Through the first two months of 2022, Canada has been in the midst of one of the most unforeseen political stories to emerge in years, a Vaccine mandate protest which has grown so confrontational in just one month that Prime Minister Justin Trudeau has invoked the Canadian Emergencies Act for the first time ever. The emergency powers were used only for a week, with the intention of assisting local law enforcement in clearing the protests and cutting the protestors off from their financial lifelines. This move effectually allows the government to suspend the rule of law and stifle civil liberties in the name of severe national emergency. Such a drastic step amid seemingly peaceful opposition mean this move could represent the beginnings of a dangerous trend of constitutional retrogression in Canada. If emergency powers are further normalized and threats to rule of law, civil liberties, or electoral competition occur, this could very well be the case.

The protest in question: Canada’s Freedom Convoy, formed in the first weeks of 2022 to protest COVID-19 vaccine mandates following the expiration of an agreement between the United States and Canada which had previously allowed unvaccinated truckers to drive to and from their respective countries on delivery routes. 120,000 Canadian truck drivers regularly cross the border during their routes, while about 12,000-16,000 of these truckers are unvaccinated thereby affected by the agreement’s expiration. The convoy has used various acts of civil disobedience to bring attention to what they perceive as unjust vaccine mandate policies not only for truckers but for all Canadian employees, notably occupying the streets surrounding Canadian Parliament in Ottawa and blockading major border crossings between Alberta-Montana and Ontario-Michigan.

After weeks of shrugging off the protest as a “small fringe minority” with “unacceptable views,” Trudeau took the unprecedented step to invoke emergency powers. Created in 1988, the Emergencies Act represents the Canada’s most severe declaration of national emergency, expressly intended to respond to situations which either:

“(A) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(B) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.”

Trudeau’s justification for using these powers included references to both points, citing the blockades’ effects on international trade and economic stability (B), and the inability of local law enforcement to deal with the public safety threats presented by the blockades and Ottawa protest (A) (reuters.com). Though the border blockades are illegal and obstructive, in any other circumstance it would simply be the task of local law enforcement to clear them off the road. Given that the Freedom Convoy is a peaceful and well organized (albeit disruptive) protest, the invoking of a state of National Emergency is a precarious irrespective of the questionable content of the convoy’s messages.

The use of such powers has not occurred without considerable backlash: the Canadian Civil Liberties Association recently condemned the government’s decision, asserting their position that “emergency powers cannot and must not be normalized,” and that “protest is how people in a democracy share their political messages of all kinds…Not every person may agree with the content of every movement”. Other civil rights organizations including Amnesty International have also raised concerns over the matter.

Unnecessary imposition emergency laws by the executive would traditionally be viewed as a more transparent mechanism of authoritarian rule according to Varol, easily detected by onlookers both domestically and internationally. Given that the Canadian government is not a traditional authoritarian regime and does not deserve to be viewed as such, their use of emergency laws represents not an immediate foray into brazen authoritarian power consolation, but a subtle break from the regularly scheduled procedures of liberal democratic deliberation which at worst, represent the regrettable beginning of trend in Canada coined by Huq & Ginsburg as “constitutional retrogression”. This process is defined as the deterioration of the quality of democracy to a previous state through changes which on their own seem both incremental in character and innocuous in isolation, but which represent a threat to democracy when occurring in conjunction with the decay of 1) competitive elections, 2) liberal rights to speech and association, and 3) the rule of law. Emergency powers shrink the public sphere and allow the government to silence dissent by sidestepping normal statutory or legal channels; Trudeau’s actions represent a decay in liberal rights to speech and association, Huq & Ginsberg‘s second category.

When evaluating the threat of emergency powers to liberal rights of free speech and association, it important to note how emergency powers are notorious for being taken advantage of for power consolidation during periods of perceived crisis. Such was the case with the USA’s PATRIOT Act. This act, once intended to curb post-9/11 terrorist threats, instead resulted in a CIA-led campaign of illegal cyber-surveillance on ordinary American citizens on a scale never seen in United States history. To this day, there has been no justice for the breaches of civil liberties that took place under the provision of the PATRIOT Act and the act has been constantly renewed up until 2020.

Canada’s use of emergency powers also represents a decay of the third category of constitutional retrogression, the rule of law, defined as “the civil and political rights employed in the democratic process, and the availability of neutral electoral machinery, and the stability, predictability, and publicity of legal regime”. The use of emergency powers subverts the power a Democracy vests in their democratic processes because by design, emergency powers make possible the use of extralegal power which can be utilized without the need for popular support. Regarding the predictability of Trudeau’s legal regime, Trudeau fails by this measure as well; emergency powers had never been used in Canada’s history, even during the past two tumultuous years which have included such notable crises as the COVID-19 pandemic and the summer of Black Lives Matter protests in 2020. Therefore, only a decay in the quality of elections is missing from Canadian democracy to compliment the liberal rights suppression and compromised rule of law to warrant the label of “constitutional retrogression.”

It should be noted that Trudeau’s use of emergency powers does not represent coup or immediate sacking of Canadian democracy, rather it represents unfounded use of extralegal power by the executive confounded by the reality that the government’s desired responses to this emergency were able to be resolved on some level through the existing statutory or legal channels. For onlookers concerned about the future of Canadian democracy given the executive’s anomalous conduct over the first two months of 2022, this steady creeping towards constitutional retrogression is worth monitoring, particularly with respect to the competition of future elections. Since Trudeau will not likely venture this close to executive overreach anytime soon, especially since the newly formed “Emergency’s Act Parliamentary Review Committee” began meeting last Monday, the locus of concern should be on maintaining free and fair elections for the future in Canada. Any situation involving an unpredictable use of emergency powers deserves to be further monitored for constitutional retrogression, and this situation is no different.