Adam Goldenberg is a partner at McCarthy Tétrault LLP and co-author of Emergency Law in Canada.
Did the Trudeau government act lawfully when it invoked the Emergencies Act on Feb. 14, 2022? That question dominated the hearings before the Public Order Emergency Commission in the fall. Unsurprisingly, many expect the commissioner – Justice Paul Rouleau – to provide his answer in his report, which must be tabled in Parliament by Feb. 20.
Justice Rouleau should not answer that question. The Ontario judge should instead leave it to the federal courts and to Parliament to decide whether the government acted with proper statutory authority. His mandate, under the act, is limited to inquiring “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” This mandate does not extend to opining on whether the Cabinet “believes, on reasonable grounds, that a public order emergency exists” – the legal threshold for invoking the government’s extraordinary powers under section 17(1) of the act.
Though he is a judge, Justice Rouleau is not presiding over the inquiry as commissioner in his judicial capacity – the two are distinct functions. Neither the Emergencies Act nor the Inquiries Act requires a commission of inquiry to be led by a judge; it would have been perfectly legal for the government to appoint a commissioner who was not even a lawyer. Other provisions of the Emergencies Act require certain roles to be performed by members of the judiciary, but section 63 (the public inquiry provision) contains no such requirement.
If Justice Rouleau, in his role as commissioner, provided an opinion on the lawfulness of the government’s invocation of the Emergencies Act, he would step on another judge’s toes: the Federal Court judge who, sitting in their judicial capacity, will ultimately be tasked with reviewing the emergency declaration. Under the Federal Courts Act, the Federal Court has exclusive jurisdiction (subject to certain exceptions) to judicially review decisions made by the Cabinet under federal laws.
Two civil liberties groups have already commenced judicial review proceedings against the government. If Justice Rouleau addressed the legal question at the heart of these judicial reviews, he would preempt consideration of that question by the court to which Parliament assigned the exclusive jurisdiction to decide it.
Not only would this be duplicative, but it would also invite significant confusion. Justice Rouleau’s opinion would not be binding on the Federal Court, and so Canadians could end up with two contradictory answers to the question of whether the government followed the law. His determination of this question would also itself be subject to judicial review in the Federal Court. The result could be yet more litigation, which would only further complicate the court’s task.
However he proceeds, Justice Rouleau will set a precedent: his will be the first inquiry report ever made under the Emergencies Act. If he preempts the Federal Court and opines on whether the government lawfully declared a national emergency, future commissioners under the Act will feel empowered, or perhaps even compelled, to do similarly.
This is problematic because, while Justice Rouleau’s qualifications, objectivity and impartiality cannot be disputed, the next commissioner may not be a judge, or even a lawyer. A commissioner remains the government’s hand-picked decision maker, appointed by the Cabinet. Executive appointees should not tread on terrain reserved for the Federal Court. That is what Justice Rouleau would be doing if he pronounced on whether the government followed the law.
In appointing Justice Rouleau to lead the inquiry, Cabinet directed him “to set out findings and lessons learned, including on the use of the Emergencies Act and the appropriateness and effectiveness of the measures taken,” and also “to make recommendations … on the use or any necessary modernization” of the law. This is a warrant to make factual findings and policy recommendations, not to reach a conclusion on the lawfulness of last year’s emergency declaration.
Justice Rouleau should heed this direction. He simply should not answer the question that preoccupied media coverage of the commission’s hearings. Instead, he should set an example for future inquiries by respecting the limits of his statutory authority and allowing others to determine whether the government did the same.