Ottawa can’t get away with a ‘trust us, we had to’ defence of its use of the Emergencies Act

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What are we to make of the federal government’s decision to cite cabinet confidentiality in response to legal challenges over its invocation of the Emergencies Act during the trucker convoy?

Are we to infer, as is Prime Minister Justin Trudeau’s likely preference, that Ottawa has clear evidence that the situation met the threshold of a public-order emergency as outlined in legislation, but that disclosing that information would have a deleterious effect on cabinet confidence? That in weighing the options – of either waiving cabinet confidentiality to produce information proving that the first-ever use of the Emergencies Act was indeed justified, or maintaining cabinet protections to preserve members’ inclination to speak freely – that the Prime Minister has decided it’s somehow better that Canadians don’t know the context that justified bypassing Parliament to introduce sweeping new powers?

Or should we infer, rather, that the evidence that merited the use of the Emergencies Act simply isn’t there? Put another way: The government did not, and does not, have evidence of a threat to the security of Canada as outlined in Section 2 of the Canadian Security Intelligence Service (CSIS) Act – no proof of activities “intended ultimately to lead to the destruction or overthrow by violence” of the government of Canada, or information about threats or “acts of serious violence against persons or property” to achieve political ends – and that, as the Emergencies Act requires, it did not have reason to believe that the situation could not have been “effectively dealt with under any other law of Canada.” If the government had compelling evidence that its use of the legislative nuclear option was the only way it could have cleared downtown Ottawa and the remaining blockades (some blockades were cleared before the government invoked the Act), why would it not be falling over itself to produce it?

Politicians are poisoning our own democracy

The subject of the Rouleau inquiry? It’s the Trudeau government, not the truckers

At a special joint committee meeting Tuesday evening, Public Safety Minister Marco Mendicino defended his government’s use of the Emergencies Act by repeatedly emphasizing the harmful effects that the convoy’s prolonged unlawful activities had on businesses, trade and individuals. But lawlessness – even weeks-long, terribly loud, destructive and dangerous lawlessness – does not necessarily rise to the level of a national public-order emergency without meeting certain criteria. The onus is on the government now to explain to all Canadians, in detail, why it had no choice but to grant itself extraordinary powers.

There is reason to be incredulous that any information of substance will be revealed over the course of the public inquiry, which was announced by the government Monday. Mr. Mendicino declined to give a straight answer when asked whether his government would waive cabinet confidence if Justice Paul S. Rouleau, who is leading the inquiry, requested access to cabinet documents. The Order in Council outlining the parameters for the inquiry also instructs Justice Rouleau to ensure that the inquiry “does not jeopardize any ongoing criminal investigation” and to “take all steps necessary to prevent any disclosure of information to persons or bodies other than the Government of Canada that would be injurious to international relations, national defence or national security.” With this government’s record on transparency in mind – including its stonewalling of committee probes into the SNC-Lavalin scandal and efforts to conceal documents relating to the firing of two scientists from Winnipeg’s National Microbiology Laboratory – we should not be surprised if Ottawa ends up leaning on professed concerns about national security and/or continuing criminal investigations to avoid producing relevant materials.

At the time the Emergencies Act was invoked, the government relied heavily on a rather liberal interpretation of the CSIS Act’s “threats to the security of Canada” as including threats to Canada’s economic security as a result of blockades at border crossings. As recently reported by Global News, Statistics Canada data show that trade overall was not affected by delays, since deliveries were eventually made through alternate routes. And though there were certainly convoy participants who talked about overthrowing the government, Ottawa has not explained why Ontario police suggested they could pose a national security threat. (Mr. Trudeau’s intelligence adviser, Jody Thomas, said in March that it was “irrelevant” whether anti-government demonstrators had the actual ability to overthrow the government, which seems like a significant thing to dismiss unless we think it reasonable to invoke the Emergencies Act every time a chaotic clown convention descends on Ottawa.)

It is important that the public see the evidence justifying the use of the Emergencies Act because the public was subject to its extraordinary measures – the freezing of bank accounts without a court order, the prohibition on participating in gatherings that could have “reasonably be expected to lead to a breach of the peace,” and so on – and Canadians were promised accountability. “Trust us, we had to do it” is not a reasonable response from a serious government. If Ottawa was confident in declaring a public-order emergency then, it is obligated to disclose whatever evidence it has now. That is, as long as that evidence actually exists.

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