By EPOCH TIMES April 26, 2022
As the federal government calls a public inquiry into the use of the Emergency Act, a diverse coalition of civil society groups is watching closely to ensure the investigation is broad in scope and independent.
Prime Minister Justin Trudeau invoked the Act for the first time since its creation on Feb. 14 in response to the Freedom Convoy protests, giving the federal government broad powers to deal with demonstrations against COVID-19 mandates in Ottawa and at some border crossings.
It was revoked on Feb. 23, after police cleared the protesters in the nation’s capital and a remaining border site was evacuated. By law, an inquiry into the use of the act must be called within 60 days of the declaration being cancelled, which lands on April 25.
“It really is a very bare-bones legal requirement,” Abby Deshman, the director of the criminal justice program with the Canadian Civil Liberties Association, told The Epoch Times.
“And in order for that to happen, an inquiry has to be independent, it has to be robust, it has to be comprehensive, and [have] a broad enough scope that it can actually review the surrounding context and beyond the government’s use of powers.”
Invocation of Act Under Scrutiny
In addition to the public inquiry and a separate special parliamentary committee, four groups and the province of Alberta have launched legal challenges to scrutinize the government’s use of the emergency law.
The CCLA and the Canadian Constitution Foundation (CCF) are among those with cases currently before the Federal Court.
In documents related to a court challenge filed by the CCF on April 22, Ottawa says it will not reveal evidence from closed-door cabinet meetings that led it to the use of the emergency law, according to a report from The Globe and Mail. The Trudeau government cited cabinet confidentiality powers given to ruling parties under the Canada Evidence Act in its response to the legal challenge.
Calgary-based CCF is asking the Federal Court to order cabinet to reveal the information to the judge and counsel involved.
The coalition of 15 civil society groups—which includes Amnesty International Canada, the Women’s Legal Education and Action Fund, National Council of Canadian Muslims, and Democracy Watch—are challenging Ottawa to release all requests for evidence within an independent inquiry.
They say it’s crucial the government allows opposition parties to select the commissioner or commissioners to assure the investigation is neutral.
The groups released a joint statement on April 13, arguing whoever leads the investigation should have all the powers of commissioners appointed under the federal Inquiries Act. That includes the ability to summon witnesses to give sworn testimonies in a court of record, and the requirement for witnesses to produce documents and written evidence.
“Let’s be crystal clear: an inquiry that does not include the sworn testimony of the major players involved and the production of documents is a sham,” Cara Zwibel, director of the fundamental freedoms program with the CCLA, said in a statement.
Canada’s Privy Council Office (PCO), which serves as the bureaucracy for the Prime Minister’s Office and co-ordinates government actions across departments, says an inquiry is set to be established by April 25.
“The report of the inquiry must be tabled in each House of Parliament within 360 days of the revocation of the emergency declaration,” a PCO spokesperson said in an emailed statement. “Further details will be announced in due course.”
‘Fatal Flaw’
Under the Inquiries Act, the cabinet is allowed to select the commissioner of public inquiries—even if it’s an investigation is into actions of the ruling party.
Duff Conacher, co-founder of Democracy Watch, calls the provision of the law a “fatal flaw” that undermines Canada’s democratic process of holding the ruling party accountable.
“The government has all the incentive to choose some lapdog who’s not going do their job well, and let them off the hook in the end,” he told The Epoch Times. “It’s a major conflict of interest.”
Under Section 63 of the emergency law, Conacher says the government cannot limit the scope of the investigation for its use.
It’s “extremely important” to watch whether Trudeau hands over the power to opposition parties to select an inquiry commission, he says, because it was a political act to declare the emergency in the first place.
Since 2016, Democracy Watch has launched a number of legal challenges against the federal government, including two conflict of interest cases for its appointments of the ethics commissioner and the lobbying commissioner.
While the Federal Court of Appeal dismissed both cases, Conacher notes that it ruled the Trudeau cabinet was biased in each of its selections.
In a 2001 ruling, the Supreme Court of Canada set a precedent that all agencies, boards, commissions, and tribunals that enforce laws but are not courts, can be handpicked by the ruling party, even if there’s a conflict of interest.
“It’s a really bad ruling,” Conacher says. “It’s undermining the law enforcement across the country because it means that cabinets often choose loyal lapdogs to enforce key laws.”
Asking for an Independent Process
Since it was announced, the CCLA and Democracy Watch has maintained their position that the federal government did not meet the legal threshold necessary to invoke the Emergencies Act. Premiers in Saskatchewan, Alberta, Manitoba, and Quebec also expressed concern over invoking the act, while some maritime premiers said it wasn’t needed.
The law defines a national emergency as an urgent situation that seriously endangers lives, health, or safety, and that cannot be effectively dealt with under any other law.
Deshman says the group has a tentative hearing date set for July for its Federal Court challenge. But she maintains the court case will remain a separate process from the public inquiry.
“The orders that the government passed raised significant constitutional issues and infringed on Canadian’s Charter rights in a way that was not justifiable,” she said. “But we’re not here to control the outcome of the inquiry. What we want is a truly independent process.”
The CCLA says the act allowed the Liberals to bypass regular democratic checks and balances to put in measures that weren’t rigorously debated by elected officials in parliament.
Deshman notes this led to a suspension of the Charter and constitutional rights of every Canadian, including significant limits on peaceful assembly. The act also handed police broad powers to end protests and empowered financial institutions to freeze bank accounts of individuals suspected of being involved in the protest without requiring a court order.
John Packer, a constitutional expert with the University of Ottawa Human Rights Research and Education Centre, says it’s good for Canadian society that civil rights groups want to hold the government to the highest standard in the courts by calling for a robust inquiry.
The 1988 Emergencies Act is not a piece of legislation to be “flippant” about, he says, because it involves the most serious of elements from a democratic point of view. And since the government almost immediately revoked the emergency law, Packer questions whether it had the merit in the first place to invoke it.
“We, as a society, better have pretty good clarity on this, because it also does set a precedent if it happens in another circumstance,” he told The Epoch Times. “We should all be immediately sitting up and on our toes whenever an emergency act is invoked.”
Packer says the emergency law was well drafted because of the protections in it, such as calling for an independent inquiry.
If the inquiry proves the government did not have reasonable grounds to invoke the law, there should be pretty severe consequences, Packer says, to prevent its misuse in the future.
It would also raise questions about whether our government understands our own democracy, which Packer adds is “pretty huge” if the people in charge don’t grasp the limits of their power.
“At the end of the day, what makes us a democracy is that our government is accountable to us, to you and me, to the people,” Packer said.
Trudeau cited “serious challenges to law enforcement’s ability to effectively enforce the law,” when he first announced its use.
“This is about keeping Canadians safe, protecting people’s jobs, and restoring confidence in our institutions,” he said.
According to Trudeau, the protests in Ottawa and at some border sites were illegal, dangerous, and a threat to the Canadian economy. He said the use of emergency legislation was necessary to give police the tools to restore order.
According to the court challenge filed by the CCF, the federal government intends to argue that the case is now moot, as the state of emergency has ended, and that the civil rights group lacks standing, or the right to bring the case.
House Committee Review
In March, the House of Commons formally selected a special joint committee to review the use of the Emergencies Act.
Made up of seven MPs and four senators, representing each of Parliament’s recognized parties and groups, it continues to review the exercising of powers given under the Act.
The committee—which is co-chaired by NDP MP Matthew Green, Bloc MP Rheal Fortin, and Independent Sen. Gwen Boniface—is set to meet on April 26. It has yet to release any findings.
Conservatives accused the government of ducking accountability by not including a member of the Official Opposition to co-chair the committee. Trudeau’s proposal for the committee’s makeup includes three Liberal MPs, and passed House by a vote of 214 to 115, with the support of NDP, Bloc Quebecois, and Green MPs.
Conservative House leader John Brassard said the Liberals, “backed by their NDP allies” were weakening the accountability and oversight measures written in the emergency proclamation.
“The Emergencies Act itself requires an opposition-heavy committee to review the use of those powers, because in a healthy democracy, the government of the day cannot be allowed to police itself,” he said in a statement.