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opinion

David Schneiderman is a professor of law at the University of Toronto.

Justice Paul Rouleau’s conclusion that the government had satisfied the legal threshold for invoking the Emergencies Act in response to last year’s truck convoy protests could have consequences far beyond the events of last February.

Because the emergency powers in the act are meant to be used sparingly, the government must satisfy two principal criteria to invoke a public order emergency. First, there must be no other law of Canada that can address the emergency. Second, the emergency must constitute a threat to the security of Canada, as defined in the CSIS Act. On both grounds, Justice Rouleau accepted that the government acted in compliance with the law – even when the facts and arguments raised serious doubts and concerns.

On the question of whether no other laws would suffice, Justice Rouleau did not explain how the blockade in Windsor, Ont., was resolved before powers under the Emergencies Act were invoked, and how the clearing of the blockade in Coutts, Alta., was nearly complete. If provincial and federal laws were sufficient to address those protests, what more was needed to address the protest on Parliament Hill?

Police officials at the inquiry repeatedly testified that the powers granted to them by the Criminal Code would have sufficed to address the emergency. Many of these powers remained unused in Ottawa. Residents should not have needed the government to rely on emergency powers; the overwhelmed Ottawa Police Service required only reinforcements to enforce Canada’s criminal laws. Justice Rouleau’s conclusion enables government to invoke extraordinary powers meant only as a last resort when they are not needed.

Justice Rouleau also treated the question of whether there were threats to the security of Canada too casually. These must have concerned threats directed toward or in support of acts of serious violence to achieve a political or ideological objective. Here, Justice Rouleau pointed to anonymous threats against individual public servants. In addition, he relied upon the “memorandum of understanding” issued by convoy organizers that was later retracted.

Five key take-aways from the Emergencies Act inquiry’s final report

Individual threats of violence are serious enough to warrant police surveillance, arrests and charges under the Criminal Code. The convoy document, on the other hand, exhibits a serious misunderstanding of how government in Canada is structured: It called upon the Senate and Governor-General to commit to withdraw vaccine mandates. This required a civics lesson, not emergency powers.

More dismaying is Justice Rouleau’s acceptance that the CSIS Act definition of threats to national security had been met because the government believed it had been met. CSIS determined otherwise, undertaking threat assessments and communicating its views to the Prime Minister, the Privy Council Office and a cabinet committee. Yet high-ranking public officials testified that the threshold had been met because the definition of threats to national security is allegedly broader under the Emergencies Act than under the CSIS Act. Justice Rouleau rightly concludes that this view is legally incorrect, but then states that the CSIS evaluation could not be determinative. “Different decision makers,” Justice Rouleau writes, “... can come to different conclusions.”

We are left in the dark about the grounds upon which the government disagreed with CSIS. It is particularly troubling as the legal opinion upon which cabinet relied was not disclosed.

A refusal to disclose confidential documents typically leads a decision maker to assume the party keeping things secret has something to hide. To its credit, the government waived cabinet confidentiality for many, but not all, documents. It did not do so regarding this critical legal question. It is fair to assume, then, that the legal opinion was not helpful to the government’s case. Justice Rouleau, however, refused to draw any negative conclusion from this refusal to disclose.

In respect of these threshold legal questions, the Rouleau commission report is seriously inadequate. By deferring to the government’s claims without much scrutiny, Justice Rouleau has lowered the very high threshold for invoking a public order emergency. This precedent-setting exercise, regrettably, makes it easier for future governments to invoke this authority despite the best efforts made by the drafters of the Emergencies Act.

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