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opinion

Commissioner Paul Rouleau, of the Public Order Emergency Commission, during the opening day of hearings, in Ottawa, on Oct. 13.Adrian Wyld/The Canadian Press

Leah West is an assistant professor at the Norman Patterson School of International Affairs at Carleton University. David Schneiderman is a professor of law at the University of Toronto.

A curious thing is happening before the Rouleau Commission inquiry into the use of the Emergencies Act. Federal government witnesses are testifying that the phrase “threat to the security of Canada” in the Emergencies Act does not mean the same thing as “threats to the security of Canada” in the Canadian Security Intelligence Services (CSIS) Act. This is in spite of the fact that the Emergencies Act states unequivocally that it relies on the CSIS Act definition. This peculiar position led the director of CSIS to support the invocation of a public order emergency while assuring cabinet that no threat to the security of Canada existed.

How did this happen? CSIS Director David Vigneault testified that lawyers from the Department of Justice advised him that in the context of the Emergencies Act, the definition is broader.

This belies both the text of the statute and everything we know about the drafting of the Emergencies Act.

Under the Emergencies Act, three threshold criteria must be met for the government to declare a public order emergency. First, the invocation of emergency powers is contingent on there being no other laws available to respond effectively to the emergency. Emergency powers, in other words, are only available as a last resort. This is true for the declaration of any of the four types of emergencies spelled out in the act.

The evidence from most of the relevant actors appearing before the Rouleau Commission, including the RCMP Commissioner, is that not all legal tools were exhausted before the declaration of a public order emergency in February 2022. The additional measures available following the declaration, the OPP Commissioner explained, were helpful but not necessary to resolve the blockades.

Second, in the specific context of a public order emergency, these extraordinary powers are available only if the emergency arises from a threat to the security of Canada and is so serious as to be a national emergency (another defined term). The text is explicit: when the phrase “threat to the security of Canada” is used in reference to a public order emergency, it is assigned the same meaning as in section 2 of the CSIS Act. Other pieces of national security legislation, such as the Security Offences Act, make the exact same move.

What falls within the CSIS Act definition? Section 2 includes four broadly conceived but specific threats: espionage or sabotage, foreign-influenced activities, subversion and terrorism/violent extremism. The final one, which the government relied upon to invoke the Emergencies Act, includes activities anywhere in the world, directed toward or in support of acts or threats of serious violence. Those acts or threats can be directed at either persons or property so long as they are done to achieve a political, religious or ideological objective. But as the commission has heard, CSIS made it clear to the government that the convoy protests did not meet its definition of a threat to the security of Canada.

When drafted, the purpose of the Emergencies Act was to narrow the availability of emergency powers previously available under the discredited War Measures Act. For this reason, many criticized the incorporation of threats to security from the CSIS Act. They argued that CSIS’s definition was too sweeping given the types of powers unleashed by declaring a public order emergency. Perrin Beatty, the defence minister at the time and the sponsor of the Emergencies Act, reassured those critics that what would trigger a public order emergency was far narrower than what falls within CSIS’s mandate. To be a public order emergency, not only does a threat to the security of Canada need to exist, it must also rise to the level of a national emergency, meaning it has to be urgent, critical and temporary in nature; seriously threaten the lives, health and safety of Canadians; and exceed the capacity or authority of the provinces to deal with it. Beatty referred to this as a “double test.”

But in the past week, the CSIS director, the clerk of the Privy Council and the National Security and Intelligence Advisor testified that cabinet is of the opposite view: the CSIS Act definition is too narrow, and the Emergencies Act demands a more contextual understanding of national security threats. Relying on this broader interpretation, cabinet determined that the freedom convoy protests met the definition of threat to the security of Canada.

Yet the Emergencies Act requires as a starting point that a threat to the security of Canada as defined by the CSIS Act not only exists – but that the national emergency arises from that threat. The evidence provided by the CSIS witnesses on Monday made it clear that no such threat existed. Instead the testimony is that the failure to resolve the blockades created the potential for serious violence. They’ve flipped the test on its head.

The worst part is we have no idea about the reach of cabinet’s new definition. What else could give rise to a public order emergency under their interpretation? We know it is “broader,” but we have no idea how broad because witnesses have been unable to articulate how cabinet and its legal advisers came to their reasoning in the first place. This move has made the Emergencies Act susceptible to the very abuse it was intended to prevent. The dangerous overreach that was feared at the time it was drafted is not only present, but expanding.