LILLEY: Rouleau gives Trudeau a pass on Emergencies Act with reluctance
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Justice Paul Rouleau’s report on the invocation of the Emergencies Act last year looked at the evidence and came to the conclusion that its use was justified even if the evidence wasn’t overwhelming.
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Rouleau’s 2,000-page, five volume report was released Friday with 56 recommendations for changes and plenty to say about policing and the actions of various politicians.
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The main issue before the inquiry though is whether using the act was justified.
“I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance,” Rouleau wrote in his report. “The state should generally be able to respond to circumstances of urgency without the use of emergency powers.”
While reluctant, Rouleau did find that at the time of their decision-making, cabinet had reasonable grounds to believe the country faced a threat to national security.
“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming and I acknowledge that there is significant strength to the arguments against reaching it,” he wrote.
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That is hardly a ringing endorsement of the Trudeau government’s actions. The report says this could have been avoided with better leadership.
Justice Rouleau said they met the threshold, but he too has doubts and a reluctance to arrive at that conclusion.
Reasonable and informed people, he said, could easily arrive at a different conclusion.
I’m one of those who believes the threshold wasn’t met and where I differ from Rouleau is on how the act requires the government to reach its determination. The Emergencies Act requires there to be a threat to national security, as defined by the CSIS Act, and that no other laws could deal with the situation.
Justice Rouleau not only agreed with the government using “inputs” on the threat they were facing well outside the definition found in the CSIS Act, he called for the Emergencies Act to be amended to remove the reference to CSIS. The government’s argument was that CSIS doesn’t get to determine what is an emergency, that is for cabinet to decide.
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That’s all true, but my reading of the act isn’t that CSIS determines what is or isn’t an emergency, that should be the decision of government. What the Emergencies Act does is use the CSIS Act to define what an emergency is to limit how and when the act can be invoked.
Rouleau report addresses six questions raised during Emergencies Act hearings 
Liberals’ decision to invoke Emergencies Act justified, but ‘regrettable’ it happened It should be difficult for any government to declare a national emergency and suspend civil liberties. It should be difficult for any government to grant itself sweeping powers as the Emergencies Act does.
The actions of the Trudeau government made it easier to seize those powers, which Rouleau admitted were not always handled well, such as the process of freezing bank accounts.
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In his report, Justice Rouleau calls for the government to remove the reference to the CSIS Act from the Emergencies Act, a move that I fear could weaken the law and allow future governments greater leeway in using extraordinary powers.
Thankfully, Justice Rouleau calls for the threshold for invoking the act to remain high if the government follows his recommendation.
“I wish to emphasize that I am of the firm view that the safeguards contained in the current Emergencies Act should not be weakened; the threshold, even if modernized, should remain high to reflect the exceptional nature of the authority given to Cabinet under the Act,” Rouleau wrote.
In order to achieve that goal of keeping the threshold high, if the CSIS Act is removed, the definition that replaces it must be tightly worded and strictly laid out.
Trudeau can’t be allowed to use this report to make it easier to grant himself special, sweeping powers in the future.
blilley@postmedia.com
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