The federal government announced a public inquiry into its decision to use the Emergencies Act to bring an end to February’s convoy protests – but, despite Ottawa’s assurances that the probe will be independent, critics say they worry it may not hold officials to account.
Paul Rouleau, a judge on the Ontario Court of Appeal, will be the inquiry’s commissioner, the government said on Monday. Public Safety Minister Marco Mendicino told reporters the judge will be able to compel witnesses.
When asked if Justice Rouleau will have full access to cabinet documents, Mr. Mendicino said he will have “broad access,” including to classified documents, and that it is the government’s intention to collaborate with him. The minister would not specify whether the government would waive cabinet confidence.
Mr. Mendicino said he could not say how much of the information gathered by the inquiry will be made public. He said the question was “very important,” but that it should be posed to Justice Rouleau, who was not present during the minister’s remarks.
The choice to invoke the act led to much political scrutiny of the Trudeau government from critics, who said the move granted officials emergency powers that were far more sweeping than required under the circumstances. The emergency declaration was supported by the federal New Democrats, but opposed by the Conservatives and Bloc Québécois.
The Conservatives expressed skepticism on Monday that the inquiry will achieve its stated aims. The party’s emergency preparedness critic, Dane Lloyd, said the government is “doing everything in their power to try and ensure that this inquiry fails to hold them accountable, and to whitewash their actions.”
In a Monday announcement, the Prime Minister’s Office said the commission will examine the circumstances that led to the emergency declaration being issued, measures taken in response to the emergency, the impact of funding and disinformation on the protests, the incident’s economic effects and the efforts of police and other responders prior to and after the emergency declaration was issued.
Abby Deshman, director of the Canadian Civil Liberties Association’s criminal justice program, said the government’s public comments suggest that it hopes the inquiry will look primarily at the actions of protesters. But, she said, there is a requirement in the act to ensure what she called a “robust examination of the government’s use of emergency powers.”
“The broader context is important, but the government’s attempts to divert attention from their own actions is concerning,” she said, adding that the CCLA is proceeding with litigation to challenge the government’s use of the act.
Mr. Mendicino, who maintained on Monday that the use of the Emergencies Act was both responsible and necessary, said one of the hallmarks of the public inquiry will be that Justice Rouleau will have the ability to function independently of the federal government.
“This is not just about checking a box off,” Mr. Mendicino said. “This is healthy for our democracy.”
Under the provisions of the Emergencies Act, the government is required to call a public inquiry within 60 days after the end of an emergency declaration. Justice Rouleau’s appointment happened on the final day of that period.
The inquiry’s final report, which will contain findings and recommendations in both official languages, is required to be to tabled in the House of Commons and Senate by Feb. 20, 2023.
The government invoked the Emergencies Act on Feb. 14. The decision granted it extraordinary powers, including the ability to allow banks to freeze personal and corporate bank accounts without court orders. At the time, Prime Minister Justin Trudeau described the act’s use as a “last resort,” taken in response to prolonged and disruptive demonstrations against pandemic restrictions. The protests shut down central Ottawa for weeks and blocked traffic at vital border crossings in Alberta, Manitoba and British Columbia.
The government lifted the emergency declaration on Feb. 23, following a massive police effort to dislodge the protesters, many of whom were using trucks and other vehicles as makeshift blockades.
The Emergencies Act also requires the government to establish a special joint committee of the House of Commons and the Senate to examine its actions. That committee’s work is under way, and key witnesses are set to appear before it on Tuesday, including Mr. Mendicino, the RCMP’s Commissioner and the director of the Canadian Security Intelligence Service.
NDP MP Matthew Green said his party is interested in having an inquiry that is fully transparent, provides for accountability and examines the failures of different levels of government. He said the New Democrats supported the use of the act based on information that was publicly available at the time.
The government has faced legal challenges from the CCLA and other groups over its use of the Emergencies Act. When asked why Ottawa had cited cabinet confidentiality in order to avoid revealing information in response to those challenges, Mr. Mendicino said it is important to distinguish that process from the one announced Monday.
“There is litigation that is before a separate judge, a separate court, involving different litigants, and obviously it will be up to that tribunal and that judge to make determinations about what access is required,” he said. “What we’re launching today is a public inquiry in fulfillment of our obligations under the Emergencies Act.”
Justice Rouleau said in a statement Monday that he will work to establish the commission in the coming days and weeks and will offer more information soon. He also said he is committed to ensuring the process is as open and transparent as possible, in recognition of the tight timelines for reporting imposed by the Emergencies Act.
He was appointed to the Superior Court of Ontario in 2002, then to the Court of Appeal for Ontario in 2005. He has also served as a deputy judge of the Supreme Court of Yukon, the Nunavut Court of Justice and the Supreme Court of the Northwest Territories.
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