The Emergencies Act has a test of necessity, not of convenience

In February, as the trucker protest malingered on, the Ottawa police, the Ontario Provincial Police and the RCMP had a plan to clear the protestors out of the parliamentary precinct. RCMP Commissioner Brenda Lucki described it as an “amazing” plan, according to the closing submission from the Ottawa Police Service.

Speaking of amazing things: Commissioner Lucki did not speak up during the critical cabinet meeting the night before the government invoked the Emergencies Act. And neither Prime Minister Justin Trudeau nor anyone else around the cabinet table thought to ask Canada’s top cop whether there was a plan, using existing laws, to clear Ottawa’s streets.

Those dual failures are key points in the debate over whether the government was justified in the extreme step of invoking the act, as well as a critical consideration for Justice Paul Rouleau as he works on his report to Parliament, to be delivered in February.

The government must clear two thresholds under the Emergencies Act. First, it must have reasonable grounds to believe that a public-order emergency exists, based on the definition of threats to the security of Canada contained in the Canadian Security Intelligence Service Act. Second, the emergency must be a situation that “cannot be effectively dealt with under any other law of Canada.”

Last week, this space questioned whether the federal government had met the first part of that test. Those doubts have not been dispelled by Ottawa’s closing submission to the commission, made public this week, which argues for wide latitude in determining what constitutes a national security threat.

Even if Justice Rouleau accepts that argument, the second test remains: Could existing Canadian laws have dealt with the emergency effectively? (That last word is important. It’s not enough that a law could theoretically, at some point, remedy the situation. It needs to be of practical and immediate value.)

The closing submissions from the Ottawa police and the Ontario Provincial Police, also released this week, speak directly to that question, although neither police force takes a position on whether invoking the Emergencies Act was necessary.

The Ottawa police say that all three police forces had signed off on the plan as of Feb. 13, ahead of meetings of the Incident Response Group and later, of the full cabinet. However, Commissioner Lucki did not share that plan in either meeting.

In his testimony, Prime Minister Trudeau downplayed the importance of Commissioner Lucki’s reticence, saying that the document from the three police forces “was not even, in the most generous of characterizations, a plan.”

Yet Mr. Trudeau also conceded he had not actually read the plan. And Commissioner Lucki had advised Public Safety Minister Marco Mendicino’s chief of staff in an email sent just ahead of the cabinet meeting that not “all available tools” under existing law had been exhausted.

Ottawa police also point out that there was a plan, before the act was invoked, for towing away the large vehicles at the core of the occupation, complete with a list of firms that could do the job.

Similarly, the OPP says the plan to end the protest was drawn up under existing laws. The tools provided by the Emergencies Act “may not have been necessary, [but] they were useful.”

Why does any of this matter? That police had a list of tow truck companies, that the PM did not leaf through the pages of a police plan – those might seem like picayune details.

But put together, they paint a picture of a government determined to invoke the act without taking the time to properly consult with police forces, and dismissive of the competence of police to execute their duties.

On the face of it, existing laws were sufficient to oust the protestors. Indeed, the police used the broad plan drawn up before the invocation of the Emergencies Act to do so.

It is reasonable to believe that the invocation made that job easier, even if only by underscoring the seriousness of the situation. But the test in the act is not whether an extraordinary power will make for an easier day’s work for police. Nor is the test whether such a measure will expeditiously end weeks of political embarrassment.

The only test is one of necessity – dire necessity.