The Liberals have heeded the age-old advice that governments should never set up public inquiries unless they know in advance what the findings will be.
In the case of
the inquiry into the proclamation of the Emergencies Act in February, the government has mandated Ontario appeals court judge Justice Paul Rouleau to focus on the actions of the Freedom Convoy protesters, rather than on holding the government accountable. The judge’s schedule is hectic — he has to report by next February. As such, he is likely to be so beset probing social media disinformation and cryptocurrency crowdsourcing that it will be a major surprise if he finds time to question the government’s role in all this.
Liberal efforts to control the scope of the inquiry have arraigned an unholy alliance of opposition, including civil liberties groups and the opposition parties (not counting the NDP of coarse).
“The requirement to call an inquiry was put into the Emergencies Act to ensure 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,” said Abby Deshman, director of the criminal justice program at the Canadian Civil Liberties Association.
The question of whether the Trudeau government’s
unprecedented use of the Emergencies Act met the legal threshold — namely, that there was a threat to the sovereignty and security of Canada that could not be dealt with under existing laws — is not mentioned in the order in council directing the inquiry.
In question period on Tuesday, Conservative MP Michael Chong said that to answer the question of whether the government met the legal threshold, the judge needs access to cabinet documents. “Former prime minister Harper waived cabinet confidences in the Retired Vice-Admiral Mark Norman case and in the Senator Mike Duffy case. Will the government do the same for the public inquiry?” he asked.
If Justice Rouleau does delve into the delicate subject of government accountability, he will likely find, as in the SNC Lavalin investigation, that cabinet documents are out of bounds
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Public Safety Minister, Marco Mendicino, said that the government is prepared to “shine a light” (?) on events leading to the proclamation of the act. He said the order in council makes clear the judge has the independent power to compel witnesses and documents, including classified information.
But if you believe that, I have some inflation-proof Bitcoin to sell you. The government knows what the inquiry will find because it has rigged the system.
Justin Trudeau said Justice Rouleau will look into the circumstances that led to the Emergencies Act being invoked and make recommendations to “prevent these events from happening again” (my italics). For the prime minister, it’s all about the context. The judge has marching orders to look at the evolution of the convoy, including its leadership and its participants; to examine the impact of domestic and foreign funding; to look at the role of misinformation and disinformation, including the use of social media; to assess the economic impact; and to look at the efforts of police.
If Justice Rouleau does find a minute to delve into the delicate subject of government accountability, he will likely find, as did Ethics Commissioner Mario Dion in the SNC Lavalin investigation, that cabinet documents are ruled out of bounds. The decision on what is released is the decision of the clerk of the Privy Council, Janice Charette, according to Section 39 of the Canada Evidence Act. And she has already ruled in an ongoing court case into the invocation of the Emergencies Act that the minutes of the Incident Response Group cabinet committee and submissions to cabinet by Mendicino should be omitted from the government’s response.
The Canadian Constitutional Foundation (CCF) is applying for a judicial review of the government’s decision in Federal Court but has found itself stymied from accessing what its counsel calls “the most relevant evidence and explanations.”
According to Mendicino’s own account, which was tabled in Parliament, the decision to invoke the act was made after “robust discussions” by the Incident Response Group at meetings on February 10, 12 and 13th (the act was invoked on February 14th). As the CCF submission makes clear, without that information, the record is silent on whether cabinet had reasonable grounds to believe that the blockade could not be dealt with under any other law.
Sujit Choudhry, counsel for the CCF, said he is now seeking that information on a counsel-only basis to protect its confidentiality, with a hearing at the end of May.
“If you don’t share that evidence, you are effectively saying ‘just trust us.’ But that’s not how we do law in this country,” said Choudhry.
It would be nice if he is right. But having watched for too many years how governments work, my heart is crusted with the snows of pessimism and the ice of cynicism.
The available evidence suggests that the government overreached with the Emergencies Act. It shows that police cleared protests in Coutts, Alta. and Windsor, Ont. without resorting to the Emergency Act’s provisions. It records that Emergency Preparedness Minister Bill Blair said publicly that police had all the tools they needed the week before the act was invoked. It reveals Mendicino referred to protesters as being “driven by an ideology to overthrow the government” without presenting any proof.
Even if true, as the Canadian Civil Liberties Association says in its ongoing lawsuit with the federal government, the presence of a small number of dangerous individuals in a specific location, while concerning, would not be enough to justify the proclamation of a nationwide emergency. “A proclamation of emergency cannot be grounded in nebulous and strained claims about unspecified danger,” it says in its court filing.
The Emergencies Act was designed as a measure of last resort, which is why it was never used before February 14th. Tommy Douglas, the NDP’s founder, referred to the use of its predecessor legislation, the War Measures Act, by the current prime minister’s father as a “sledgehammer used to crack a peanut.”
Unless the government releases stunning new information, the only conclusion that can be reached is that the response was disproportionate to the threat — “unnecessary, unjustifiable and unconstitutional,” in the words of its opponents.
But it seems very unlikely that the public inquiry will reach the same conclusion.