Cardus Insights: Subsidiarity Over Emergency

The invocation of the Emergency Measures Act by the prime minister this week makes us wonder, “Why and how in the world did we get here?”
Stories are best understood when we start at the beginning. So, it is worthwhile to reflect back 23 months, when COVID came seemingly from nowhere and governments around the world responded by shutting down society. At that time, no one really knew or understood what we were dealing with. In a knowledge vacuum, when dealing with a deadly virus, that prudence made sense. But as I co-wrote with Martinrea Executive Chairman Rob Wildeboer in a Hill Times piece published on April 2, 2020, three weeks into the pandemic, good generals don’t enter battles without a clear exit strategy. We suggested a framework for collecting information and ensuring we “frame the conversation in the context of the hope of living with purpose and meaning rather than in the fear of dying” in order to make it through united and strong. A month later, we followed that up with a piece that argued governments were making a mistake in trying to go it alone in dealing with the pandemic only using control measures. “It’s time for politicians to make room for other parts of civil society – companies, industry associations, unions, churches, charities and the like – to lead their particular sectors of life on the road towards relaxed, and eventually lifted, pandemic measures.” We had no access to secret wisdom. Rather, as I expanded on in the Insights column I wrote that week, we were tapping into the principle of subsidiarity which has a rich pedigree in Christian social thought and Canadian constitutional law. Sadly, leaders too often forget this principle when dealing with challenging situations. Contrary to the popular impulse that complex problems are solved when the “strong man” leader steps forward and uses force and authority to settle a challenging problem, the most effective means are often found in a different approach.
I won’t repeat the now familiar arguments that the invoking of the Emergencies Act this week is likely unconstitutional, introduces political confusion, and is being improperly applied as the conditions for using it, as demonstrated by the prima facie evidence that the Ambassador Bridge was just cleared without it, had not been met.
I presume the prime minister knew all that before invoking the act. However, he seems to have made an alternative political calculation. In the face of public opinion blaming him for enflaming the controversy, it seems smart politics for him to try and change the political channel of discussion from protests against vaccine mandates to foreign interference in Canadian politics. My cynical self imagines a conversation in the Prime Minister’s Office that goes something like this: If we use the heavy hand of the legislation to get rid of the Ottawa protesters (for which many blame us anyway), we can turn the focus on evil American money and Trump sympathisers trying to hijack our politics. Then we can withdraw the application of the legislation almost as soon as it is passed. The political pros outweigh the cons, they’re likely thinking, allowing the government to score a few political points on what to date has been a disastrous political issue for the prime minister.
Imagining such a partisan and cavalier use of the Emergencies Act’s invocation would be about as strong an indictment of the prime minister’s leadership as one could make. (This is presuming that there is not an existential foreign threat which, as columnist Terry Glavin points out, is hard to imagine given that the money raised for the truckers pales in comparison with the $50 million or so of American money dedicated to anti-oil sands campaigns. Glavin could have easily pointed out numerous other much more egregious precedents which did not seem to constitute significant worry. Is the Ottawa protest serious stuff? For sure. Emergencies Act material? Hardly).
There are additional dimensions of subsidiarity to consider, which leaders have consistently overlooked during the pandemic. I would argue this has made our circumstance much worse than it needed to be.
The first is the concern that the government is politicizing national security and poisoning political discourse. Defence Minister Perrin Beatty introduced the Emergencies Act in the House of Commons in 1988 as a replacement for the earlier War Measures Act. During debate, he noted that when the federal government invoked the War Measures Act in 1970 to deal with Quebec separatists known as the FLQ, “civil liberties across the country (were) suspended in order to deal with the situation which was relatively isolated in terms of its implication. Even though the FLQ problems that existed were taking place in the Province of Quebec, people as far away as Vancouver, British Columbia, or Guelph in Wellington County in my area, found their civil liberties suspended as well.” Although the 1988 Act was supposed to correct this problem, a Manitoba Law Journal analysis shows “it creates an even greater threat to civil liberties than the War Measures Act. … In particular, there is a serious danger that declarations of ‘public order emergencies’ under the new Act will be used to suppress a variety of political movements.”
Prime Minister Trudeau and his cabinet have done nothing to allay these fears. Justice Minister Lametti, was asked if ordinary donors who might have contributed to the trucker convoy fund ought to be worried about having their bank account seized. He responded that “if you are a member of a pro-Trump movement who is donating hundreds of thousands of dollars” you ought to be worried. Yes, he put big numbers behind it but that doesn’t negate the point. Whatever you think of President Trump, sharing his views is not a crime in Canada. Neither should it put you at risk of having your bank accounts frozen.
The Emergencies Act is risky also in terms of national unity. Its political pedigree ties it to attempts to bring Quebec alongside the rest of the country in constitutional wranglings. The unanimous adoption of a motion by the Quebec National Assembly this week, condemning the act’s use, suggests an additional dimension of this debate. The role of the federal government in dealing with what almost certainly should have been fixed through provincial policing responsibilities raises issues that will last much longer than the blockade.
Political cultures and sentiments are not just individual–they are cultivated and often expressed in the context of civil society institutions. The Emergencies Act corrodes Parliament as well as every other institution in the country. It federalizes state powers. But, and this is the subsidiarity point that I would make, it seems the logical extension of a path that we have been walking together. Daily news conferences in which the message was “trust us, the federal government has your back” and the various steps that relied on shutdown and regulation rather than personal responsibility for two years produce a particular political culture. It puts all of our eggs in the government basket. As a friend said to me this week, “The Emergencies Act is nothing more than the logical fulfilment and extension of principles which have shaped our pandemic responses for the past two years.”
And it isn’t only manifest in pandemic politics. The 2018 Canada Summer Jobs attestation issue illustrated this government’s approach that if you don’t agree with its definitions of public good, you are not really welcome to participate in the commons. (The Liberal 2021 platform promise to deregister pregnancy counselling centers as charities, which is included in ministerial mandate letters, is just another illustration of the same mindset).
The principle of subsidiarity is fundamentally a democratic one. It pushes decisions down, allows diversity of opinion and approaches in different contexts, and emphasizes responsibility. The Emergencies Act is, one might argue, the logical extension of an opposite approach. When the government takes all of the responsibility to itself, then individuals and institutions can only thrive when they become extensions of the government and its perspective.
Freedom and responsibility don’t work that way. As we noted 23 months ago, good generals enter into wars with exit plans. I presume the Emergencies Act was not on anyone’s exit plans when the pandemic challenges emerged. But what was missing from the outset was a real distribution of responsibility, a sharing of information, and an allocation of trust for other institutions to do what needed to be done in their own contexts.
This is not a sweeping condemnation of every government action. COVID is a real public health crisis and governments had a responsibility to take certain steps. But as has been argued on this page throughout, the sharing of information, the placing of responsibility on people to do the right thing, and the reliance on persuasion rather than coercion are almost always the better principles for leaders to follow.
Sadly, this most dreadful violation of the principle of subsidiarity will, I fear, not age well.

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