An inquiry studying Prime Minister Justin Trudeau’s unprecedented use of the Emergencies Act began holding hearings on Thursday, as his critics continue to question whether the government met the legal threshold to trigger the sweeping legislation in response to a series of pandemic-fuelled anti-government protests.
The long-awaited hearings are a key part of the inquiry, which is known as the Public Order Emergency Commission. Mr. Trudeau, his senior ministers, top-ranking civil servants and intelligence-agency officials are among the 65 witnesses expected to testify in Ottawa over the next six weeks.
The hearings began with an opening statement from the inquiry’s commissioner, Paul Rouleau. The commission’s counsel will then present overview reports, to establish the baseline facts that will provide context for the witness testimony.
The Emergencies Act grants Ottawa extraordinary temporary powers to deal with crises, but it requires the government to strike a commission of inquiry whenever the legislation is invoked. The inquiry’s final report, with findings and recommendations, must be submitted to the government by Feb. 6, 2023.
In Pickering, Ont., on Wednesday, the Prime Minister said the commission’s purpose is to ensure “proper accountability and proper oversight after the fact.” Mr. Trudeau said he offered to testify so that “Canadians could understand exactly why we had to do what we did,” and “why it was necessary to restore order to Canada.”
The Emergencies Act was passed in 1988, but the government invoked it for the first time on Feb. 14 of this year, two weeks into a protest in Ottawa against pandemic restrictions and mandates. The demonstration filled the downtown area with parked cars and trucks, bringing the city centre to a halt. Other groups of protesters had staged blockades of Canada’s border crossings, including the ones at Windsor, Ont., and Coutts, Alta.
The act’s use was supported by all Liberal and NDP MPs. Conservative and Bloc Québécois MPs opposed the declaration of the emergency.
The decision was quickly questioned by opposition critics and legal and security experts, but Justice Minister David Lametti defended the choice, and said the government had met the legal requirements to invoke the Emergencies Act. According to the act, a public order emergency can be declared when threats to the security of Canada are so serious that they constitute a national crisis that cannot be dealt with under any other existing law.
The Bloc Québécois said in a statement Wednesday that the government was unable to justify its use of the emergency declaration at Parliamentary committees that preceded the commission.
The government used the temporary powers granted to it by the Emergencies Act to crack down on the protesters in various ways. It prohibited some public assemblies. It also strengthened the power of police to impose fines and imprison people, compelled tow-truck companies to help clear blockades, allowed banks to freeze the personal and corporate accounts of individual protesters without court orders and subjected crowdfunding companies to anti-money-laundering and terrorist financing rules.
When Mr. Trudeau invoked the act in February, he said the move was a measure of “last resort.”
At a press conference in Ottawa on Wednesday, the Canadian Civil Liberties Association said it remains unconvinced by the government’s arguments. The CCLA’s position at the commission will be that the government failed to meet the legal threshold to invoke the act, and that its actions were unconstitutional.
The government will have to meet a “very high bar” at the inquiry to show that the act was legally invoked, said Cara Zwibel, director of fundamental freedoms at the CCLA, which has standing during the commission. Standing allows groups and individuals to participate in the hearings and question witnesses, among other things.
The CCLA is particularly concerned by the scope of the government’s emergency orders and the lack of clarity on how the orders would be applied, Ms. Zwibel said. In particular, she said, the government allowed for “significant deviations from the norm” when banks were allowed to freeze accounts with no due process or notice.
She also said the association believes the government had other options at its disposal, including passing new legislation that would have been subject to Parliamentary scrutiny before the rules took effect – rather than after the fact.
According to the commission’s mandate, it will assess the basis for the government’s decision to declare a public order emergency, the circumstances that led to it and the “appropriateness and effectiveness” of the measures taken.
Errol Mendes, a professor of constitutional and international law at the University of Ottawa, said Wednesday that he expects the commissioner will assess the arguments being advanced by both sides – for and against the act’s use – and try to find facts and analysis that both can agree on before coming to a conclusion on whether the act’s use was legitimate.
Addressing the concerns of both sides will be an important part of the commission, he added.
“We have to find ways to depolarize,” Prof. Mendes said. “This could easily happen again, and we need to find ways to get people to reconcile.”
Many people and organizations have been granted standing in the inquiry. Testimony will begin on Friday with individual Ottawa residents, local business groups and members of the local city council. Witnesses from relevant police forces, representatives of the main protest in Ottawa, organizers of border blockades and provincial civil servants will also testify.
Although policing falls within provincial jurisdiction, the anticipated witness list includes no premiers. Manitoba, Alberta and Saskatchewan all applied for – and were granted – standing at the commission. But Ontario, where the largest and most disruptive events took place, does not have standing. Asked why it didn’t make a request, the provincial government did not explain.
The commission said the federal government has waived cabinet confidence on “all the inputs that were before Cabinet when it decided to declare the public order emergency.”
In a statement Wednesday, the NDP said it hopes that the waiving of cabinet confidence means the public will get clear answers as to why no government or law-enforcement agency was able to deal with the crisis without the help of the act.