AUBUT: Two courts said Trudeau broke the law — will the Supreme Court let him get away with it?

 https://www.westernstandard.news/opinion/aubut-two-courts-said-trudeau-broke-the-law-will-the-supreme-court-let-him-get-away-with-it/72325

The Freedom Convoy may be gone, but the precedent set by the Emergencies Act invocation threatens every Canadian's right to protest.

 

Published March 30, 2026

 

In February 2022, the Canadian federal government made the historic decision to invoke the Emergencies Act for the first time since it was passed in 1988. That fact alone should have caused caution. This move was intended to provide the government with temporary, extraordinary powers to deal with protests in several locations across Canada that were causing significant disruptions, particularly in Ottawa. This was not an ordinary policing step. It was the use of extraordinary federal power against Canadians protesting federal policy. The convoy began in opposition to the vaccine mandate imposed on cross-border truckers and grew into a broader protest against pandemic restrictions and government overreach. All in an effort to get the attention of Ottawa and the ruling Liberal party. Whether one agreed with every tactic used or not, the grievance itself was political, public, and plainly directed at Ottawa. There was little public sign that Trudeau or his cabinet wanted to hear and answer the convoy’s grievances.

The contrast with Justin Trudeau’s treatment of other protests is hard to ignore. In June 2020, he joined an anti-racism protest on Parliament Hill and took a knee. During the Wet’suwet’en rail blockades that disrupted transport across Canada in 2020, he called for patience, dialogue, and mutual respect. Yet when the protest was aimed directly at his own government, the tone changed. Rather than negotiate, he thought it best to denounce.  Rather than being patient, he decided emergency power was warranted.

That contrast becomes even more serious when placed beside Canadian history. The Emergencies Act was enacted in 1988 to replace the old War Measures Act, which had been condemned as too broad and too dangerous to civil liberties. During the October Crisis of 1970, the FLQ kidnapped James Cross and Pierre Laporte, with Laporte eventually being murdered. That was a genuine campaign of political violence. Even then, the use of sweeping state power remained deeply controversial. Parliament later replaced the War Measures Act with the Emergencies Act precisely to prevent a repeat of that kind of overreach.

That is why the 2022 invocation remains so troubling. No comparable campaign of terror existed. There was disruption, obstruction, noise, and in some places, unlawful conduct. But after reviewing the record, both the Federal Court and the Federal Court of Appeal concluded that the government did not meet the legal threshold required to invoke the Act. In plain language, Ottawa used a law designed for true national emergencies in circumstances that did not lawfully justify it.

The legal challenge unfolded entirely within the Federal Court system. This is because the Emergencies Act is a federal law, and when citizens or organizations want to challenge a decision made by the federal government or its cabinet, they must go to the Federal Court, a court specifically designed to handle cases involving federal laws and the actions of federal officials.

The process began when several groups, including the Canadian Civil Liberties Association and the Canadian Constitution Foundation, filed for a judicial review. They argued that the government did not have a valid reason to use such extreme measures and that the situation did not meet the strict requirements set out in the law. They believed that the government’s actions were an overreach of power. The Attorney General argued that the protests were a serious threat to public order and national security. That was the government’s claim. But in a free country, allegations are not proof, especially when compared to the circumstances of the 1970 October Crisis. Canadians are presumed innocent until proven guilty in a court of law. The Cabinet did not need criminal convictions before acting. But it did need reasonable grounds to believe that the legal threshold in the Emergencies Act had been met. That is a lower standard than a criminal trial, yet it is still a real legal test. The government failed it. When the Emergencies Act was invoked on February 14, 2022, the government relied heavily on claims of threats and violence, especially from Coutts. Later criminal proceedings did not uphold the most serious allegations in the form first presented to the public. That does not mean nothing unlawful happened. It does mean the government acted on a picture that later proved less clear and less solid than first claimed.

Still, the real legal question was not whether the government could point to fear, tension, or isolated wrongdoing. It was whether the Cabinet had reasonable grounds to believe that a public order emergency existed and that ordinary laws were not enough. On January 23, 2024, Justice Richard Mosley ruled that the answer was no. The government appealed. 

The case was reviewed by the Federal Court of Appeal. The federal government argued that the initial ruling by Justice Mosley against them was based on a misunderstanding of the law. The Federal Court of Appeal does not hold a new trial where witnesses testify again; instead, a panel of judges reviews the written record and the legal arguments presented by both sides to determine if the lower court made a mistake in its legal reasoning. This process is essential because it allows for a higher level of scrutiny on whether the government acted within the strict boundaries set by Parliament when they created the Emergencies Act. If this court agreed with the original decision, the government's action would remain legally unreasonable; if they disagreed, they could overturn the lower court's ruling, which would then likely pave the way for a final appeal to the Supreme Court of Canada. The Federal Court of Appeal did hear the federal government’s appeal and dismissed it on January 16. It confirmed that the invocation of the Emergencies Act was unreasonable, beyond the government’s legal authority, and that parts of the measures infringed sections 2(b) and 8 of the Charter.

That is what makes the next step so important. On March 17, the federal government sought leave to appeal to the Supreme Court of Canada. The Court must now decide whether this case needs another hearing after two lower courts have already ruled that the Act was used unlawfully. The argument for hearing it is simple: the Court may wish to give final guidance on the limits of emergency power. The argument against hearing it is just as simple: two courts have already drawn a clear line, and reopening the case risks weakening that line instead of strengthening it. 

Add to this the problem of appearance. In comments published on April 9, 2022, Chief Justice Richard Wagner described what happened on Wellington Street as “the beginning of anarchy” and said some people had decided to “take other citizens hostage” and “take the law into their own hands.” Those remarks do not decide the case on their own. But they do raise a fair question about whether the Court should be especially cautious in taking this appeal at all, and whether Wagner should sit on it if leave is granted. At the very least, the Court should avoid any step that makes Canadians think the result was decided before the hearing began. 

The issue is now plain. In Canada, people are presumed innocent until proven guilty. Allegations, rumours, and political fear are not enough. The old War Measures Act became a warning about what happens when a government reaches too quickly for extraordinary power. The Emergencies Act was supposed to be the lesson learned. It was supposed to impose restraint, raise the bar, and make sure that what happened in 1970 could not be repeated under a different name.

Yet in 2022, that line was crossed. Ottawa reached for a law meant for true national emergencies and used it against a political protest that two courts have now found did not meet the legal threshold. That is why this case matters far beyond one convoy, one prime minister, or one moment of national anger. If the safeguards written into the Emergencies Act can be pushed aside when they become inconvenient, then they are not safeguards at all. They are window dressing. The Supreme Court should not blur that line. It should leave it in place, because to do otherwise would be “An Act Too Far.”

 

AUBUT: A path forward - Canada’s ‘postnational’ experiment is failing

 https://www.westernstandard.news/opinion/aubut-a-path-forward-canadas-postnational-experiment-is-failing/71973

From Justin Trudeau’s identity vacuum to pandemic overreach, how Canada lost its cultural core and why restoring fairness and the rule of law is the only way back.

 

Published March 22, 2026

 

In December 2015, soon after becoming Canada’s prime minister, Justin Trudeau described Canada to The New York Times Magazine as a “postnational” state, adding: “There is no core identity, no mainstream in Canada.” He then pointed to shared values such as openness, respect, compassion, willingness to work hard, to be there for each other, and to pursue equality and justice. 

He intended that as praise, but for me, I heard it as a warning. There is no such thing as a country without a core identity, as that is what makes every country unique. Any country that has forgotten its culture or has been taught to be ashamed of it is in a dangerous condition because it leaves citizens unmoored and leaves institutions free to treat people as inputs to be managed rather than citizens to be served.

For most of my life, being Canadian meant something that needed no explanation. It meant kindness for others because in a hard country, decency is not optional. It meant cooperation because winter does not care about ideology. It meant strength and fortitude because distance and climate punish weakness. It meant a quiet confidence in law because fairness is the only authority that can hold a vast land together. No one was supposed to be above the law, and the law was supposed to embody fairness rather than serve as a tool of politics.

Those traits were not sentimental but the practical needs of our nation. Neighbours helped neighbours because they had to and because everyone was expected to carry their share. “Pay it forward” has obvious benefits in a hard land. You just never know when you will be the one needing help. When that expectation is present, kindness does not become naivety, and cooperation does not become coercion. It becomes mutual reliability, which is the true foundation of a free society.

If you want a cultural snapshot, think of the instinct Canadians once took for granted: when trouble hits, you help. Many Canadians saw that spirit captured in stories like Come From Away. It felt familiar because it was familiar. It matched what many of us were raised to believe about ourselves. You can debate whether we always lived up to that ideal, but the ideal mattered. It set a standard. It was who we were. It was core to being “Canadian.”

A key part of that standard was the rule of law. In the British tradition, law is supposed to bind rulers and ruled alike. Canada was not founded on revolution, but it was founded on the idea that lawful authority is legitimate only when it is restrained, fair, and accountable. That is why Canadians admired institutions that appeared to practice restraint and impartiality. When citizens believe the law is fair, they will accept hardships, disagreements, and even mistakes. When they believe the law is selective, legitimacy collapses quickly.

Canada’s political evolution has also always contained an unresolved tension between local life and distant power. Municipal government is the most responsive because consequences are immediate and visible. The provincial government is more distant but still tangible. Federal power, in a country as large as Canada, is the most remote and therefore the easiest place for unaccountability to hide. As the population has concentrated in a few large metropolitan regions, federal incentives have increasingly aligned with those regions, leaving many rural and smaller urban communities feeling ignored.

Until the 1990s, many Canadians still believed that, whatever our differences, the system broadly worked and broadly cared. The 1980s were hard economically, but hardship did not automatically breed cynicism. People endured because they believed the rules were still the rules and that effort still mattered. The 1990s changed the tone. Canadians began to notice that moral language was increasingly used to justify administrative control, and that important choices were being made in ways that felt insulated from ordinary accountability.

A concrete example of Canada’s incremental shift toward control is the firearms policy. Handguns have required registration in Canada since 1934, long before the current era. In 1995, the Liberal government passed Bill C-68, the Firearms Act, expanding licencing and requiring the registration of all firearms, including non-restricted long guns. The long-gun registry component was later repealed, but the 1995 moment still mattered symbolically because it signalled a widening assumption that citizens must be tracked and licenced, not merely governed by clear and equal law.

Where the downward slide became impossible to ignore for many Canadians was 2020. The COVID-19 period became a stress test of Canadian civic culture. Reasonable people can disagree about which public health measures were necessary, which were excessive, and which were mistakes made in real time. But there is a deeper issue that cannot be waved away: large numbers of Canadians came to believe that a fundamental line was crossed, and that the crossing was morally justified by officials and socially enforced by neighbours.

For clarity, I use the words “vaccine” and “vaccination” only in their older sense: a product that stimulates the immune response, is safe, and is effective. Where those criteria are not met, I will not use language that implies otherwise.

For decades, Canadians were told that bodily autonomy and personal choice are bedrock principles. Yet during the pandemic, vaccine status became a social sorting mechanism. Access to travel, employment, and ordinary participation was restricted for many people, and the moral justification often shifted from public health to moral condemnation. For those who declined “vaccination,” the experience was not simply a policy disagreement. It felt like purposeful targeting. It felt like a country that had abandoned its own ethic of fairness and had replaced it with permission to punish dissenters. For many citizens, that was the Rubicon moment. A line that should never have been crossed was crossed.

That rupture did not end when restrictions eased. Trust does not bounce back on command. Once a society learns that it can exclude a segment of its own citizens under the banner of safety or virtue, it has taught itself a habit that will be used again. The lesson is not that Canada became “fascist” overnight. The lesson is that a society can become comfortable with unequal treatment under the law, and then deny it happened.

The convoy and the federal response amplified this rupture. Again, reasonable people can differ on the protests themselves. But the legal and institutional aftermath is instructive. On February 17, 2023, the Public Order Emergency Commission released its final report and concluded that the threshold for invoking the Emergencies Act had been met. On January 23, 2024, the Federal Court ruled that there was no national emergency justifying the invocation of the Act, that the decision was unreasonable and ultra vires, and that certain measures infringed Charter rights. In law, the term ultra vires, meaning ‘beyond the powers,’ describes actions taken by the government outside the authority granted to it. In a system governed by the rule of law, even well-intentioned actions are invalid if the power to act was never lawfully granted.

On January 16, 2026, the Federal Court of Appeal dismissed the government’s appeal and upheld that the invocation was unreasonable and ultra vires, and that Charter infringements occurred.

Two things can be true at once. An inquiry can find that a government acted within a broad threshold, and courts can later find that the legal standard was not met and that rights were infringed. What matters for civic cohesion is what happens next. When citizens see extraordinary measures used, see courts find those measures unlawful, and then see no meaningful accountability or acknowledgement, trust corrodes further. The rule of law is not merely about winning a case. It is about the culture of restraint that prevents extraordinary powers from becoming normal tools.

This is the point at which many Canadians ask the hardest question: Can Canada still be saved, or have we gone too far?

There are Canadians, especially in regions that feel persistently ignored, who now argue that Canada is structurally beyond repair. They point to the dominance of Toronto, Montreal, and Vancouver in federal outcomes, and to the reality that a critical mass of population and economic power is concentrated far from where many Canadians live and work. They argue that the distance between the governed and governors has become too large, and that the federation has become a machine that serves concentrated interests while using national unity language as cover.

That diagnosis should not be dismissed. But neither should the risks of disintegration. History offers examples of peaceful transformation and examples of violent fragmentation. A Velvet Revolution is possible when people share enough moral centre to demand change without turning neighbours into enemies. Balkanization becomes likely when politics collapses into competing identities and mutual suspicion. Canada’s best hope is to avoid both nihilistic fragmentation and coercive centralization by rebuilding a shared standard of fairness and responsibility.

So what is the path between where we are and where we need to be?

It begins with the recovery of culture, not as ethnicity or ideology, but as civic ethic. Canada does have a culture. It is the ethic of kindness joined to responsibility, cooperation joined to independence, and law joined to fairness. If Canadians stop believing that ethics is real, the country becomes only an administrative zone. If Canadians recover it, the country becomes governable again.

Restoration requires four practical commitments.

First, restore equal application of the law. Not a perfect law, but a law that is visibly impartial and binds those who wield it. Selective enforcement and double standards are poison in a large country. If citizens believe rules apply only to the governed, they will withdraw their consent.

Second, restore subsidiarity. Decisions should be made as close as possible to the people affected. This is not an argument for chaos. It is an argument for accountability. The closer the government is to citizens, the harder it is for officials to hide behind abstractions, and the easier it is for citizens to see and influence outcomes.

Third, restore dignity through responsibility. Compassion is not the removal of burden. It is the provision of fair conditions under which people can carry it. A society that replaces responsibility with dependency does not become kinder. It becomes resentful, brittle, and easily manipulated.

Fourth, restore a Canadian story that is honest and usable. Not propaganda, not shame, but a narrative that explains why a hard country required mutual reliability, why the rule of law mattered, and why fairness was once understood as the precondition for peace.

If Canadians can do these things, Canada can be saved without destroying itself. If Canadians cannot do these things, then the pressure for radical options will grow, whether anyone wants that or not. The choice is not between comfort and change. The choice is between deliberate reform and eventual rupture.

The first step is the same step any recovering alcoholic must take: admit the problem. Canada’s problem is not that we disagree. Canada’s problem is that we no longer share a standard of fairness and restraint that makes disagreement survivable. The path forward is to restore that standard, and with it, to restore belief in ourselves.

 

AUBUT: The province without treaties — how BC broke Canada’s land compact

 https://www.westernstandard.news/opinion/aubut-the-province-without-treaties-how-bc-broke-canadas-land-compact/71915

A century of delay, judge‑made law, and political avoidance have left BC at the breaking point of Canada’s promise of legal and territorial certainty.

 

Published March 18, 2026 

 

British Columbia sits at the sharpest edge of Canada’s unfinished land question. Much of the rest of the country moved, however imperfectly, through treaties that exchanged claims of title for reserves, annuities, harvesting rights, and later modern agreements. BC largely did not. Its historic treaties were limited mainly to the 14 Douglas Treaties on parts of Vancouver Island and Treaty 8 in the northeast. The result was a province with reserve lands but, in most places, without the wider territorial settlement that treaties elsewhere were meant to provide. Delay, uncertainty, and litigation followed, where a more orderly settlement might have been possible.

The lack of treaties in BC was not simply an accident. Treaty-making did not continue after 1854, and the colonial government under Joseph Trutch moved away from James Douglas’s earlier approach. Historical summaries from federal and provincial sources acknowledge that BC was unwilling to recognize First Nations land rights in the broader way adopted elsewhere, while Trutch reduced reserve lands and denied Aboriginal Title. The consequence was that BC continued to create reserves while avoiding the larger question of territorial settlement.

It also explains why reserves in BC cannot be taken as proof that the title was resolved. For most of the province, reserves were not created by treaty. The Indian Act defines a reserve as land vested in the Crown and set apart for the use and benefit of a band. In BC, the constitutional basis after Confederation was Article 13 of the Terms of Union, and the Supreme Court has described reserve creation there as a federal-provincial process requiring Crown intention and practical steps. Reserve creation and treaty settlement were separate matters. BC pursued the former while postponing the latter.

I am a geologist, not a lawyer, and I do not live in British Columbia. That does not place these questions beyond my reach. It means I have had to approach them the way I approach any difficult subject: by asking questions, following the evidence, and trying to understand how the present situation came to be. One question in particular has stayed with me for years. Why does British Columbia, unlike so much of the rest of Canada, have so few treaties and so little to show for more than a century of delay in resolving that fact?

Section 35 of the Constitution Act, 1982 changed the legal terrain by recognizing and affirming existing Aboriginal and treaty rights, but it did not define them in operational terms. Much of the working law was then developed by the courts. Canadian common law allows judges to develop doctrine through precedent, and that is what occurred with fiduciary duty, honour of the Crown, and the duty to consult. Those phrases do not appear in section 35 itself. The Supreme Court developed them through cases such as Guerin, Sparrow, Haida, and Mikisew. In legal method, that is, common-law development. In political terms, it means that much of the machinery now governing land, consultation, and reconciliation was judicially constructed rather than clearly enacted by legislators.

The present conflict in BC is where that unfinished history meets modern judge-made doctrine. In August 2025, the BC Supreme Court in Cowichan Tribes v. Canada recognized Aboriginal Title over about 732 acres in southeast Richmond. Richmond described the ruling as placing Aboriginal Title ahead of fee simple ownership, and legal summaries note that the court rejected the argument that Crown grants of fee simple had permanently displaced Aboriginal Title. Instead, the court treated Aboriginal Title and fee simple as capable of coexisting, though not without tension, and left reconciliation to be worked out where they conflict.

That matters because fee simple has long been treated as the strongest ordinary private estate in land. BC’s Property Law Act says land remains an estate in fee simple in the owner, and the Land Title Act says an indefeasible title is conclusive evidence that the registered owner is entitled to an estate in fee simple, subject to listed exceptions. Fee simple is not imaginary, but neither is it absolute. It exists under statute, under the Crown grant, and under the possibility of expropriation or overriding constitutional limits. The Cowichan ruling tests whether an ordinary registered title can remain untouched when an Aboriginal Title claim succeeds over the same land.

BC’s long failure to settle title has therefore become a conflict among multiple rights-holders, not simply between indigenous claimants and the Crown. Richmond appealed. Tsawwassen First Nation also appealed, arguing that the ruling affected land and fishing areas within its own treaty and traditional territory. Then, on February 20, 2026, Canada and Musqueam signed agreements intended to recognize Musqueam’s rights and title within Musqueam territory and deepen Musqueam’s role in fisheries and stewardship. Within days, Squamish and Tsawwassen objected that the materials appeared to overlap with their own territories or treaty lands. Once the title is recognized incrementally, bilaterally, and without comprehensive settlement of overlaps, an advance for one group is easily seen as a threat by another.

Government delay has compounded this problem. Canada and BC have long acknowledged that treaties are the main instrument for achieving certainty, yet BC has reached very few of them relative to the scale of unresolved claims. Canada’s comprehensive claims policy since 1973 has aimed at certainty in ownership, use, and management of lands and resources. The made-in-BC treaty process began in 1992 for the same reason. Governments have known for decades what the problem was.

This is also the setting in which equal citizenship becomes harder to describe in simple terms. Canada now operates with differentiated legal regimes. Reserve lands are held by the Crown for the use and benefit of bands rather than in ordinary fee simple by individual residents. Aboriginal and treaty rights are constitutionally protected in ways that ordinary property rights are not. Some modern treaty nations have moved beyond parts of the reserve framework into treaty settlement lands and self-government structures, while others remain under the Indian Act. Those differences are real and substantial, and they are increasingly difficult to reconcile with a single understanding of citizenship, property, and jurisdiction.

That tension has been sharpened further in British Columbia by the province’s adoption of the Declaration on the Rights of Indigenous Peoples Act in 2019. The Legislature did not literally transfer law-making authority to the United Nations, but it did require the provincial government to take measures to align BC laws with the UN Declaration, and it authorized agreements involving joint statutory decision-making and, in some cases, indigenous consent before certain statutory powers are exercised. BC has therefore chosen to use an international declaration as a framework for provincial law and policy. That raises a serious question about democratic accountability and about how much authority a province should anchor in standards developed outside Canada’s own legislative process.

The harder question is what fairness now requires. It cannot mean pretending the problem does not exist. It also cannot mean allowing governments or courts to proceed with one bilateral arrangement at a time while neighbouring First Nations, third-party owners, and municipalities are left to guess at the legal effect. A fair path forward would require an honest recognition that BC left title broadly unsettled, a comprehensive process for dealing with overlapping claims before recognition instruments are signed, statutory rules for the treatment of good-faith fee simple owners who acquired land under the ordinary land-title system, and movement away from indefinite reserve dependency toward clearer local accountability, whether through modern treaties, self-government arrangements, or other legislated structures that define ownership, jurisdiction, taxation, and services in plain terms. The objective should be certainty.

Has Canada backed itself into a corner? To a degree, yes. Section 35 cannot be altered by ordinary legislation, and Parliament cannot broadly amend the Constitution on its own. At the same time, the courts have built doctrines around section 35 that governments now treat as operational law. There is therefore no simple legislative exit. That does not make a solution impossible, but it does mean the solution must be political, legislative, and negotiated. Comprehensive settlements, legislation clarifying the effect of title recognition on third-party interests, and a willingness to confront overlapping claims before they become crises would all be part of any serious response.

The sovereignty issue should also be stated accurately. King Charles III is not Canada’s head of state as the sovereign of Great Britain. He is the King of Canada. Canada’s difficulty is not foreign rule. It is domestic constitutional coherence. A country can live with unresolved tensions for a long time, but not indefinitely if land ownership, jurisdiction, consultation, title, and competing indigenous claims remain unsettled in major regions.

That is the central point. BC’s refusal to settle the title did not remove the issue. It deferred it. The courts later gave legal force to unresolved claims, but without creating a comprehensive settlement mechanism. The conflict is no longer abstract. It affects fee simple owners, municipalities, ports, resource projects, treaty nations, non-treaty nations, and overlapping claimants. A just path forward is still possible, but only if Canada stops treating reserve creation as though it settled title, stops relying on courts to finish what governments declined to do, and treats certainty in land and jurisdiction as a national necessity rather than an indefinitely postponed task.