Federal government delays decision on Emergencies Act changes, plans more consultation

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After taking a year to consider the sweeping recommendations called for in the Emergencies Act inquiry, the government says it needs more time to decide whether to make the suggested changes to the powerful and controversial legislation.

On Wednesday, Public Safety Minister Dominic LeBlanc released the government’s response to the 56 recommendations made by inquiry commissioner, Justice Paul Rouleau. But he stayed mum on whether the government would act on many of the key recommendations.

Both the inquiry and the Federal Court have urged the government to amend the act.

From 2023: Trudeau’s use of Emergencies Act was appropriate, inquiry finds

Mr. LeBlanc said his government will first consult with the provinces and territories, Indigenous groups, stakeholders, civil society and others. A press release from his office said more details on the process will come in “due time.”

“We do need more time because it’s complicated,” Mr. LeBlanc told reporters.

University of Ottawa associate criminology professor Michael Kempa said the slow response to the inquiry is likely in part owing to the minority Liberal government’s dwindling support, poor provincial relations and lack of political capital to move ahead on such a controversial issue.

“Rouleau’s critical recommendations to reform the Emergencies Act itself have simply been punted,” Prof. Kempa said. “If they were to try to change the Emergencies Act tomorrow, the opposition could easily take them apart at the joints for changing laws they have just been found guilty of breaking.”

Mr. LeBlanc said the government didn’t want to make “one-off” changes to the Emergencies Act while a broader modernization of the Canadian Security Intelligence Service Act, the Criminal Code, the Security of Information Act and the Canada Evidence Act is under way.

However, the consultation on modernizing the other acts has already closed and the government didn’t include the Emergencies Act in those consultations.

The federal government invoked the Emergencies Act for the first time to quell anti-government, anti-vaccine mandate protests that had gridlocked Ottawa for three weeks and intermittently jammed several border crossings in 2022. The act grants the federal government sweeping powers and allows it to temporarily sidestep parliamentary oversight.

Justice Rouleau found widespread failures among political leaders and police agencies at the federal, provincial and municipal levels during the response to the protests, but ultimately determined that Prime Minister Justin Trudeau acted appropriately when he invoked the act and declared a public order emergency.

Invoking Emergencies Act wasn’t justified and infringed on Charter rights, Federal Court rules

However, in a separate court challenge, Federal Court Justice Richard Mosley ruled in January that the federal government acted unreasonably and was not legally justified in its decision to invoke the act. He found that the government failed to prove there was an emergency, as defined by the act, which he said requires the use of the definition of “threat to the security of Canada” as defined in the CSIS Act.

Whether the protests met the legal definition of a threat to the security of Canada was one of the most contentious elements of the Emergencies Act inquiry.

The government argued it was justified because it didn’t have to follow the strict definition included in the CSIS Act for a threat to the security of Canada and could instead use a different interpretation of the same term. The government only disclosed that it had used a different definition months after invoking the act.

Despite accepting the government’s justification for invoking the act, Justice Rouleau recommended the government remove the reference to the CSIS Act in the Emergencies Act. His recommendation was echoed by Justice Mosley, who said Parliament may want to consider such a change.

The government has appealed Justice Mosley’s decision. And on Wednesday the government said it will consider the court decisions that stem from the case as it decides “whether any amendments to the Emergencies Act are necessary.”

Among the 22 recommendations that pertained to the Emergencies Act, Justice Rouleau also said the government should modernize the definition of a public order emergency.

The government didn’t say Wednesday whether it would do that either. However, it did explicitly reject some recommendations. For example, it won’t go ahead with a recommendation that cabinet be required to release to an inquiry all information, advice and recommendations provided to cabinet, cabinet committees or individual ministers during the decision to invoke the act.

In a statement, Conservative spokesperson Sebastian Skamski didn’t disclose the party’s position on the recommendations, but in reference to the Federal Court ruling he said the Prime Minister “violated Canadians’ most fundamental rights and broke the highest law in the land when he invoked the Emergencies Act.”

New Democrats on the other hand said amendments should go ahead and criticized the government’s failure to even present a timeline to make changes. Amendments “would bring more clarity and direction, and less room for interpretation,” public safety critic and MP Peter Julian said.