Permanent Emergency
Canadian constitutional scholar Ryan Alford on Canada's crackdown against protestors
The following is a lightly edited version of an interview Tuesday over Zoom with Canadian constitutional scholar Ryan Alford, the author of a 2017 book titled Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law.
Trudeau invoked the Emergencies Act on Monday. What’s changed since then?
What has changed so far is that we’ve seen a lot of comments on the government about how they’re backing off on the use of the most controversial powers. There have been a number of statements about how they are no longer freezing bank accounts and financial products and are going to start unfreezing them. The problem is that they’ve continually asserted—particularly within the House of Commons finance committee—that they have the power to do this. Essentially, they’re exercising their discretion not to continue with this incredibly bold course of action of initiating seizures without any due process, without any judicial oversight. But they’re preserving the right to do it—and that’s perhaps the most disturbing element of this.
And the banks are indemnified, right? They can’t be held legally liable for any of this.
Right. The government presents them with a very vague, open-ended regulation. It states that they have this responsibility to do these things, and then says, “Oh, and by the way, if you get this wrong and you ruin someone’s life—they default on their mortgage, et cetera—you have no liability.” It almost looks as if there’s a clear signal that they want the banks to be aggressive, but then the government can disclaim the responsibility for having done that.
I haven’t seen any indication of resistance from banking institutions. Has there been any friction in the implementation of this?
None whatsoever, and you shouldn’t expect any from an entity that owes existence to the government and is so carefully regulated by the government. Granting a banking charter is essentially a license to print money. As long as you meet these regulatory requirements, which can be quite complex, you can borrow money and then loan it out at interest. You have agencies controlled by the executive of the government charged with overseeing the regulations that can either say, “That’s a very minor fine for you, carry on as normal,” or they could revoke the charter of a bank.
How has the Emergencies Act influenced the physical clearing of the protests by law enforcement?
It was the precise opposite of the financial actions, and it shows you how useful the emergency powers are in either direction. What happened there was the federal government essentially assumed direct control over policing. They pushed out the police chief of Ottawa, who had been on record for many years saying that the style of policing that he would encourage in this sort of event would be de-escalation. They pushed him out, and the executive took over direct control of how policing was run in Ottawa. And they used this to do things that couldn’t otherwise be done. For instance, a mass contingent of riot police drawn from Quebec, provincial police, were brought in, and they clearly covered their badge numbers and their names so they couldn’t be identified for the purpose of use-of-force complaints.
What will this mean for future mass protests in Canada? What will be different the next time?
What we know for sure is that the nature of the policing will be contingent on the political message being spread by the protestors. We don’t know, depending on which ideological faction is backing the next set of protests, whether the prime minister will breach health regulations, which were deemed previously to be of the highest importance, to go down and participate in the demonstration, shake hands with people, hug people, kneel [Editor’s note: Alford is making an apparent reference to Trudeau’s decision to participate in Black Lives Matter demonstrations during the initial novel-coronavirus wave in 2020, after he had advised the public to practice social distancing], or he’ll send in riot police. This is just battery acid on public esteem for the rule of law. That’s the real damage.
Why, in your opinion, has this particular cohort of truckers opposed to vaccine mandates been treated as an existential threat?
There’s no mystery to this whatsoever because Prime Minister Justin Trudeau has said these protestors are misogynistic, they are Islamophobic, they are anti-trans, they are anti-science holders of fringe, minority views that are not respectable in society … and he’s much more candid in French. If you’re only an English speaker, you may not have caught this, but he also said that the question we face is, Should these people be tolerated? So the reason why is because these aren’t citizens—these are a group of people with views, according to the, let’s just say, “the establishment” that should be vilified and completely disqualified as participants in political discourse.
In your reading of the permanent state of emergency created after 2001, is this just an extension of the global war on terror apparatus, or is it something new?
It’s a direct continuation. It doesn’t look like it, but it is. What you see is things that are initially directed outwards in foreign countries inevitably migrate back into the state itself, and most problematically, that’s the use of the intelligence agencies. Right now, what we see in Canada is this continual genuflection toward secret intelligence, and we don’t ask ourselves the question of whether or not that is consistent with responsible government. If members of parliament can’t even see the secret intelligence, and they’re asked to ratify the decisions of the executive, what kind of government do we have? We authorize the government to do particular things, and then we say to ourselves, “Oh, thank goodness, the danger is past.” Barack Obama is the president now, Justin Trudeau is the prime minister—they would never use these measures. Well, maybe they wouldn’t kick down mosque doors, but they’re using it in the exact same way against their enemies on the political right.
Is this phase of the protests essentially over, in your opinion?
Perhaps not, because what I see from the prime minister is the continued use of the rhetoric of anti-government extremists. What I saw in the House of Commons last week, which really shocked me, was [Trudeau] talking about the conservative members of parliament as bearers of that very same ideology. If they question the use of the Emergencies Act, they are themselves allied with anti-government views or anti-government ideologies. The question is whether or not people who are donating to legal challenges against the invocation of the Emergencies Act are themselves now considered designated persons for having provided indirect support to anti-government ideologies linked to violent extremists. And if not, why not? If you were to go to Parliament Hill right now with a sign that says, “Revoke the Emergencies Act,” you would be subject to being arrested, charged, and imprisoned under the Emergencies Act for the act of protesting.
Any final thoughts to share with Scroll readers?
I’d just like the readers to imagine if Donald Trump was promoting exactly this—or, even better, if Viktor Orbán was doing something like this—what the response of the foreign policy establishment and the elite would be.