In the face of the recent frigid temperatures, cities across the country have struggled with questions about homeless encampments, public safety, and the well-being of the affected individuals. The City of Edmonton has been on the front lines of these policy debates which can often assume an ideological dynamic. 

Recently, as the Edmonton Police Services shut down a homeless encampment and sought to move its residents into indoor shelters, the commentator and Mount Royal University political science professor Duane Bratt provided some insight into how direct responses to social disorder are sometimes perceived. He tweeted: “I do not know what the answer is. But this looks really bad. Police tearing down homemade shelters and arresting people in the dead of winter.” On the more radical edge of the progressive movement, the writer and “drug user liberation” activist Euan Thomson re-upped his recent essay describing such encampment shutdowns as “mass murder” and “a war on the poor.” Somewhere in the middle, we find Edmonton Mayor Amarjeet Sohi acknowledging concerns about the encampments, but still noting his worry that poverty cannot be “stigmatized or criminalized.” 

In these comments, we can identify two instinctive difficulties with how many Canadian progressives approach this issue. First, there is an obvious discomfort with solutions that “look bad,” and second, among the more strident advocates, there is an assumption that limiting people’s autonomy, particularly through police power, is akin to killing them. The more radical view makes its way back into the mainstream as a sort of vibe or instinct. Where the radical advocate will call police officers “pigs” for enforcing the law, more moderate progressives have just developed an instinctive discomfort with seeing police arrest people.  

The trouble with these instincts in both their strong and weak forms is that genuine progress on issues like homelessness, crime, and drug addiction often must “look bad” in the short term and do require society to limit others’ autonomy, in large part for their own good. A practical approach to public policy requires us to get over these difficulties and develop better instincts in their place. 

For example, temperatures in Alberta dropped below -40℃ with the windchill earlier this month. At that temperature, you can get frostbite within minutes, and freezing to death is possible—almost certain if you are so strung out or intoxicated that you don’t notice what’s happening to you. Campfires and makeshift heaters can light a nylon tent on fire quite easily, and there are horrific reports of encampment residents burning to death in their tents. 

If all that wasn’t bad enough, many of Edmonton’s homeless encampments have been infiltrated by criminal gangs that extort, threaten, and prey upon their most vulnerable residents. Nature abhors a vacuum, so when government cedes control of some parts of our cities, other authorities emerge. These other authorities are not the peaceable matrons of an imagined commune; they are often those most willing to exercise violence to maintain their profits and control, including gangs like Redd Alert. 

Despite this, residents of the camps don’t always want to leave, even when there is ample shelter space available, as there has been for the last several weeks. We should all sympathize with these people’s plight.^{1The journalist Brandi Morin movingly recorded and described some residents’ sadness, anger, and fear in her report from a recent encampment clearing.} Many of them struggle with mental health conditions and addictions, and their lives have been torn apart by trauma. They are often not in a position to look after their own best interests. 

That’s where the rest of society comes in. When homeless members of our community are putting themselves at risk by living in gang-run encampments in the dead of winter, we simply must insist that they leave their tents and go inside. To do that, we occasionally need to use police powers, including arresting people and sending them to (well-heated) prisons if they are defying lawful orders.

A shallow understanding of mercy is at work among the people who want to keep these camps open. They are so intent on respecting the autonomy of the camp’s residents that they are willing to let them freeze to death. A deeper understanding of mercy—and of human dignity and the bonds of shared citizenship—recognizes that we are all bound up with each other and that therefore we shouldn’t just allow our neighbours to risk killing themselves. A deeper understanding of autonomy recognizes that you’re not truly free to make decisions if you live at the mercy of addictive drugs and the criminal gangs who sell them to you. Indeed, removing people from those gangs’ clutches and helping them into recovery from addiction is a way of restoring them to genuine freedom.

In the wake of the cold snap, various parts of Alberta’s government took a promising step in that direction, with Deputy Premier Mike Ellis, Jason Nixon, the Minister of Seniors, Community, and Social Services, and Dale McFee, the Chief of the Edmonton Police Services, announcing their intention to continue dismantling the city’s homeless encampments, beginning with those considered most dangerous. 

Joined by Chief Wilton Littlechild and Treaty Six Grand Chief Cody Thomas, the ministers said they would establish a one-stop “navigation centre” to receive, treat, and assist those evicted from the encampments. Warm beds and hot showers, a safe place to eat, sleep, and store their possessions, and help to get into longer-term shelters, including some operated by Indigenous communities—these are the kinds of practical steps that can actually help. As Grand Chief Thomas put it, “We’ve got to act now, because people are dying, [and] encampments aren’t a safe spot for anybody to live.” 

But our instinctual difficulties with practical solutions like these can still pose problems at a more systemic level. 

For example, a common criticism of homeless shelters is that they are unsafe, with residents stealing others’ possessions, consuming drugs and alcohol, and acting out violently. Indeed, encampment advocates often cite the unsafe conditions as proof that appropriate shelter isn’t available.^{2CBC reporter Michelle Bellefontaine made this point repeatedly in her questions at a press conference on the issue, prompting vehement disagreement from Chief McFee, who said he was “almost flabbergasted” by the suggestion that living outside in a tent at -40℃ was somehow safer than going inside a shelter indoors.}

Let’s stipulate the point. Some shelters are not as safe as they should be. The solutions here are obvious. Ensure police and security staff are posted in homeless shelters. Arrest people when they break the law, both to stop the immediate harms and to deter others from causing such harms in the future. Don’t let those you have arrested out on bail if they are likely to reoffend right away.^{3If our judges won’t do this, our federal parliament can pass bail reform legislation to limit their discretion, including by preemptively applying Section 33 of the Charter to forestall a drawn-out journey past activist judges.}

Luckily policies like these need not be too punitive. Evidence from B.C. suggests that a disproportionate share of violent crimes are committed by a small number of repeat offenders, including some who are released on bail and reoffend that very day. We would all be better off if these prolific offenders were in prison. Indeed, the people who would benefit most from this are the more peaceful residents of Canada’s many homeless quarters who are the people most likely to be victimized by their violent neighbours.

With greater physical safety in shelters and temporary housing, our homeless neighbours could take better advantage of them. They would gain a clean and safe place to rest and a more stable setting to start putting their lives back together. Without the constant threats of violence, staff at homeless shelters could relax a bit and perhaps show some more sympathy in their enforcement of various rules and regulations. After all, it’s hard for workers at a homeless shelter to let down their guard and really listen to someone in distress if they are worried they are going to be attacked. We can and should reduce this worry. 

This would also benefit the incarcerated repeat offenders themselves. Again, it looks bad to imprison someone, but there are people for whom the best place is in fact prison, at least for now. Between their crimes and the chaos in their lives, they will do less harm to others and themselves if their autonomy is limited and they are offered the stability and restraint they need to reset their lives. 

It’s a hard truth, and it’s one I came to reluctantly. I myself had once adopted some of the reflexive anti-policing instincts so common to our discourse. The change in my thinking was prompted by experience. Before moving to Alberta, I spent several years volunteering in prison ministry in Surrey, as well as being part of a circle of support and accountability for released offenders in Vancouver’s Downtown Eastside. Meeting with prisoners, reading Gospel passages with them, and listening to how they could connect them to their lives, I heard the same story again and again. They didn’t like being in prison, but they recognized that what they were doing needed to be stopped and that imprisonment offered them the possibility of a hard reset.

To some urban residents, what looks really bad is the prospect of moving people into temporary housing in their own leafier, more desirable neighbourhoods—even though these are much better settings for putting your life together. Among the offenders out on parole I interacted with, I was struck by just how challenging a successful release could be in a place like the Downtown Eastside. The area is chaotic, soul-crushing, and filled with temptations for those who are trying to reset their lives, and yet that is where most of the Lower Mainland’s halfway houses are located.

It looks bad to have the cops patrolling around these new housing facilities, arresting people for shooting up in the gutters—but crime often increases in the neighbourhoods where these facilities are built and neighbours are rarely going to welcome them if they don’t believe municipal governments are serious about keeping their communities safe.

Stepping further back, these instincts have contributed to many of Canada’s social problems. It looks bad to talk about reducing immigration and we wouldn’t want to limit the autonomy of foreign students when they come here to work—but accidentally increasing our low-wage population by over 800,000 people contributed to the rent crisis that’s helping to force more of our neighbours into these encampments.

The list could go on. Progress in addressing a whole range of social problems will come when our leaders replace their unhelpful instincts with more practical ones. They need to get more comfortable with policies that look bad in a video clip but ultimately benefit the whole community, especially the most vulnerable. And they need to come to a more thoughtful understanding of what mercy and respect for people’s autonomy actually look like in these kinds of situations. It can be a tough sell, but it’s one our leaders ought to make.

Justice Mosley of the Federal Court has ruled that the Trudeau government’s invocation of the Emergencies Act was unreasonable, that there was no national emergency justifying its invocation, and that the threshold for declaring a public order emergency was not met. It’s a decision that gives teeth to the clear guardrails laid out in the Act itself and shows a remarkable degree of judicial humility and open-mindedness. 

Last year, Justice Paul Rouleau released his report following the Public Order Emergency Commission hearings in Ottawa which concluded that in all of the circumstances, cabinet reasonably concluded that grounds to invoke the Act were met. It’s important to emphasize that Rouleau’s mandate as chair of the Commission was to inquire into the circumstances and facts leading up to the invocation of the Act and the “appropriateness and effectiveness of the measures.” Rouleau was not tasked with making a legal determination, nor was his decision binding in law. The Federal Court decision is a formal legal declaration and serves as binding precedent. It is the first judicial exposition of what the text of the Act means and what it does not mean.

The central question Justice Mosley sought to answer in assessing whether the threshold for invoking the Act was met was what evidence was before cabinet when they recommended that the prime minister invoke the Act, and whether that evidence could suffice to form a reasonable basis for its invocation.

The decision is important for its swift rejection of the essentially untrammeled deference to the executive that the attorney general’s office argued for in its submissions on the standard of review (essentially, how critical of an eye a reviewing judge should use when reviewing a government decision). Mosley noted the AG’s gobsmacking assertion that extraordinary deference is due to cabinet in reviewing its decision because of its status “at the apex of the Canadian executive.” The AG was essentially arguing for unconstrained executive powers to impose war measures.

Justice Mosley rejected the AG’s proposition entirely, finding that cabinet is certainly owed deference—it needs to respond to a fluid situation quickly—but only within the constraints of the law and its objective thresholds. The Act was clearly aimed at this specific type of constraint and was designed to provide guardrails to the executive as they weighed invoking the tremendous powers delegated by the Act. There cannot be absolute discretion when invoking emergency powers.

Like Justice Rouleau, Justice Mosley notes that much of the breakdown that occurred during the Freedom Convoy was attributable not to an actual inability of the Ottawa police to properly enforce the rule of law, but rather to a breakdown in leadership and communications. Here, there is a sharp contrast in judgment. While Rouleau concluded in his report that this functional breakdown in policing could amount to an actual inability of existing laws and police powers to handle the crisis, Mosley says this is a misplaced justification for the Act and cannot furnish the Act’s requirement that it be used only as a last resort: “The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces.”

In her presser immediately following the release of the decision, Deputy Prime Minister Chrystia Freeland reprised her argument at the Rouleau Commission hearings that economic harm, in particular the border blockades at Coutts and Windsor—both of which were cleared before the Act’s invocation—posed a threat to national security: “I would just remind Canadians how serious the situation was when we took that decision….our national security, which includes our national economic security, was under threat.” Justice Mosley doesn’t accept this economic rationale, because “threats to the security of Canada” in the Act are explicitly stated to mean the same thing as it means under section 2 of the CSIS Act definition, and that is based on the government’s justification: “the threat or use of acts of serious violence against persons or property.” 

As a result, the judge rejected the government’s assertion that loss of trade, or economic harm, could constitute “serious violence.” The main question in assessing the reasonableness of cabinet’s decision, then, is whether “there were reasonable grounds to believe that the people protesting in Ottawa and elsewhere across Canada had engaged in activities directed toward or in support of the threat or use of acts of serious violence against persons or property.” There was nothing in the record to suggest this conclusion.

Intriguingly, the judge presented a possible legislative path for the government to take in response to his findings: amend the Emergencies Act to remove its link to the CSIS Act: “It may be that Parliament will wish to revisit the question of whether the CSIS Act definition […] adequately covers the different harms […]. This Court can only apply the law as it finds it.”

That would be a terrible mistake. The Act’s incorporation of an external security standard in place of the CSIS Act was intended by its drafters for exactly a circumstance that would eventually lead to a set of eyes to look for the threat of violence and come up short. It was designed to allow a second set of inputs, dialled into the issue of national security, but without the same political incentives as cabinet, to support cabinet’s conclusion that a national emergency existed.

In his review of the regulations and economic order imposed after the invocation of the Act—which allowed police extraordinary powers to stop peaceful protests, criminalize those protesting government policy without participating in blockades, and freeze bank accounts without a warrant, Justice Mosley found the regulations violated the right to free expression, because they captured constitutionally protected peaceful speech. He also found the economic order directing financial institutions to freeze bank accounts and disclose the financial information of any “designated person” (even without any reasonable or probable grounds to believe that person committed an offense) violated the right against unreasonable search and seizure. Neither violation was justified under section 1 of the Charter.

Finally, the decision is a happy vindication for the work of public interest litigants, such as the legal charity I am fortunate to direct, the Canadian Constitution Foundation. In his conclusion, Justice Mosley reflects with unusual candour about his priors going into the hearings. He admits that he “was leaning to the view that the decision to invoke the EA was reasonable.” But upon second-order thinking and careful deliberation “about the evidence and submissions, particularly those of [ civil liberties groups] the CCLA and CCF,” he was brought around to the sober reflection that invoking nationwide emergency powers cannot be countenanced in response to even extraordinarily disruptive and messy protest. 

Justice Mosley’s decision serves as an enduring interpretation of the Emergencies Act but also underscores the vital role of the judiciary in maintaining a careful balance between executive authority and constitutional rights, especially in times of real or perceived crisis.