When Justice Paul Rouleau found, after months of hearings before the Public Order Emergency Commission, that the federal government’s use of the Emergencies Act to clear out the militant anti-vaxxers occupying downtown Ottawa was both justified and lawful, the response in certain quarters was muted. Meh. Liberal-appointed commission, Liberal-appointed judge, what would you expect him to say?
But let one Federal Court judge reach the opposite conclusion, and you’d think it was the liberation of Paris. Also Liberal-appointed, Justice Richard Mosley was nonetheless able to persuade the skeptics of his wisdom and independence, merely by producing a verdict that fit with their priors. JUDGE RULING MAY HAVE SAVED CANADA, was the title of one Sun newspaper columnist’s response.
The notion that Justice Mosley’s ruling marks a thundering rebuke to the government or a root-and-branch denunciation of its decision to declare a public order emergency is widely shared among people who have not actually read it. It is in fact a cautious and deferential ruling, reached with great reluctance, on narrow, technical and, in places, curiously reasoned grounds. It may survive appeal, but that is by no means certain.
The case challenged the government’s decision on two broad fronts: one, that the conditions necessary for such a declaration under the Emergencies Act were not present; and two, that in the subsequent use of its emergency powers, the government violated the protesters’ rights under the Charter.
For a public order emergency to exist, the Act specifies, there must exist “threats to the security of Canada” so serious as to rise to the level of a “national emergency.” What’s a national emergency? One that “is of such proportions or nature as to exceed the capacity or authority of a province to deal with it” and “that cannot be effectively dealt with under any other law of Canada.”
And what’s a “threat to the security of Canada”? Here the Emergencies Act borrows the language of the CSIS Act: the “threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”
That, however, is not the key phrase in the Act. The critical question, in law, is not whether a public order emergency actually exists, but whether the government “believes, on reasonable grounds” that one exists. As the judge reminds us, the legal test in such matters is not correctness but reasonableness. Was the decision reasonable, given the information the government had at the time?
“A broad and flexible interpretation,” he writes, “of the words ‘threats to the security of Canada’ could encompass the concerns which led the [government] to issue the Public Order Emergency Declaration.” Indeed, he would have ruled as such, “had those words remained undefined in the statute.” But as it is, his hands are tied – that is, by the language of the CSIS Act.
Or rather, by his interpretation of the CSIS Act. Do words have exactly the same meaning in radically different contexts? Is it reasonable to hold the government, in using the comparatively limited powers available to it under the Emergencies Act, to exactly the same standard as CSIS, in the exercise of far more draconian powers? This may be one of the issues that comes up on appeal.
What is more, the judge writes toward the end of his ruling that, had he been in the government’s position, “I may have agreed that it was necessary to invoke the Act.” The only reason he had come to a different conclusion, he acknowledges, was “with the benefit of hindsight and a more extensive record of the facts” than was available to it at the time. But reasonableness does not entail hindsight!
As for the Charter challenges, the judge waves most of them away. Of the two he upheld, the most serious is his finding with regard to the decision to temporarily freeze some of the more recalcitrant occupiers’ bank accounts – not because it was an intolerable affront to justice in itself, but because the rules governing whose accounts should be frozen and on what grounds had not been clearly spelled out: the police, he writes, were essentially “making it up as they went along.” That’s obviously unacceptable.
We shall see whether the judge’s findings are upheld on appeal. But if the case has no other effect but to tighten up the rules surrounding the use of the Emergencies Act – and to remove the anomalous CSIS Act definition from its text – it will have aided the public interest.
Indeed, the mere fact of it having been challenged is to the good, even if the claims are ultimately set aside. It should always be incumbent on the state to justify any limitation on rights, no matter how modest or short-lived. Justice Mosley may have found differently than Justice Rouleau, but both served ultimately in the same cause.