The legal test the government must pass: not was it right, but was it reasonable?

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Perhaps it was imagined that Justin Trudeau would be diminished by his appearance as a witness before the Public Order Emergency Commission. Sitting prime ministers, after all, are rarely obliged to submit to such indignities. The prospect of Mr. Trudeau being subjected to close questioning, under oath, by a roomful of lawyers, for hours on end must have had his critics salivating.

If so, they are likely to have been left feeling a little disappointed. He was certainly closely questioned, and not all of his answers will withstand scrutiny. But on the whole, it was a good look for the Prime Minister. Far from being diminished by his ordeal, it appears to have sobered him up. He was neither flippant, nor evasive, nor stagey, nor ingratiating – all the things he usually is. Rather, his answers came across as sincere, considered and, dare I say it, reasonable. If only Question Period were like this.

An inquiry is not a trial, of course, and the Prime Minister was not in court – except, that is, the court of public opinion, which was what this whole proceeding was mostly about. Until now the public has been prepared to give him the benefit of the doubt for the decision to invoke the Emergencies Act to clear out the angry mob of anti-vaxxers, conspiracy theorists and worse that occupied downtown Ottawa and assorted border crossing points for several weeks last winter.

A final verdict will await Justice Paul Rouleau’s report in February, but nothing in the Prime Minister’s appearance before the commission, or in the six weeks of hearings that preceded it, is likely to dislodge that preliminary judgment.

The Emergencies Act inquiry’s most interesting revelations, as told by its text messages

Much of the evidence before the commission, and almost all of the commentary on it, has focused on the question of whether the decision to invoke the Act met the strict legal definition of a public order emergency set out in the law: that is, “threats to the security of Canada” that are so serious as to be a “national emergency.”

Both of those terms are further defined in the legislation. Critically, a national emergency must not only endanger the “lives, health or safety” of Canadians or threaten the “sovereignty, security and territorial integrity” of Canada, but must be such that it “cannot be effectively dealt with under any other law of Canada.”

Threats to the security of Canada are defined in a number of ways via the Canadian Security Intelligence Service Act: espionage or sabotage, clandestine “foreign influenced activities,” threats or acts of violence for “a political, religious or ideological objective,” and so on.

There has accordingly been a great deal of debate about whether the protesters could have been dispersed by other means – whether police had or had not used “all of the tools” at their disposal – or whether they posed so great a threat to national security as all that.

These are certainly worth debating. That they are debated, however, suggests the matter is not so cut and dried as some seem to believe. Which, in fact, goes to the heart of the legal question. The Act does not require certainty on any of these points. As the Prime Minister pointed out, it only requires reasonableness.

“When the Governor in Council believes, on reasonable grounds, that a public order emergency exists,” Section 17 (1) of the Act reads (emphasis added), then the Governor in Council – meaning cabinet – may so declare. Whether the decision to declare a public order emergency was legal, then, is inseparable from whether it was reasonable.

The Act gives considerable latitude to the authorities to deal with complex and evolving crises, in part because the powers it confers are so circumscribed. Far from the declaration of “martial law” that some prominent lunatics have depicted it as, the Act does not suspend the Charter of Rights; neither does it allow for arrests without charge or imprisonment without trial.

Rather, it permits the government, “on reasonable grounds,” for no more than 30 days, and subject to constant parliamentary oversight, to do broadly two things: one, to prohibit a public assembly “that may reasonably be expected to lead to a breach of the peace,” to secure certain “protected places,” and to restrict travel to or from the area; and two, to order providers of “essential goods and services” to provide them, as well as to assume control of public utilities.

Public spaces and public services: that’s more or less what this involved. The occupied zones were declared no-go areas. Tow truck operators were conscripted to provide the services they had been too frightened to provide before then. The most controversial measure was an order freezing the bank accounts of some of the protesters – for a few days.

The relative restraint of the Act has a bearing on the reasonableness argument. To justify the sorts of intrusions on civil liberties that, say, CSIS might be called upon to engage in, the bar should be set very high indeed. To commandeer a tow truck, less so. I think that was the distinction the Prime Minister was trying to make with regard to interpreting the “threats to the security of Canada” provision, as clumsy as it was.

Did the government have “reasonable grounds” to believe a public order emergency existed? Arguably, yes. It is reasonable to argue that the conspicuous and prolonged breakdown of law and order in the capital was a threat to safety and security, not only directly – in the harassment, intimidation and in some cases, attacks on local residents – but perhaps more seriously, in its knock-on effects: the spread of copycat blockades across the country, and the standing invitation to bad actors to take advantage of the chaos.

So there was an emergency. And the authorities at every level seemed entirely incapable of containing it. Perhaps the police had the powers they needed, on paper, but they clearly were not using them. After the Act was invoked, however, they did. Was this pure coincidence?

Is the argument that the Act was unnecessary – that it provided police with no powers they did not already have? Then it cannot also have been an overreach. Or is it admitted that the crisis could not have been resolved without it, but that the government should not have invoked it even then: that a lawless occupation should have been left to continue indefinitely, with whatever consequences followed? Is that reasonable?

The Constitution, it is said, is not a suicide pact. I would say it another way: the law is not an ass. Written between the lines of any statute is an abiding expectation of reasonableness. If the public has been prepared to give the government the benefit of the doubt on this, it may be because it has the same expectation.