Trudeau Liberals delay response on Emergencies Act recommendations

Alex Dhaliwal
  |   February 28, 2024

The Trudeau Liberals are set to unveil next week which recommendations from the Emergencies Act inquiry they will accept.

Public Safety Minister Dominic LeBlanc told MPs and Senators on Tuesday that his government delayed the implementation of recommendations for the Act because the Federal Court ruled that they infringed on Charter rights.

Their initial deadline was set for February 17.

Among the inquiry’s 56 recommendations is the government defining the threshold for what constitutes a public order emergency — one of the most contentious parts of the whole situation.

“But for that court decision, we would have done it last week or this week,” LeBlanc told the joint parliamentary committee. He said the government wanted to factor in their appeal last week as part of their response to the recommendations.

Longtime Ottawa resident and Federal Court Justice Richard Mosley, 74, published his decision on the Liberals' Freedom Convoy crackdown last month, concluding that the federal proclamation "does not bear the hallmarks of reasonableness – justification, transparency, and intelligibility."

"In my view, there can be only one reasonable interpretation of EA sections 3 and 17 and paragraph 2(c) of the CSIS Act and the Applicants have established that the legal constraints on the discretion of the GIC to declare a public order emergency were not satisfied," he writes.

However, government lawyers last week said the Federal Court ruled “with the benefit of hindsight” and based on information not available to the feds in 2022, reported CTV News.

They contend the court should have considered the reasonableness of the government’s declaration of a public order emergency and whether it required special temporary measures in response to the protests.

At the time, Prime Minister Justin Trudeau claimed "lawful protests embraced lawlessness," citing several border blockades and the peaceful Ottawa protests.

"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," Justice Centre Hatim Kheir said last February.

Although the feds maintain they acted with justification, they acknowledged, months after its invocation, that they relied on a different definition for threat to the security of Canada.

Trudeau’s controversial invocation of the Act on February 14, 2022, granted the Cabinet extra-judicial powers to freeze bank accounts, detain protestors, and mobilize troops on Canadian soil in a bid to disrupt the convoy that gridlocked the nation’s capital for nearly three weeks.

At the time, then-justice minister David Lametti claimed the Emergencies Act was a "proportionate measure to restore order" against the "illegal blockades and occupations [that] threaten the safety of Canadians."

However, Inquiry Commissioner, Justice Paul Rouleau, acknowledged the protests were rooted in a "loss of faith in government" and "economic hardship" caused by the government's COVID response. The "peaceful demonstrations" also surprised him.

While he concluded that the Trudeau Liberals acted appropriately when they invoked the act, he admitted that several media outlets spread "misinformation" about the Freedom Convoy, which the feds did not address.

Ultimately, the Federal Court decision differed from the findings of the Public Order Emergency Commission. They concluded that Trudeau and his Cabinet met the legal threshold for using the emergency law, though it bears no legal standing.

Kheir clarified that invoking the Emergencies Act is the "last resort" — a sentiment expressed by Rouleau.

"The Emergencies Act has no precedent on interpreting terms, but the advantage of incorporating the CSIS Act is that it has a precedent," added Kheir last February.

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.

The lawyer supported the "narrow" CSIS definition and called it "unfortunate" that Justice Rouleau made the recommendation for the government to determine the threshold for use of emergency powers.

Though the report is "not legally binding," it does "influence people with authority," according to Kheir.

The Trudeau Liberals have yet to say whether it will amend the Emergencies Act.

Asked if Canadians should expect amendments in the current Parliament, LeBlanc told The Globe and Mail it would be a “complicated undertaking.”

“I’m not going to prejudge what parliament will decide,” he added.

Alex Dhaliwal

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