Ontario lawyer criticizes 'Rouleau Report,' says it's an 'influential' document but non-binding
The controversial and widely detested Public Order Emergency Commission (POEC) report became public nearly two weeks ago, yet the 'flawed' 2,000-page report is not legally binding for future public order emergencies, says one lawyer.
Ontario lawyer Hatim Kheir cited the "Rouleau Report" throughout his presentation Friday, which outlined how POEC Commissioner Paul Rouleau determined Ottawa met the threshold to invoke the Emergencies Act.
According to Section 17(1) of the Emergencies Act, Ottawa can exact "temporary special measures" when it believes a public order emergency exists on "reasonable grounds" — a phrase that Kheir said has meaning in law.
"It refers to the probability that something is true," said Kheir, adding the federal government believed the convoy posed "threats to the security of Canada...so serious as to be a national emergency."
A national emergency constitutes that which could not be effectively dealt with under any law in Canada as an "urgent and critical situation of a temporary nature."
The feds articulated that the convoy impacted residents through the shouting of pro-western Canadian rhetoric, honking, and the fumes of the convoy trucks.
They also referenced border blockades, the impact on the economy, and the risk of conflict with counter-protesters as justification for declaring the demonstrations as a "national emergency."
The "Rouleau Report'' claimed that online threats against officials, the risk of violence from lone wolf actors, "concerning" memes from Diagolon, and weapons at the Coutts, Alberta blockade with supposed Diagolon paraphernalia constituted threats to national security.
Under the Act, law enforcement had the legal capacity to establish exclusion zones around the convoy and could kick people out without identifying them as protestors. It also permitted banks to freeze the bank accounts of convoy participants and supporters.
A reporter asked on February 17 whether freezing bank accounts was appropriate for the government.
Freeland responded that the financial measures were "a powerful tool to disincentivize protest … and shrink the size of the [convoy]."
She cited their "overriding objective" to protect Canadians and admitted that her government has lessons to learn.
"There was credible and compelling evidence supporting both a subjective and objectively reasonable belief in the existence of a public order emergency," reads the POEC report.
"I have concluded that the Cabinet was reasonably concerned that the situation it was facing was worsening and at a risk of becoming dangerous and unmanageable," said Rouleau.
"The standard of reasonable grounds to believe does not require certainty."
On Friday, Kheir highlighted discrepancies between how Ottawa perceived a national security threat and as defined by Canadian Security Intelligence Service Act.
According to the federal spy agency, threats to national security constituted espionage or sabotage, foreign-influenced activities, acts of serious violence, or an attempt to overthrow the government.
"Prime Minister Justin Trudeau invoked the Emergencies Act on the alleged threat or use of acts of violence [to achieve] a political, religious, or ideological objective," said Kheir.
Trudeau claimed that "lawful protests embraced lawlessness," citing several border blockades and the Ottawa occupation.
He said the risk of "ideologically motivated extremism" posed a "volatile, out of control" threat to Canadians.
NDP leader Jagmeet Singh also claimed the convoy wanted to overthrow the federal government in a "fascist way."
On February 17, the prime minister walked back his divisive rhetoric towards peaceful protesters, stating he wished he had worded it differently. He also admitted that most protestors participated because they were "hurting" by punitive COVID measures.
"Under the CSIS Act, the federal government did not want an investigation into the invocation of the Emergencies Act as CSIS claimed they did not meet the threshold," said Kheir.
Ultimately, Cabinet viewed it differently than CSIS, but he added that the CSIS Act has a legal precedent, whereas the Emergencies Act does not.
OPP Superintendent Pat Morris told Rouleau during the POEC Inquiry that he found the lack of violence "shocking" at the protests and claimed that the media misreported things that exacerbated the situation. However, Rouleau disagreed and valued the opinion of others over Morris.
"I disagree with his assessment and accept the evidence from several witnesses that there was violence," said Rouleau.
"I do not consider the factual basis for it overwhelming," he said, adding it met reasonable grounds though "lacking certainty."
Ottawa's Interim police chief Steve Bell responded to a question from lawyer Brendan Miller, asking what violence occurred in Ottawa.
Bell said the protests did not meet the Criminal Code definition of violence, citing that people "felt [the violence] of excessive horns blaring."
Kheir added Friday that the only evidence of violence during the Ottawa protest was the violence the police committed against protestors.
Ultimately, the POEC Commissioner acknowledged that the protests were rooted in a "loss of faith in government" and "economic hardship" caused by the government's COVID response. He also said the "peaceful demonstrations" surprised him.
Though Rouleau acknowledged a "diversity" of views among the protestors, he said some still desired to commit "dangerous acts."
Still, he also admitted in the report that several media outlets spread "misinformation" about the Freedom Convoy, which the federal government did not address during its press conference.
The prime minister added: "Everyone has the right to protest peacefully," a right he claims his government will "always protect."
Rouleau admitted invoking the Emergencies Act is "regrettable," owing to several policing failures in response to the convoy that "spun out of control."
On Friday, Kheir highlighted several issues with Ottawa's handling of the convoy, including a need for more cooperation with provincial authorities and law enforcement to quell protests outside Ottawa.
"The use of the military against civilians to quell protests is permissible under the Emergencies Act, which allows the feds to overreach provincial jurisdiction and impose laws without parliamentary debate," said Kheir.
He added that invoking the National Defence Act is the "second last resort," and the Emergencies Act is the "last resort."
Rouleau said the Emergencies Act is not a "tool of convenience" but a "tool of last resort" in his report.
Trudeau also said invoking the Act was a "measure of last resort" but "necessary" to counter the risk of people "losing faith in the rule of law."
Rouleau opined that deploying the Canadian Armed Forces (CAF) "was not an appropriate solution...but [was] preferable to using emergency powers." However, he said the feds could have addressed the "breakdown of public order" under the Criminal Code or Part XI of the National Defence Act before considering the Emergencies Act.
According to Section 275 of the National Defence Act, the CAF is only to be deployed domestically "beyond the powers of the civil authorities to suppress," meaning if the convoy protestors proved overwhelming for local law enforcement and RCMP officers, then the use of armed forces would be "appropriate."
On February 17, a reporter asked the prime minister if invoking the Emergencies Act was a failure of federalism.
He responded that invoking the Act was "undesirable" but cited Rouleau had concluded the feds met the "high bar" in its implementation.
"Throughout the process, we saw that there were times when the provinces could have done things differently and could have cooperated better with the federal government," said Trudeau, admitting that the feds could have been better partners in federation with the provinces too."
On Friday, Manitoba's Justice Minister Kelvin Goertzen said the province considered the invocation of the Emergencies Act an act of government overreach.
He credited Manitoba RCMP and Winnipeg police for dispersing a border blockade in Emerson last February.
Goertzen also said convoy protestors left their encampment outside the Manitoba Legislature on February 23, 2022, after law enforcement warned protesters of arrests and charges if they didn't clear the road.
Kheir also commented that the blockades in Coutts and Windsor cleared on February 13 and 14, 2022, before Trudeau invoked the Emergencies Act, as most voluntarily left upon learning weapons had been present.
On Friday, Kheir also expressed concerns with several of the 56 recommendations outlined in the report.
If amended, Recommendation #32 would permit the government to define what constitutes a public order emergency and violence over CSIS, allowing them to determine the threshold for invoking the Emergencies Act.
"The Emergencies Act has no precedent on interpreting terms, but the advantage of incorporating the CSIS Act is that it has a precedent," said Kheir.
He supported the "narrow" CSIS definition and said it is "unfortunate" that Rouleau made the recommendation.
Kheir also criticized Ottawa for not justifying the Act from the onset.
Recommendation #40 highlights "the government delivered to the commission a comprehensive statement setting out the factual and legal basis for the declaration and measures adopted, including the view of the Minister of Justice of Canada as to whether the decision to proclaim an emergency was consistent with the purposes and provisions of the Emergencies Act."
But Khier states that "the government has client-solicitor privilege, so nobody knew the advice from the onset that would have helped make that determination."
"Therefore, lawyers didn't know what to ask during the POEC inquiry because that legal advice [by the Justice Minister] was unavailable."
Kheir said the report is "just an investigation" and "is not legally binding." But he said it "influences people with authority."
"If the courts find the invocation unjustified, it would be the winning voice because it is binding in Federal Court. If future governments invoke the Act, they must be aware of the precedent set," he said, who hopes the judicial review through April 3-5 goes differently than the POEC report.
Amid the criticism, the Ontario lawyer praised Rouleau for commenting that Canadians could reach a different conclusion to the report.
Rouleau admitted that other "reasonable and informed people" could come to different conclusions on invoking the Act.
"Thousands of people watched the proceedings … and the public has been exposed to an incredible amount of information," he said, adding that it has enabled people to inform their opinions on the Freedom Convoy and the government response to the weeks-long protests.
"That is the good thing to come out of this," said Kheir.
Trudeau lauded the commission's work as "very important," as it laid a road map for lessons to learn for future emergencies.
He said his government would take the conclusion of the POEC report seriously but did not commit to a timeline.
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