Article content
This week marks one-year since the Trudeau government invoked the Emergencies Act in response to the Freedom Convoy protests, and on that anniversary, the Liberals are fighting a war on two fronts defending their decision to use that extraordinary legislation.
The Rouleau Commission, which is the independent inquiry looking into the government’s decision to invoke the Emergencies Act, is expected to table the final report on February 20. And on February 13, the national civil liberties group the Canadian Constitution Foundation filed their factum in the federal court judicial review challenging the use of the act.
The outcome of the inquiry is not determinative of the federal court judicial review. They are separate procedures with very different rules and in very different forums. And both present different opportunities.
The Rouleau Commission’s mandate is to examine and assess the basis for the Government’s decision to declare a public order emergency, the circumstances that led to the declaration, and the appropriateness and effectiveness of the measures selected by the government to deal with the situation. It is within the mandate of the inquiry to say if the Trudeau government was right to invoke the Emergencies Act. This was the central question the inquiry was seized with during those long seven weeks of hearings held in Ottawa last November.
What Commissioner Rouleau says about whether the statutory threshold for invoking the act was met will have serious political implications. However, the inquiry report is not about finding any type of liability, and the commissioner can make recommendations but not orders.
Meanwhile, hearings in the federal court judicial review have been scheduled for the first week of April. Unlike the inquiry, which is funded by the government, the judicial review was brought independently by several different organizations, including the Canadian Constitution Foundation, Canadian Civil Liberties Association. In their factum, the CCF has argued that cabinet did not have reasonable grounds to conclude that the protests were threats to the national security of Canada or to conclude that the protests could not be effectively dealt with under existing law. The CCF also makes extensive arguments about the unconstitutionality of the powers created by the regulations under the Emergencies Act. These included the regulations that restricted public assembly and froze bank accounts. The CCF’s position is that regulations and economic measures were in violation of the charter.
Unlike the Inquiry, the federal court can make orders. The court has been asked to make a declaration that the emergency proclamation and regulations were illegal, and that the regulations and economic measures were unconstitutional under the charter.
Both the judicial review and the inquiry have significant potential to impact how this legislation can be used in the future. This was the first time the Emergencies Act was used since it was enacted in 1988. The Emergencies Act is the successor to the War Measures Act. It gives tremendous power to the prime minister and cabinet, including the power to create new criminal law by executive order. These are powers that must have a high threshold and which we all should be wary of in a liberal democracy.
In different ways both the federal court and the inquiry have opportunities to build a legal framework around that legislation, and around the judicial review of emergency powers. The Inquiry included a lengthy policy consultation phase that considered recommendations for how the Emergencies Act could be reformed. And the federal court has an opportunity to treat this judicial review as the test case for the use and review of the legislation.
The Emergencies Act should be treated as the exceptional legislation that it is, and that Parliament intended it to be. Both the Inquiry and the federal court have opportunities to make that clear to the government, who in this case, acted rashly by improperly invoking the law. The hope of civil liberties groups is that there will be both political and legal consequences to that decision.
https://nationalpost.com/opinion/trudeau-governments-rash-use-of-emergencies-act-deserves-consequences
No comments:
Post a Comment