Opinion: The Emergencies Act was never meant to be used against political opponents
Emergencies Act #EmergenciesAct
The long anticipated public inquiry into the federal government’s first ever invocation of the Emergencies Act in response to the Freedom Convoy protests are finally underway in Ottawa. The Public Order Emergency Commission, also known as the Rouleau Commission, commenced hearings Thursday in Ottawa with opening statements from parties and the introduction of overview reports from commission counsel.
By law, the commission’s final report examining and assessing the basis for the government’s decision to declare an emergency must be laid before Parliament by February 20, 2023. This deadline is set by the Emergencies Act, and cannot be changed or extended.
This is a herculean task. Twenty-two lawyers, as well as several policy advisors and a research council, have been appointed to assist Justice Paul Rouleau. The preliminary list of potential witnesses includes 65 names, including the prime minister, cabinet ministers, senior law enforcement and bureaucratic staff as well as convoy organizers. The commission has also awarded 20 different organizations standing as parties to the inquiry, which means they can participate in the cross examination of witnesses.
For context, no other public inquiries have had their deadline set by statute. They’ve also had far more time to do their job. Justice Rouleau pointed out that the Air India inquiry took four years to issue a report. The Commission on the Decline of Sockeye Salmon took three years to issue a report, and the Inquiry into Missing and Murdered Indigenous Women and Girls took more than three years to issue a report. This commission has 300 days to complete its work.
Sharp disagreements were immediately apparent in the commission’s opening statements. Counsel for the federal government underscored its view that Canada faced an “unprecedented and critical” situation in the face of ongoing protests and blockades, including threats of ideologically motivated violence and impact on Canada’s trade, international relationships, and reputation.
Paul Champ, a lawyer representing the residents of Ottawa underscored the highly disruptive, even “traumatizing” experience of the protests, with continual honking throughout the night, loose jerry cans on the streets, and general disorder.
The dismay of the provinces both at the manner and merits of invoking the act was also clear. Counsel for Saskatchewan and Alberta both expressed disapproval for their lack of consultation prior to the invocation of the act: “the call was not so much about consulting as it was about telling,” according to Mike Morris, Saskatchewan’s lawyer. Several provinces requested that the act’s application be geographically limited, which it was not. Saskatchewan also opposed the financial measures, which required banks and other institutions to take significant steps with little guidance from the government.
Counsel for Alberta noted that the province was able to deal with the Coutts border blockades under existing ordinary laws, and that none of the powers under the Emergencies Act were necessary, or indeed invoked, in Alberta itself.
Civil liberties groups, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, noted the sweeping rights implications of the act. The invocation of the act severely restricted the rights to freedom of expression, assembly and association. The Emergency Economic Measures Order chilled freedom of expression, by mandating banks to freeze bank accounts of those connected to the protests without a warrant.
From the CCF’s perspective, the fundamental question is whether the condition in the final clause of Section 3 of the Emergencies Act was met — that the Ottawa protests and border blockades could not be effectively dealt with under any other law of Canada, federal, provincial or municipal. This clause codifies the requirement that the Emergencies Act is a last resort, which can only be triggered when all other legal tools fall short.
And in the CCF’s view, that condition was clearly not met: as in Coutts and Windsor, the Ottawa protests were cleared using existing police powers. Evidence of former Ottawa police chief Peter Sloly recently disclosed confirms that the plan to clear protestors — including bringing 1,800 additional officers from across Canada to Ottawa — was in place without the declaration of the Emergencies Act.
Counsel for the commission also introduced a number of overview reports, which set out important background information. Commission counsel had prepared these reports, which are a non-exhaustive summary of publicly available information. The reports are not about the merits of the invocation of the Emergencies Act or conclusive, but they are meant to summarize important facts. The report topics included a chronology of the protests, an overview of key events leading up to the invocation of the Emergencies Act, as well as an overview of how the Emergencies Act works and a summary of the statutorily required explanation for its innovation by the government.
There was also a report on the COVID-19 backdrop to the protests. However, the Commission’s mandate is not to examine the federal government’s response to COVID-19, but rather, to report on the circumstances which lead to the declaration of the public order emergency, and more importantly, whether the federal government had legal justification to invoke this historic law.
The act is a successor to the discredited War Measures Act, which was abused during the FLQ Crisis in Quebec. The Emergencies Act — especially the last resort clause — was drafted to ensure that the act could never again be used by a federal government against its political opponents.
It’s important for future instances of social disruption — which seem to be increasing, both in Canada and globally — now that the glass has been broken on the extraordinary instrument that is the Emergencies Act, that the commission look soberly at the evidence and circumstances that led up to its invocation.
Joanna Baron is the executive director of the Canadian Constitution Foundation and Christine Van Geyn is the litigation director at the Canadian Constitution Foundation. The CCF has standing as a party before the Public Order Emergency Commission.