Emergencies Act Inquiry Focus on Government, Not Protesters: Commissioner

by EditorL

By Limin Zhou

When Paul Rouleau kicked off the public inquiry into the federal government’s unprecedented invocation of Emergencies Act, he said the focus of the inquiry is on the government, not the protesters.

“While this inquiry will deal with a wide range of issues, its focus will remain squarely on the decision of the federal government,” he said in the hearing room in the Library and Archive in downtown Ottawa on October 13th.

Ontario Court of Appeal Justice Paul Rouleau, having been appointed commissioner for the Public Order Emergency Commission, is heading the inquiry into the federal government’s invocation of Emergency Acts in response to the freedom convoy protest earlier this year.

The act gave law enforcement extraordinary powers to clear out protests from Ottawa’s downtown area and also gave financial institutions the power to freeze the accounts of convoy organizers and supporters.

Rouleau says the commission’s work will revolve around the mandate granted by Parliament, rather than the one given by cabinet, the latter directed the commission to focus on the protesters’ foreign funding, the role of “misinformation and disinformation,” the economic impacts of the blockades, etc.

Rouleau said the main questions the inquiry will try to answer are why the government declared a public order emergency, how it used its powers, and were those actions appropriate.

On the opening day of the inquiry, the battle fronts are shaping up when the parties each made their position known through their brief opening remarks, including the provincial governments of Alberta and Saskatchewan, Ontario Provincial Police, Ottawa Police Service and Freedom Convoy protesters.

Saskatchewan and Alberta

The provinces of Saskatchewan and Alberta both opposed the Federal government’s invocation of the Emergency Act.

Michael Morris, a lawyer representing the government of Saskatchewan, told the commission that the province was only told of Ottawa’s intention in the morning of February 14, the day the act was invoked, during a call chaired by Prime Minister.

Morris said that Saskatchewan didn’t want the public emergency to apply within its province. “Other provincial governments did the same” during the phone call. “Later that day, the federal government proclaimed a public order emergency. It was not geographically limited,” Morris said.

Mandy England, a lawyer representing the government of Alberta at the commission, said the province wanted to take part in the commission to show that Alberta was able to clear out the blockade at the Coutts, Alberta, border-crossing without the use of the act, and to hold the federal government accountable for the invocation of the act.

“Alberta’s evidence will show that the existing law enforcement tools that were already in place were completely sufficient, and they were successfully used to peacefully restore the flow of traffic at the Coutts border-crossing, and to disperse the protest to a legal protest site,” England said.

Ontario Provincial Police

Christopher Diana, a lawyer for the OPP, made clear that the provincial police force — which was involved in the response to protests in Ottawa and the blockade of Windsor’s Ambassador Bridge — did not believe the powers created through the Emergencies Act were necessary.

“The OPP has significant experience in responding to protests, blockades and similar activities,” Diana told the inquiry.

“While the emergencies legislation — in particular the provincial legislation — provided useful tools, there was sufficient legal authority in their absence to deal with the protest activities that took place over this period of time.”

Ottawa Police

David Migicovsky, a lawyer representing the Ottawa Police, said that the police force is usually prepared to deal with different protests, but not the convoy protests of January and February.

“What you will hear is that this protest was unique in Canadian history, the police had little time to prepare,” he said.

Freedom Convoy Protesters

Freedom Corp Counsel Brandon Miller said that “there was no justification whatsoever to invoke the Emergencies Act.”

“The Emergencies Act requires several things. One, it could be invoked due to espionage and sabotage. Are you going to hear any evidence about espionage and sabotage? The answer to that is ‘no,’” said Miller, one of the lawyers representing the convoy protesters.

“Two, it could be invoked on the basis of clandestine or deceptive foreign influence. A foreign influence that involves the threat to a person. Are you going to hear evidence about that? The answer to that is ‘no.’”

“It also could be invoked on the basis of threats or use of acts of serious violence against persons or property. Are you going to hear evidence of violence against persons or property? The answer is ‘no’,” said Miller.

“Lastly, it can also be invoked if there is a group or persons trying to destroy or overthrow by violence, the system of government of Canada. Are you going to hear evidence about individuals trying to do that? The answer is ‘no’”.

Canadian Constitution Foundation (CCF)

Sujit Choudhry, co-council of CCF said that the fundamental question is whether the condition in the final clause of section three of the Emergency Act was met.  “This clause codifies the requirement that the Emergency Act is a last resort, which can only be triggered when all other legal tools fall short, that the Ottawa protests and border blockades could not be effectively dealt with under any law, any other law of Canada –federal, provincial or municipal.”

“The Emergency Act, especially the last clause, was drafted to ensure that the Act could never be used by the federal government against its political opponent.” said Choudhry.

Ryan Alford, a professor of law at the Lakehead University challenged federal government’s argument “that the invocation of the Emergencies Act was a reasonable and necessary decision, given the escalating volatile and urgent circumstances across the country.”

“A reasonable basis is not necessarily a legal, let alone constitutional basis for assuming unprecedented and emergency powers,” Alford said.

Alford read part of the legal definition of “threats to the security of Canada,” which the Emergencies Act references as justification for the invocation of the act: “Activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence.”

Elaborating on the legal definition, Alford said it didn’t talk about, “tied to serious acts of violence in some fashion,” or, “in conjunction with or somehow associated with,” but, “rather directed toward or in support of the threat or use of acts of serious violence.”

The Emergencies Act defines “public order emergency” as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”

The commission’s proceedings are divided into two phases. The first phase, which involves hearing from different witnesses as a fact-finding effort, will end on Nov. 25, after which the second phase, focused on policy, begins, before the commission submits its report in February.

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