Justice Rouleau’s deferential report is not the final word on the Emergencies Act | The Hub -Joanna Baron:
February 21, 2023 - "Commissioner Paul Rouleau’s report on the federal government’s invocation of a public order emergency ... was produced on an exceptionally tight timeline following six weeks of sittings and clocks in at over 2,000 pages, including exhibits. The nub of the report sees the judge concluding that Cabinet was justified in invoking the Emergencies Act on February 14, 2022: 'There was credible and compelling evidence supporting both a subjective and objective reasonable belief in the existence of a public order emergency. The decision to invoke the Act was appropriate.' Its tone is cautious and measured. It is an exercise in pointed diplomacy and balancing, but perhaps wanting for clarity.
"First: for Rouleau to have arrived at his conclusion, given the posture of federal Cabinet witnesses at the hearings, implies an extraordinary amount of deference to assiduously shielded government decision-making. The entire basis of Cabinet’s concern that the protests had evolved into an unmanageable situation remained opaque to the Commission. Attorney-General Lametti claimed that Cabinet, in invoking the Act, was acting on the basis of a legal opinion that held that 'threats […] to the security of Canada', were met within the meaning of the Act. It was necessary to refer to this legal opinion because the overwhelming evidence from actors who were receiving on-the-ground intel from Ottawa was the contrary.
"During the hearings, we heard that the director of CSIS had concluded the Act’s threshold of 'threats to the security of Canada' was not met. We also heard leadership of the Ottawa Police Service, the Ontario Provincial Police, and the RCMP, state that existing criminal law tools were sufficient. No other threat assessment or assessment of the inadequacy of existing legal authorities was performed independently of the country’s law enforcement. There was virtually no substantive basis upon which Cabinet could have concluded that the circumstances in Ottawa met the threshold for invoking the Act....
"A requirement for invoking the Act is that it is a measure of last resort, specifying that 'The emergency could not be effectively dealt with by any other federal law.' (Emphasis added.) The report emphasizes the word 'effectively', calling it an “important modifier”, and seems to confuse this requirement that all other avenues of action be exhausted with a sort of argument of convenience....
"Evidence of law enforcement was that, at best, the boost provided by the Emergencies Act was helpful but did not substantively alter a plan to clear the protests that already was in place.... Laws under the Criminal Code gave law enforcement the tools it needed — and ultimately used — to clear disruptive protests, compel tow truck operators to remove illegally parked trucks, and call in reinforcement police forces from across the country.... Not a single law enforcement witness testified that they requested the invocation of the Act, nor that they needed more tools than those already at their disposal....
"Finally, the report wholly accepts the federal government’s coup de grâce legal argument — that ... 'two different decision-makers, each interpreting the same words in the context of different statutes, can reasonably come to different conclusions as to whether the threshold is met.' This argument is dangerously misguided..... The report accords Cabinet a wide ambit of reasonableness in invoking the Act that is thoroughly unsupported by the statute’s strict definition. The justice doesn’t quite find that an actual situation presenting threats to national security had crystallized: in his conclusion, he writes that 'the situation [Cabinet] was facing was worsening and at risk of becoming dangerous and unmanageable' ... — and, fearful of that whiff of danger, Cabinet was reasonable in invoking emergency powers.
"This scope of latitude and deference is the appropriate standard for assessing on-the-ground, contingent actions of police — who, indeed, we rightly accord wide operating bandwidth. However, the same standard is wholly inappropriate for a sitting, properly briefed Cabinet’s sober deliberations in the face of a well-established and rightfully high legal threshold for invoking extraordinary powers to detain peaceful protestors, freeze bank accounts without due process, and suspend insurance throughout all of Canada.
"A federal court judicial review, brought independently (unlike the Commission, which was convened and appointed by government), of the invocation of the Act remains pending. That decision will carry the binding force of law, unlike the Commission report. The matter is not yet finished, and there may yet be consequences for the government’s actions."
Joanna Baron is Executive Director of the Canadian Constitution Foundation, a legal charity that protects constitutional freedoms in courts of law and public opinion.
Convoy organizer lawyer Keith Wilson reacts to the Emergencies Act inquiry report, CPAC, February 18, 2023:
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