The Trudeau family tradition of invoking unnecessary emergency powers

The Trudeau family tradition of invoking unnecessary emergency powers

As the government of Justin Trudeau appeals January’s Federal Court decision that found his invocation of the Emergencies Act in 2022 to be unlawful, history is repeating itself in uncanny ways. Newly obtained records from 1970 show that former prime minister Pierre Trudeau, like his son, also didn’t meet the legal threshold to invoke emergency legislation used to quell a national crisis.

On Oct. 16, 1970, then-prime minister Pierre Trudeau announced that, at around 4 a.m. that morning, his cabinet had invoked the War Measures Act. A terrorist group possibly numbering in the thousands was about to overthrow the Quebec government. The only way to stop this feared insurrection was by suspending ancient civil liberties like the right against unlawful imprisonment, allowing police to make mass arrests of suspected members and hold them for weeks without seeing a judge.

The situation was indeed serious. The separatist Front de libération du Québec (FLQ) that had terrorized Quebec with bombings in the 1960s had kidnapped Quebec’s labour and immigration minister, Pierre Laporte, and the British trade commissioner, James Cross. Laporte was later killed.

But not only was there never any apprehended insurrection (a legal requirement to invoke the War Measures Act), Pierre Trudeau was wilfully blind to whether one existed. This is apparent from formerly secret testimony by then-commissioner of the RCMP William Higgitt, which was obtained through an access to information request by the Canadian Constitution Foundation, as well as the findings of lawyer Jean-Francois Duchaîne in his 1980 investigation into the FLQ crisis for the Quebec government.

Higgitt had testified secretly in 1979 to the public inquiry into the illegal activities of the RCMP Security Service, also known as the McDonald commission. He attended daily meetings with cabinet members including Pierre Trudeau in the days leading up to the invocation of the War Measures Act. Yet he testified, according to the newly obtained records, that he was never asked whether he believed there was an apprehended insurrection, or whether he thought the War Measures Act was necessary to counter the FLQ. Had he been asked for his opinion, he told the commission nine years later, Higgitt would have said “no.”

This rhymes with the stunning testimony of RCMP Commissioner Brenda Lucki to the Rouleau commission, which inquired into Justin Trudeau’s invocation of the Emergencies Act in 2022.

Like Higgitt, Lucki attended meetings with the younger Trudeau in the days before the invocation of emergency powers, but was never asked for her opinion on whether these powers were needed. She later testified at the public inquiry that had she been asked, she would have said that police had “not yet exhausted all available tools.”

Why didn’t the Trudeaus ask? Perhaps they had simply made up their minds to invoke emergency powers, instead of using the ordinary criminal law. They may have wanted to look like they had brought a serious situation under control, whether their methods were legal or not.

A second eerie similarity is that both governments suggested a shadowy network much bigger and more sophisticated than truly existed.

When the War Measures Act was invoked in 1970, federal minister Jean Marchand estimated that there were as many as 3,000 FLQ members. In his investigation afterward, Duchaîne put the number at closer to 35. Meanwhile, McDonald commission reported that of the 467 persons arrested during the October crisis, only five were prosecuted.

During the Freedom Convoy protests, then-public safety Minister Marco Mendicino repeatedly claimed a group of right-wing extremists planned to violently overthrow the government. Mendicino repeated these claims when he testified to the Rouleau commission, stating that a “sophisticated and organized” group of people were “preparing to become violent.”

More than two years after the convoy, the government has offered scant evidence of a sophisticated and organized group intent on violence. The only potential serious violence associated with the movement was an alleged conspiracy to murder RCMP officers in Coutts, Alta. Two of the four men accused have pleaded guilty and been released from jail. The remaining two face serious charges, but the lack of similar cases suggests Mendicino may have exaggerated much like Marchand.

A third way that history eerily repeated itself was the authorities’ use of a small number of weapons and explosives to point to a national emergency. In 1970, Pierre Trudeau repeatedly cited the theft of guns and dynamite as evidence for the supposed apprehended insurrection. An FLQ supporter had stolen dynamite, but it’s hard to see how that was proof of a greater plan to overthrow the government, or a problem that couldn’t already be dealt with by police.

Similarly, two pipe bombs, a dozen long guns and a few handguns found in a man’s trailer near Coutts in 2022 were used to demonstrate the need to invoke the Emergencies Act. That was, at best, evidence of a local emergency — one that was effectively dealt with by the everyday law.

When Higgitt testified, he knew of no evidence of an apprehended insurrection, which meant the legal requirement for invoking the War Measures Act was not met. Examining the FLQ crisis a decade later, Duchaîne reached the same conclusion. In the 2020s, CSIS Director David Vigneault thought the same with respect to the Emergencies Act: the legal requirement for a threat to the security of Canada was not met. Yet the prime minister went ahead and invoked it anyway.

People often ask why the Canadian Constitution Foundation is fighting Ottawa in the federal courts over the invocation of the Emergencies Act when all that can be awarded is a declaration that the government acted illegally. We’re fighting because the Emergencies Act is a carefully written piece of legislation designed to prevent governments from suspending civil liberties and rounding up hundreds of people on a pretext, as Pierre Trudeau appeared to do in October 1970.

Although the Emergencies Act didn’t stop Justin Trudeau’s government from repeating history, confirmation by the courts should give future governments pause and reduce the risk of a trumped-up emergency declaration happening again.

This article was originally published in the National Post on May 9, 2024.

Headline images used under Creative Commons 2.0.
Left image from Archives of Ontario. Right Image by Mohammad Jangda.