When the Trudeau government this week announced a public inquiry into its decision to invoke the Emergencies Act during the trucker convoy crisis, the first question journalists asked it was, Would it waive cabinet confidentiality if requested to do so during the hearings?
It’s an important question, and a difficult one. Cabinet confidentiality is a hallmark principle of Canada’s Parliamentary democracy. As the Supreme Court of Canada said in a 2002 decision, “the process of democratic governance works best when cabinet members … are free to express themselves around the cabinet table unreservedly.”
But as critical as it may be, if inquiry head Justice Paul Rouleau decides that making cabinet documents and discussions public is required to understand whether the invocation of the Emergencies Act was justified, then the Trudeau government should be prepared to do so.
That’s because invoking the act is not like any other decision a government can make – and deliberately so. It was carefully written as a modernization of the War Measures Act, the blunt instrument Pierre Trudeau used during the 1970 FLQ crisis in Quebec, and which allowed police to arrest and jail people without warrants or habeas corpus.
The new law, which had never been used until this year, is only supposed to be activated in the most extreme circumstances. Its wording requires the government that invokes it to respect all constitutionally protected rights, such as freedom from arbitrary detention, and to curtail civil liberties only up to the “reasonable limits” allowed in Section 1 of the Charter of Rights and Freedoms.
It also sets out a series of procedures that must be carried out before an emergency can be declared, including consultation with the provinces and territories. The government must also set up a parliamentary committee to review the use of the act, and once the emergency is over, it must launch an inquiry into the same.
Above all, the act clearly defines what constitutes a national emergency, and adds that it “must be a situation that cannot be effectively dealt with by the provinces and territories, or by any other law of Canada.”
The Trudeau government has ticked all the boxes when it comes to the required procedures. But what matters now is that it demonstrate in the inquiry that its decision to invoke the act met the legal criteria: that the protest in Ottawa and various border blockades constituted an “urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.”
The government also has to show that there were no existing laws that could have dealt with the crisis.
This is an open question, particularly given that the border blockades had all been ended or were in the process of dispersing by the time the emergency declaration came into effect, and as such the extraordinary powers were only used to clear protesters from Parliament Hill.
It’s also a vital question. The government imposed extreme measures during the 10-day period, from Feb. 14-23, that the emergency was in effect.
That included making it illegal to participate in any public gathering that might “reasonably be expected to lead to a breach of the peace”; in other words, making it an offence to be in the same place as someone who might do something illegal. It also required banks to freeze protesters’ accounts.
There is no question that Canada needs a modern law that allows the government to take extreme measures in extreme situations, whether that be a war, a natural disaster, or, perhaps, a protest beyond the powers of the police to control.
But the Emergencies Act was written to put the onus squarely on the government to prove that its use of the law was justified by the facts. If you pull the fire alarm, be prepared to show there really was a fire.
If Justice Rouleau decides that he needs to see cabinet documents in order to determine whether that was the case, then the government must be prepared to co-operate.
After all, if the Trudeau government believed extraordinary circumstances were at play, it should be ready to take the equally extraordinary step of making sure that Canadians – and the inquiry acting on their behalf – have all the evidence they need to be convinced it was right.
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