Long before the Freedom Convoy protests earlier this year, I’d been somewhat skeptical of the value of the Canadian Charter of Rights and Freedoms — not that I thought it was a bad thing to have a clear enumeration of Canadians’ rights, but in the degree to which those rights could be ignored or abrogated whenever the government found it convenient to do so. The invocation of the Emergencies Act proved that lacking strong and effective absolute rights, the Charter was merely a bit of tissue paper. In The Line, Josh Dehass shows he’s not as cynical as I am about the value of the Charter and provides some history predating the current document:
In a Boston courtroom in 1761, lawyer James Otis Jr. made one of the most consequential legal arguments of all time.
Otis was challenging the legality of “writs of assistance”, a form of general warrant giving unfettered discretion to customs agents to force their way into people’s homes to search for and seize smuggled goods, and to require the “assistance” of bystanders.
“It appears to me (may it please your honours) the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in an English law-book,” Otis inveighed.
John Adams later described that day in court as “the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born. Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants.”
This hard-won right to be secure against unreasonable searches and seizures, affirmed by Section 8 of the Canadian Charter of Rights and Freedoms, is the reason so many of us felt queasy about the Emergency Economic Measures ordered by the Liberal cabinet under the Emergencies Act in February to quell the trucker protests. Canadians might not know their constitutional history or even the text of the Charter, but they know in their bones that these orders were unconstitutional.
The emergency measures required financial institutions to search their records for customers suspected of “directly or indirectly” engaging in a “public assembly that may reasonably be expected to lead to a breach of the peace”, or “directly or indirectly” using their money to facilitate such protests, and then seize their accounts.
That’s a classic general warrant, a writ of assistance in fact, enlisting banks to help King Trudeau and Queen Freeland hunt down their political enemies without going before a judge to prove reasonable grounds that a specific offence had been committed by a specific person. Section 8 is designed to keep us secure against unreasonable searches and seizures by the executive, and the only way for individuals to maintain this security is by requiring specific warrants from an independent judiciary, barring exigent circumstances.
This profound assault on our section 8 right will hopefully be raised during Justice Paul Rouleau’s inquiry into the use of the Emergencies Act, despite Trudeau’s attempt to focus the inquiry on the truckers themselves. Even if section 8 doesn’t get examined during the inquiry, the Canadian Civil Liberties Association expects to raise it in Federal Court if they’re successful in convincing a judge to review the decision to declare the protests a national emergency.
I don’t expect anything useful to come out of this inquiry process, otherwise Trudeau wouldn’t have let it get started in the first place.
