Jurisprudence

Why Canada’s Response to the Trucker Crisis Has Been So Inept

A trucker gets directly in the face of a police officer.
A member of a group supporting the trucker protests and a police officer argue as the group continues to gather and block the streets of downtown Ottawa as part of a convoy of truckers against Covid mandates in Canada on February 11, 2022 in Ottawa, Ontario, Canada. Spencer Platt/Getty Images

Canada has not been the dull paragon of “peace, order, and good government” it is widely known for ever since a “Freedom Convoy” rolled into Ottawa and paralyzed the capital city on Jan. 27.

The protest against pandemic restrictions spread to border blockages at the Ambassador Bridge between Windsor, Ontario, and Detroit, Michigan, shutting down auto plants on both sides of the border that rely on just-in-time cross-border delivery. Some western border sites between Manitoba and North Dakota and between Alberta and Montana have also been shut down. Canada has received a somewhat humiliating offer of assistance from the U.S. Department of Homeland Security. As of Sunday, police had cleared access to the Ambassador Bridge with arrests, and the mayor of Ottawa may have reached an agreement with the occupiers to retreat from residential areas.

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But the question remains: How did things ever get this bad?

Putting the “Freedom” occupation in context requires understanding Canada’s past overreactions to national security crises, its failure to take the risk of far-right violent extremism seriously, its failure to modernize laws dealing with protests, and its divided and often dysfunctional system of policing.

Prime Minister Justin Trudeau has been unwilling to follow in the footsteps of his father, Prime Minister Pierre Trudeau, who invoked martial law and called in the troops in October 1970 in response to two kidnappings by a terrorist group committed to Quebec separatism.

There is good reason for this. The October Crisis still haunts Canada. It is possible to draw a straight line from it to the enactment of the 1982 Charter of Rights as a constitutional bill of rights and the transfer of the intelligence mandate from the Royal Canadian Mounted Police (RCMP) to the civilian Canadian Security Intelligence Service (CSIS).

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Ever since, CSIS has been stingy with sharing intelligence with the police, in part because of fears that intelligence might have to be disclosed under Canada’s broad disclosure rules created by the courts under the 1982 Charter of Rights. One example of that: police in Canada had to rely on intelligence from the FBI in the recent Jeffrey Delisle and Cameron Ortis espionage cases, because CSIS did not share similar intelligence with them.

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The ghost of the October Crisis has been re-enforced by other instances of overreactions to protest, even after the reforms of the 1980s. These include the 1990 stand-off between the military/police and Mohawk protesters in Oka, Quebec, in which security forces used tear gas and grenades and a police officer was killed in the resulting confusion and gunfire, and by the police killing of Indigenous protester Dudley George in 1995, for which a police officer was subsequently convicted.

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The law that allowed Trudeau senior to send in the troops in 1970 has been replaced with an Emergencies Act that the government has not used during the pandemic, due to near universal provincial opposition, and which is believed to be inadequate to deal with the present protest crisis. This as well as reluctance of the Conservative Ontario government to ask for military assistance also explains why the military has not yet been asked, under the National Defence Act, to assist with the Ottawa occupation, even though some military assistance may eventually be necessary, if only to assist with towing away large trucks that have blocked downtown streets.

Although it is an overgeneralization to think all of the protesters are far right extremists, the protests are influenced by elements of the transnational far right. There is also some evidence that far right actors in the United States and elsewhere are seizing on the dynamics of the Canadian protests to amplify a global far-right message.

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Canada has been slow to recognize violent far right extremism despite incidents of far right terrorism including a 2014 shooting rampage in which a man who wanted to overthrow the government killed three RCMP officers; a 2017 killing of five men at a Quebec City mosque by a man motivated by Donald Trump, David Duke, and anti-Muslim sentiment; a 2020 attempt by a military reservist to confront Prime Minister Justice Trudeau, who the reservist feared was imposing a communist dictatorship in Canada; and a 2021 killing of four members of a Muslim family by a man wearing swastika.

Canada’s programs for countering violent extremism are under-developed and adversely affected by federalism. Attempts have been made to deprive the convoy of funding, first through GoFundMe and then through GiveSendGo, but without obvious success. GiveSendGo announced it would ignore a court order to stop distributing funds sent to protesters, stating: “Know this! Canada has absolutely ZERO jurisdiction over how we manage our funds here at GiveSendGo.”

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The Canadian Criminal Code contains archaic provisions criminalizing sedition, unlawful drilling, and riots, complete with provisions for literally reading the riot act. In late 2021, in the face of pandemic-related protests that interfered with access to public services, the Canadian Parliament acted but in a typical piecemeal and partial way by creating new offences with respect to blockades of hospitals and harassment of medical health workers.

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Modern criminal regulation of protests as in the UK would have required the leaders of the protest to give advance notice to the police and provided offences if they failed to give notice or did not abide by conditions or restrictions placed on the protest. This could have made clear that the blocking of streets and borders as well as access to Parliament would have been prohibited and enforced. It also could have given the police the power to arrest and charge if protesters engaged in threats, harassment and displays of racial or religious hatred. Such restrictions would almost certainly have been challenged under Canada’s constitutional bill of rights but could be justified as a reasonable and proportionate limit on rights. But the Canadian Parliament, especially one in which the Liberal government does not have a majority, has only addressed blockades and protests against health care workers. More comprehensive legislation to deal with protests would have been controversial, but perhaps less so after the damage done by the “Freedom Convoy.”

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Unlike New Zealand, which quickly arrested over 120 protesters at their legislature inspired by the Canadian convoy, or the French police, which responded to attempts by a convoy to enter Paris with 7,000 police, Canada, like the United States, has a fragmented and localized police structure. This complicates demands by the Biden administration that Canada “use federal powers to resolve this situation at our joint border.” The RCMP acting as federal police only has jurisdiction over actual federal property. It is the local police that is responsible for the public street (now occupied by trucks, tents, and even a hot tub) that runs in front of the Parliament building and the main highway in Windsor leading to the Ambassador Bridge. Such arrangements should now be reconsidered.

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The Ottawa police seem unprepared for the occupation, even though there was advance notice of the truckers’ convoy, which started in western Canada. The Ottawa Police Service Board had a major events policy in place that contemplated advance planning both by the police and the Board. It has policies on Indigenous protests and labour disputes but not specific policies on protecting Parliament. There is no public evidence of what, if any plan, was prepared for the convoy of truckers.

This is not the first time that fragmented policing has created a national security risk. A terrorist motivated by Daesh was able to enter Parliament on Oct. 22, 2014, after killing a soldier guarding the Ottawa war memorial. A heavily redacted after-action report indicated that the policing of Parliament was a mess, with responsibilities divided – often in unclear ways – across both House of Commons and Senate police, the federal RCMP, and local police.

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As the convoy protestors drove past Parliament, it became clear that those issues of policing responsibility have not been resolved. The Ottawa police has since the early days of the protest requested 1,800 more officers from the RCMP and the Ontario Provincial Police (OPP). There has been a lack of clarity about how many officers have actually been provided. The provincial minister in charge of the OPP has been reluctant to participate in discussions, and some of the 5,550 officers in the OPP have been diverted to enforce an injunction against the Ambassador Bridge blockade in Windsor. Meanwhile protesters have dug in in the face of Parliament.

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The Ottawa convoy protest was not predestined to drag on for as long as it has, and its seeming intractability is the result of, among other things, specific policing decisions. The Toronto police, for example, performed better than the Ottawa police in preventing blockades by large trucks. One factor may have been its response to criticisms that its police board did not adequately plan for the 2010 G20 demonstrations that resulted in over 1000 arrests.

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The consequences of fragmented policing can also be seen in other provinces’ responses to trucker protests. The border blockades in western Canada were policed by the RCMP, but acting as local policing under contracts with provincial governments. Matters seemed to have been left to the RCMP without clear or transparent guidance from either responsible provincial or federal ministers. This may reflect an overbroad understanding of police independence from government direction as extending to all operational matters that seemed to be embraced at the federal level. It may also reflect some sympathy for the protests by the Conservative governments of Manitoba and Alberta. The Alberta government has refused to declare an emergency. Only one charge has been laid under its Critical Infrastructure Defence Act, enacted in response to anti-pipeline and Indigenous protest, raising concerns about inequities given heavy handed policing of Indigenous protests. At the same time, Premier Jason Kenney has given protesters what they want by announcing an end to most pandemic measures.

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The Conservative government of Ontario, facing an election this June, has taken a different approach, declaring a provincial emergency and creating offences of blocking critical infrastructure tied to license suspensions. This may have helped clear the Ambassador Bridge, but its effects on the Ottawa occupation remain unclear.

The failure to respond to the Ottawa blockade also raises concerns about the equal application of the rule of law. Participants in the trucker convoys are conservative, primarily male, and almost entirely white. Protestors representing marginalized groups have experienced less deference from police. In November 2020 the Ottawa police arrested and charged with mischief 12 people who blocked an intersection in downtown Ottawa in protest of the acquittal of a white police officer for killing a Black man. The charges were eventually withdrawn as not in the public interest but Canada has engaged, and continues to engage, in massive and militarized police enforcement against Indigenous protests and occupations.

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News is now circulating that the federal government may soon invoke the Emergencies Act. But this would not solve the problem of undergovernance of the Ottawa police or of the OPP or the RCMP in its contract policing role that has plagued the response to the occupation. Section 20 of that Act provides that the declaration of an emergency does not take away the powers that municipalities and provinces have over their police forces, including over the RCMP when it provides local contract policing. Even the extraordinary use of emergency powers would not under law “deputize” or give the federal government power over the local or provincial police.  Things are different if a province requests the federal government to send in the troops. If a province requests that the military be called in “in aid of civil power,” the federal Minister of Defence would govern the use of troops in consultation with the provincial Attorney General.

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The use of aid of civil powers or emergency powers would represent the ultimate failure of policing and especially police governance. A mandatory federal inquiry would follow the use of the Emergencies Act, and a mandatory provincial inquiry would follow the use of the military in aid of civil power to produce a report for the federal government about why the police alone could not handle the riot or disturbance. Undoubtedly such inquiries would, like so many before them, point out the need for proper proactive governance of the police including with respect to the policies that should guide police operations. One of Canada’s many security challenges is that both governments and police have found it convenient to accept inflated claims of police independence over all operational matters and simplistic and inaccurate views that governments can never direct the police.

Many in Canada, and especially Ottawa, have been left with a sense that their governments are missing in action. Governments and the police have lost control of the escalating blockades, bringing economic harms and international embarrassment to Canada. To be sure, such occupations are difficult for democracies to confront. But it is also government’s responsibility to do so, and the failures of policing policy outlined above have created opportunities for bad-faith actors to exploit, at a time when far-right extremism is on the rise in Canada and globally. Canada will have to re-evaluate its laws regulating protests and its approaches to far-right extremism and policing once these very troubling occupations have ended.

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