Police walk through parked trucks to make an arrest on Wellington Street, on the 21st day of a protest, in Ottawa, on Thursday, Feb. 17, 2022.Justin Tang/The Canadian Press
The federal government will reveal next week which recommendations from the Emergencies Act inquiry it will accept, including weighing in for the first time on contentious issues like whether to amend the powerful legislation and its threshold for invocation.
Public Safety Minister Dominic LeBlanc told a special joint-committee of the House of Commons and Senate on Tuesday evening that his government’s response to the recommendations was delayed because it needed to take into account a Federal Court ruling in January that found the act’s use was not legally justified and infringed on Charter rights.
The federal government was originally supposed to present a response to the public inquiry’s 56 recommendations by Feb. 17.
“But for that court decision, we would have done it last week or this week,” Mr. LeBlanc told the committee. He said the government wanted to ensure that its response to the recommendations factored in both the Federal Court ruling and the government’s appeal, which was filed last week.
In February, 2022, the government invoked the Emergencies Act and declared a public order emergency in an effort to quell anti-vaccine mandate, anti-government protests that had gridlocked the capital city for nearly three weeks and sporadically jammed border crossings.
The government said the act’s use was justified because the protests represented a “threat to the security of Canada.” That term is a key element of the threshold for invoking the act. Its definition is tied to the definition in the Canadian Security Intelligence Service Act. However, only months after the act’s use did the government acknowledge it relied on a different definition for threat to the security of Canada than the one contained in the CSIS Act.
Last month Federal Court Justice Richard Mosely ruled that the government couldn’t do that. He found that the government failed to prove that there was an emergency, as defined by the Emergencies Act, which he said had to use the CSIS Act’s definition.
Whether the protests met the legal definition of threat to the security of Canada was one of the most contentious elements of the Emergencies Act Inquiry.
The inquiry’s commissioner, Justice Paul Rouleau, however, concluded that Prime Minister Justin Trudeau’s government acted appropriately when it invoked the act. However, he cautioned the factual basis to support his conclusion was not “overwhelming.”
His sweeping recommendations included suggested changes to all three levels of policing, to federal intelligence collection, and to the Emergencies Act. In particular, he recommended that the government remove the Emergencies Act’s link to the CSIS Act and “modernize” the definition of a public order emergency — thereby changing the conditions under which the act can be invoked.
The Emergencies Act was unanimously passed by the House of Commons in 1988. It was introduced by a Progressive Conservative government and replaced the controversial War Measures Act. The powerful piece of legislation allows the government to temporarily side-step Parliamentary oversight.
The government hasn’t yet said whether it will amend the Emergencies Act, but navigating such a thorny issue in a polarized minority Parliament would be challenging. The Liberals currently rely on a deal with the NDP to pass their agenda.
Asked if amendments could be made in the current Parliament, Mr. LeBlanc told The Globe and Mail he recognized it would be a “complicated undertaking.”
“I’m not going to prejudge what parliament will decide,” he added.
The Conservatives have staunchly opposed the act’s invocation. On Tuesday Conservative MPs on the committee tried to pressure the government to release the legal opinion that explained why cabinet could use a different definition of threat to the security of Canada than the one outlined in the CSIS Act.
Mr. Trudeau lifted cabinet confidence for the public inquiry but refused to waive solicitor-client privilege.
On Tuesday, Justice Minister Arif Virani told the committee that due to solicitor-client privilege he could not confirm whether he had even read the legal opinion, since becoming minister.
Conservative MP Glen Motz told the committee he doesn’t believe the legal opinion existed at the time of the government’s decision to invoke the act. The legal opinion was a regular topic of testimony at the inquiry’s public hearings, including in comments by Mr. Trudeau, then justice minister David Lametti, and CSIS Director David Vigneault.
The spy agency’s director testified that he advised the government that the protests did not rise to threats to the security of Canada as defined under the CSIS Act. However, Mr. Vigneault said that after receiving a justice department legal opinion that allowed for a broader interpretation of the definition, he advised the government to invoke the act.