Ottawa expected to announce update on Emergencies Act inquiry in 'the coming days'

On February 17, 2023, Prime Minister Justin Trudeau told reporters he would disclose which POEC recommendations his government would implement for future emergencies within six months.

Ottawa expected to announce update on Emergencies Act inquiry in 'the coming days'
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Canadians can expect an update in "the coming days" on dozens of recommendations concerning the federal response to the Freedom Convoy protests.

In February 2022, protesters filled downtown Ottawa, many in large trucks, to demonstrate against COVID mandates and the government's invasion of Charter Rights.

Blaring rig horns, diesel fumes, makeshift encampments, and even a hot tub and bouncy castle filled the immediate area surrounding Parliament.

Soon after, public frustration boiled over from relative inaction by the Ottawa police. 

On February 14, 2022, Prime Minister Justin Trudeau invoked the Emergencies Act to permit temporary measures, including regulating and prohibiting public assemblies.

This is the first time the federal government invoked the Act, which replaced the War Measures Act — last used by Parliament in 1988.

On February 17, 2023, Trudeau told reporters that he would disclose which recommendations his government would implement for future emergencies within six months.

One reporter asked Trudeau if invoking the Emergencies Act was a failure of federalism. He said its invocation — though "undesirable" — met the "high bar" in its implementation.

A Public Safety spokesperson told the CBC Tuesday: "We'll have more to say on that in the coming days." 

POEC Commissioner Paul Rouleau made 56 recommendations last September to bolster the Emergencies Act and improve how law enforcement and government personnel respond to nationwide protests.

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.

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.

Trudeau claimed that "lawful protests embraced lawlessness," citing several border blockades and the Ottawa occupation.

"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.

"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." 

Ultimately, Cabinet viewed it differently than CSIS. Still, he added the Act has a legal precedent, whereas the Emergencies Act does not, supporting the "narrow" CSIS definition while reprimanding Rouleau for making the recommendation.

The Justice Centre lawyer 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."

On February 24, Kheir said the report is "just an investigation" and "is not legally binding." But he claims 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." 

Among his findings, Rouleau, an Ontario Court of Appeal justice, said the feds met the "very high" threshold needed to invoke the Act in February 2022.

In a letter to premiers on February 15, 2022, Trudeau said the Freedom Convoy had reached a point "where there is a national emergency arising from threats to Canada's security."

Manitoba's Justice Minister Kelvin Goertzen countered the point, calling the invocation of the Emergencies Act an act of government overreach.

Kheir clarified the blockades in Coutts and Windsor cleared on February 13 and 14, 2022, before Trudeau invoked the Act. Most voluntarily left upon learning weapons had been present.

On reasonable grounds, federal officials believed a public order emergency existed and necessitated taking temporary special measures.

They froze the bank accounts of those connected to the protests and commandeered tow trucks to remove convoy vehicles from Wellington Street.

Rouleau said most of the measures under the Act were "appropriate and effective," but he contends there should have been a "delisting mechanism" for frozen accounts.

However, the commissioner also wrote the demonstrations that ground downtown Ottawa to a halt for nearly three weeks constituted an emergency that could have been avoided. 

A three-day judicial review commenced on April 3 to rule whether the federal government, as argued in the 'Rouleau Report,' had met the threshold for using the Emergencies Act to quell Convoy demonstrations across Canada.

The court of law continues to weigh legal arguments about the historic decision.

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