Aaron Wudrick: The Emergencies Act threshold is now incompetence, apparently

© Provided by National Post Thousands gather in front of Parliament Hill in central Ottawa on February 5, 2022, to protest against vaccine mandates and other health regulations as part of the Freedom Convoy.

If you were looking for some weekend reading, Justice Paul Rouleau has you covered. Friday’s release of the Public Order Emergency Commission’s voluminous 2,092 page final report, authored by Rouleau, is nothing if not thorough. It incorporates everything from an analysis of the history of the early 2022 convoy and border blockades, media coverage, police operational decisions and government action, capped off with analysis, findings and recommendations.

Supporters of the Trudeau government’s decision to invoke the Emergencies Act will be greatly cheered by the central conclusion arrived at by Rouleau that the government’s invocation of the act was appropriate, and no doubt this will be the primary talking point advanced by the government’s communications machine in the coming weeks. The debate is over; vindication is ours.

For a government with a lot of fires to put out, you can’t really blame them. But scratch the surface of the report, and the caveats start to become apparent. In considering the measures used under the act, Rouleau acknowledges that the commission “does not have the legal authority to render a formal judgment on the ‘lawfulness’ of the measures” — which are the proper purview of a court. Accordingly, his choice of the preferred standard of “appropriateness” is a more “open-textured standard that permits me to assess the measures holistically” and he does not “intend or consider my findings on this topic to be in any sense binding on the courts.”

To be fair to Rouleau, he knew he was caught between a rock and a hard place: fail to make a finding and be accused of ducking; or make a finding and get pilloried for stepping outside his mandate. In the end, he decided to split the difference. While finding that the government met the high threshold required, he noted he did not “come to this conclusion easily” and did “not consider the factual basis to be overwhelming” while allowing that “there is significant strength to the arguments against reaching it.”

This sort of hedging will be unsatisfying to people on both sides of the debate. On a matter of such importance, and having recognized that the issue remains before the Federal Court, one would think that the appropriate course of action would be to either state one’s position with a high degree of confidence or withhold taking one altogether.

Much of Rouleau’s rationale rests upon the well-established criminal law “reasonable belief” standard — which holds that perfect judgment is not required, but merely that a decision maker in possession of a certain set of facts acts in a way that is considered “reasonable.” There is little to quibble with here as a general principle. But surprisingly, Rouleau simply shrugs off the government’s refusal to release the key legal opinion it received suggesting it met the legal threshold to invoke the act. Instead, Rouleau points to testimony from several witnesses — including the prime minister, attorney general and Clerk of the Privy Council — accepting that their own interpretation of this unknown advice was sufficient.

There are other eyebrow-raising passages. For example, in his analysis of whether the government met the threshold set out in Section 3 of the act that a situation must be one that “cannot be effectively dealt with by any other law of Canada,” Rouleau concludes that the test is met on the basis of the modifier “effectively” as opposed to the verb “cannot.” In so doing, he essentially lowers the threshold for the act, giving a new basis for future governments to invoke the act rooted not in legal necessity, but administrative or operational incompetence.

It goes without saying that Rouleau is acutely aware of the extraordinary powers the Emergencies Act confers. Yet, despite his insistence that maintaining a high threshold for its use is important, this is not the only instance where his comments lean towards more, rather than less, deference to cabinet. In the recommendations portion of the report, he even goes so far as to suggest that the definition of “threats to the security of Canada” — currently incorporated by reference into the Emergencies Act from the CSIS Act — be removed. This is curious given that Rouleau had just finished concluding that the government was not constrained from appropriately invoking the act by relying on the existing definition. What effect could its removal have other than to provide the government with even more latitude than it already has?

Fortunately for Canadians, the Rouleau report does not represent the last word on the Trudeau government’s use of the Emergencies Act. The court of public opinion may be beyond sway. But from a legal standpoint, the Federal Court — and the two judicial review applications currently underway before it — will likely still have something to say. For the sake of posterity — and to discourage future use of the act — we should hope they reach different conclusions.

Special to National Post

Aaron Wudrick is a lawyer and the director of the domestic policy program at the Macdonald-Laurier Institute.