Emergencies Act justified in trucker convoy removal 

Rouleau concluded with a list of suggestions to improve the Emergencies Act

‘Unprecedented’ is a word we have all heard too often in the last few years, though it is certainly an apt description of the first use of the Emergency Act in its 35-year existence. A year after the emergency, the Public Order Emergency Commission (POEC) has released its final report as required by the Emergency Act on February 17, 2023.  

POEC was formally called on April 25, 2022, two months after the Emergency Act was revoked. The Emergency Act requires that a final report be released within 360 days from its revocation, meaning Judge Paul S. Rouleau and his team put the report together fast. For comparison, the Air India inquiry which investigated the bombing of a plane took four years.  

The report was headed by the Honourable Paul S. Rouleau who has been a judge in various parts of the country for over 20 years. Rouleau grew up in Ottawa and was a partner at various law firms between 1979-2002 before becoming a judge. Despite online rumours, he is not related to Justin Trudeau. He does, however, have a cousin who is married to Jean Chretien’s daughter and was formerly involved with the Liberal party before starting his law career in 1979, though he has made no donations to the Liberal party since at least before 2002 when he became a judge.  

POEC’s mandate is also laid out in the Emergency Act, which is to examine “the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” 

This mandate enables the public to receive an unusual amount of transparency towards the decision-making process leading up to and during the use of the Emergency Act. One issue that was not clear to the committee is whether or not it is within POEC’s mandate to assess the legal validity of the government’s decision to invoke the Emergency Act. In his final report, Rouleau said the Emergency Act is a “complex, multi-layered legislative scheme enacted more than 35 years ago in a very different social and political context.” Given this difficulty, Rouleau said there was “no precedent” for whether he should render a judgement.  

In the end, Rouleau decided that, in the interest of transparency, he would offer his analysis, concluding “the decision to invoke the Act was appropriate.” 

However, POEC’s final decision is not legally binding, and Rouleau was careful to state that the legality ultimately rests upon decisions by the courts of Canada.  

Several cases surrounding the legality of the Emergency Act’s invocation are before the courts currently. One such case is being brought by the Canadian Civil Liberties Association (CCLA), a non-governmental organization whose purpose is to defend civil liberties. The CCLA also notably objected to the use of the War Measures Act by Pierre Trudeau in the 1970s.  

While POEC’s findings are not legally binding, a decision by the judge in the CCLA’s case will allow the evidence gathered by POEC to be admissible in the court case.  

The CCLA has stated that it disagrees with the conclusion drawn by Rouleau but thanks POEC for a contribution “to greater transparency and understanding.” 

Despite finding the invocation of the Emergency Act to be appropriate, Rouleau did find some specific actions taken to be unnecessary and included a list of recommendations in the final report. Namely, the federal government’s use of emergency powers to designate “protected places” turn certain people away from crossing the border, and certain elements of freezing protester’s assets were seen as inappropriate by Rouleau.  

The power to designate “protected places” was criticized because the wording about what was allowed as a protected place was too vague and the government had too broad a power to designate areas as protected. While this power was thought to be designed poorly, it was not used during the emergency. 

The measure taken to turn away people at the border was criticized due to its ineffectiveness, though Rouleau thought that it may have been reasonable at the time. At the heart of Rouleau’s criticism is the fact that people could already be turned away at the border for not being vaccinated, so this measure was likely redundant. 

Finally, the asset freezing that occurred during the emergency has received a great deal of criticism. He did find the freezing of bank accounts appropriate, but stated that if the emergency went on longer it would have required a way for people to unfreeze their accounts and it would be preferable to have a humanitarian clause that would have allowed protesters to access money for essential needs like medicine. Related to the freezing of bank accounts was the power that the government had to freeze protesters’ car insurance. Rouleau found this measure inappropriate, since it would be counterproductive to have protesters leave Ottawa on foot or risk innocent bystanders by driving uninsured. However, freezing protester’s insurance did not end up being implemented.  

Aside from the Emergency Act itself, Rouleau did identify several failings leading up to the invocation of the Emergency Act, saying that the invocation “could have been avoided.” Rouleau also pointed to previous pandemics in history and called the civil unrest “not entirely unpredictable.” 

Leading up to the declaration of an emergency, the final report identified “a series of policing failures” and a “failure in federalism.” 

The recommendations for policing are extensive, though centre on two themes: a need for better coordination on a large scale and a need for better use of Police Liaison Teams, the teams that negotiate with protesters to help reach compromises.  

Rouleau also recommends that the Emergency Act be significantly updated. First, the definition of a public order emergency needs to be modernized. The Act also does not require consultation with the territories or with Indigenous leaders, which Rouleau thinks should be changed. Rouleau also believes that the Act’s direction to an inquiry like this in the future should be clearer in what it requires both from the government and from the inquiry.  

An issue Rouleau ran into during the inquiry was Premier Doug Ford’s claim of privilege, allowing him to refuse testifying to POEC. Rouleau recommends that the Emergency Act be changed to remove claims of privilege by government officials.  

The report concludes with a call to have the Trudeau government submit a response within one year outlining which recommendations will be implemented and how they plan to do so.