Commissioner Paul Rouleau has released the final report of the inquiry into the federal government’s use of the Emergencies Act to clear the Freedom Convoy trucker occupation protests against Coronavirus Disease 2019 (COVID-19) mandates in February of 2022.
Rouleau’s main finding was that the government had met the “very high” threshold to invoke the Act.
Rouleau Report
The final report of the Public Order Emergency Commission (POEC), which is composed of 2,000 pages and five volumes, was released on Feb. 17.
“After careful reflection, I have concluded that the very high threshold required for the invocation of the act was met,” Rouleau said at a press conference following its release.
“I have concluded that when the decision was made to invoke the act on Feb. 14, 2022, cabinet had reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.”
Success
You are now signed up for our newsletter
Success
Check your email to complete sign up
The Freedom Convoy started in January of 2022 as a demonstration by truck drivers opposed to a Trudeau administration requirement that cross-border truckers must show a COVID vaccine passport, but as large numbers of citizens from across the country began joining in, the Convoy became the main catalyst for the removal of virtually all pandemic mandates and restrictions across Canada.
The ruling Liberal Party minority government refused to have any communications with protesters, instead resorting to employing sweeping national security powers to clear protests blockades scattered throughout the country.
The Emergencies Act was invoked although a border blockade in Windsor had been cleared using regular police enforcement while similar protesters in Coutts and Emerson voluntarily dispersed prior.
On Feb. 14, 2022, Prime Minister Justin Trudeau invoked the Emergencies Act for the first time since its creation in 1988 as a replacement for the War Measures Act, and revoked it on Feb. 23, 2022, once the central protest in the nation’s capital, Ottawa, was cleared.
The POEC inquiry was launched last year as required by the Emergencies Act to evaluate the government’s use of the Act in response to the protests.
In his report, Rouleau, an Ontario Court of Appeal Justice, said he reached his conclusion with “reluctance,” as such emergency measures should only be used on rare occasions.
“It is only in rare instances, when the state cannot otherwise fulfill its fundamental obligation to ensure the safety and security of people and property, that resort to emergency measures will be found to be appropriate,” he wrote.
More than policing failures
Rouleau evaluated that there were a series of policing failures throughout the protests that led to the situation getting out of control.
“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote.
He also says what transpired throughout the events can be seen as a “failure of federalism.”
“In Canada, our federal system of government enriches democracy by striving to maintain national unity while supporting regional diversity. But fulfilling these promises depends on cooperation and collaboration,” the report states.
Rouleau also noted that the government’s messaging inflamed the protesters.
The report says that ahead of the Convoy’s arrival in Ottawa, Trudeau on Jan. 27 referred to the protesters as a “small fringe minority” who hold “unacceptable views” and who do not “represent the views of Canadians.”
The report also made reference to a Jan. 31 press conference held by Trudeau in which he again disparaged the protesters.
“This served to energize the protesters, hardening their resolve and further embittering them toward government authorities,” Rouleau wrote.
Rouleau said political leaders from different levels of government should have made more effort to acknowledge that the majority of the protesters were exercising “their fundamental democratic rights.”
“The Freedom Convoy garnered support from many frustrated Canadians who simply wished to protest what they perceived as government overreach,” he said.
“Messaging by politicians, public officials and, to some extent, the media should have been more balanced and drawn a clearer distinction between those who were protesting peacefully and those who were not,” the Justice stated.
Rouleau also said that while he found that the measures taken by the federal government were for the most part appropriate, there were deficiencies, including how it implemented a controversial method of freezing the financial assets of protesters.
Uncertain threats
The Emergencies Act requires that before it can be invoked, there needs to be a “threat to the security of Canada” as defined in the Canadian Security Intelligence Service (CSIS) Act.
Throughout the POEC, this definition was referenced by some of the opponents of the government’s use of the Act, saying that none of the four categories of defined threats, namely: espionage and sabotage, foreign-influenced activities, threats or acts of serious violence with ideological motives, and violent revolution, were present during the protests.
Both the head of CSIS, David Vigneault, and RCMP Commissioner Brenda Lucki made a similar assessment during the inquiry last November as far as the determination of the presence of a national emergency according to the CSIS Act is concerned.
However, Rouleau noted that Justice Minister David Lametti told the inquiry on Nov. 23 that the decision making process on the use of the Act doesn’t rest with CSIS, but with the government, and that the government uses a “wider set of criteria by a very different set of people with a different goal in mind” to make its interpretation of the threats present.
“There was an objective basis for Cabinet’s belief, based on compelling and credible information. That was what was required. The standard of reasonable grounds to believe does not require certainty,” Lametti stated.
Rouleau made a number of recommendations to modify the Emergencies Act, including removing the reference to the CSIS Act on how to define threats.
Undisclosed legal advice
Eight federal Cabinet Ministers testified in November that they received legal advice from government lawyers, telling them the legal threshold had been met to invoke the Act. However, they did not disclose the advice to the Commissioner.
Although having expressed some concerns about not seeing the legal advice when Justice Minister David Lametti testified at the inquiry in November, Rouleau wrote in his report that he took at face value the testimonies from federal Ministers and officials about the legal thresholds being met, and would have been unable to release the legal advice as it would be protected by solicitor-client privilege.
“I do not need to see the legal advice itself in order to accept the evidence that they believed their conclusion to be justified in law,” Rouleau stated.
Civil liberties groups have criticized Rouleau’s finding and the government’s decision not to release the legal opinions it acted upon.
“The commissioner recommends in his report that the government should be bound to produce all of the inputs to the cabinet and the ministers that had [been] relied upon to invoke the Emergencies Act,” said Ewa Krajewska on Feb. 17, a lawyer who worked with the Canadian Civil Liberties Association (CCLA) during the Commission.
Perrin Beatty, a former Cabinet Minister under the Mulroney administration who oversaw the process to replace the War Measures Act with the Emergencies Act in 1988, says the Trudeau government should release the legal opinion it used to justify invoking the Act last winter.
“I believe the government should release the legal opinion it relied on,” tweeted Beatty on Feb. 22. “How can you ask Canadians to obey the law when you won’t tell them what it is?”
The final say
Disagreeing with Rouleau’s main conclusion, several civil liberties groups, including the CCLA, The Justice Centre for Constitutional Freedoms (JCCF), and The Democracy Fund (TDF), as well as the Province of Alberta, have said that the Commission does not have the final word on the legality of the Act’s invocation, and federal courts must rule on its use against the Freedom Convoy in Ottawa.
These groups are currently challenging the use of the Act in court.
Cara Zwiebel, a CCLA director and co-counsel for the Association before the Commission, noted that Rouleau reached his decision with reluctance and also said his report is not binding on courts that could be hearing legal challenges.
“The Commissioner noted that the factual basis underlying his conclusion was not overwhelming, and that reasonable and informed people could come to a different conclusion than the one he did. Our view remains that this threshold was not met,” Zwibel said at a press conference on Feb. 17.
“Justice Rouleau acknowledged in his report that his task was not to assess the legality of the government’s decision to invoke the act. That is the job of the courts. And that is why we initiated and maintained our application for judicial review before the federal court. The court will assess the legality of the declaration and also consider the legality and constitutionality of the emergency measures that were put in place,” she added.
