCMP or CSIS [Canadian Security Intelligence Service].” Banks and other institutions could “immediately freeze or suspend an account without court order,” with no resulting civil liability if the financial institution acted in good faith. In case anyone missed the point, this meant if “your truck is being used in these illegal blockades, your corporate accounts will be frozen. The insurance on your vehicle will be suspended.” 

On February 17, the Deputy Prime Minister confirmed that information about “individuals and entities, as well as cryptowallets” funding the Freedom Convoy had been shared between the RCMP and financial institutions. Accounts had been frozen and “more accounts will be frozen.” As yet, it is not certain that contributions and support made before the government declared these acts illegal won’t be swept in and punished retroactively.

The Ottawa Police Service has already notified protesters that vehicles and property may be seized, driver’s licenses and commercial vehicle operator registrations suspended or cancelled, and personal and business bank accounts (including virtual currency) “subject to examination and restriction,” apparently without a court order or other due process safeguards. Anyone who brings their child to the protest site may be charged and fined up to $5000 and potentially spend up to five years in prison. The delivery of fuel or other supplies to the protesters is also a crime.  

Justin Trudeau maintains that these measures are “reasonable and proportionate” to the threats they are meant to address.

Four provincial premiers opposed the use of the Emergencies Act. Civil rights groups – the Justice Centre, the Canadian Civil Liberties Association (CCLA), the Canadian Democracy Fund, and the Canadian Constitution Foundation (CCF) – condemned the suppression of peaceful protests and non-violent acts of civil disobedience, and the failure to meet the high threshold in the statute. According to the Justice Centre, the declaration was “unjustified by Ottawa facts and reality” – “truckers in Ottawa sitting in hot tubs by their trucks do not ‘seriously threaten the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.’”

On February 17, the CCF advised it would be bringing a legal challenge to what it called the unconstitutional use of the Emergencies Act: “The federal government has invoked the Emergencies Act as a matter of political convenience. This is illegal and violates the rule of law.” The CCLA also announced it was taking the government of Canada to court. “Protest is how people in a democracy express and share their political messages of all kinds… Many protests are disruptive. It is possible for a gathering to be both disruptive and also peaceful and nonviolent.” The government’s unprecedented emergency declaration “seriously infringes the Charter rights of Canadians.”

Regardless of whether the government and the banks come down on them, donors to the Freedom Convoy (in Canada and the U.S.)already have reason to fear repercussions to their employment, businesses, and personal safety. After the GiveSendGo website was hacked on February 13, information about thousands of donors was made public, leading to what one newspaper called “an increasingly ugly witch hunt as donors (or even just people peripherally connected to them) are threatened, fired or driven out of business.”

The situation continues to develop, but it is apparent that this is no longer about COVID or the mandates. With bank accounts frozen, the prohibition of the “unlawful activity” of demonstration, police checkpoints throughout Ottawa, the rounding up and arrest of peaceful protesters, and threats to journalists covering the police enforcement actions, it’s really about the kind of democracy Justin Trudeau’s government feels is appropriate for Canadians.