Thread by @NomiClaireLazar

1/13🧵Does Canada’s convoy crisis meet the threshold for a Public Order Emergency under the #emergenciesact?

Everyone agrees this has to end, but experts & MPs reasonably disagree on whether this was the best or necessary way.

Is there one right answer? If not, how to decide?

2/ Sometimes emergencies are obvious: An earthquake renders roads impassable for ambulances; a flood threatens to overwhelm levees; a nuclear power plant melts down; there's an invasion.

But it's common for emergencies to be ambiguous & influenced by practical considerations.

3/ For example, declaring an emergency at municipal or provincial levels gives access to needed funds & resources. The threshold becomes: can we pay for this?This is true in other jurisdictions too, like the US, where FEMA money is unlocked by emergency declaration.

4/ We rarely subject provincial and municipal emergency declarations to much scrutiny but...

5/ ...appropriately, we're taking the #EmergenciesAct declaration extra seriously & focusing attention on the legal criteria defining thresholds for a Public Order Emergency. You will find them in S. 16 of the Act.

So shouldn’t we just apply the rule?

laws-lois.justice.gc.ca/eng/acts/C-23/…

6/ Here’s the thing: We can only decide when to apply a rule with clarity if the situation is clear. And we rarely have full facts. Even so-called evidence-based policy in normal times confronts a range of data difficulties. In a crisis, this information deficit is much worse.

7/ We've some facts on the ground which suggest that orders under the #EmergenciesAct have been effective in clearing Ottawa streets, but that doesn’t mean there weren't other means to achieve the same end.

8/Then there are the border disruptions, but those have seemed easier to manage through political will & prov powers. What of concerns re foreign interference, threats to change system of government, assassinate our members of parliament & journalists, weapons caches, etc?

9/ This is especially concerning & especially 'national' in character, etc. But just because folks say they plan to overthrow the government & just because they have a few weapons doesn’t mean they actually pose a credible threat. Concerning, but not conclusive.

10/ So my best sense is: while perhaps Ford COULD have got Ottawa back to safety and normalcy w/out the #EmergenciesAct, the political situation became such that it was not actually GOING to happen w/out further damage. And, this urgently has to end, SO...

11...the police actions we're seeing were made possible by the declaration, but contingently so. It could have been otherwise. We must be on our guard here: effectiveness of emergency action may lead us to conflate success w/ necessity.

12/ To sum up, there may be no clear answer to the threshold question. It, like many moral decisions within law's indeterminate spaces, comes down to judgment. First, Trudeau's. Then, parliament's. And finally, our judgment in the next election & in the history books.

13/ An inquiry will inevitably follow & must ask: how did we get here? Not just whether some threshold was met, but how we could have avoided being force to pose the threshold question in the first place.

*FIN*