DEDC Committee Report

JUSTIN TRUDEAU’S POLITICAL EMERGENCY

Dissenting Opinions of the Official Opposition

For nine years, Prime Minister Justin Trudeau has divided Canadians.  Invoking the Emergencies Act in February 2022 was the very height of his efforts.

For nine years, Mr. Trudeau has done nothing but attack the hard-working Canadians who deliver our food and goods, who build our homes, and who work in our factories.  He sought to distract Canadians from the failures of his government.  He sought to make Canadians afraid of their neighbours, hoping that if they were afraid they would forget that they cannot afford to put food on the table or pay their rent, that they would forget about their family and friends dying every day from overdoses, or that their dreams of home-ownership are evaporating.

Mr. Trudeau’s divisive rhetoric in early 2022 “served to energize the protestors, hardening their resolve and further embittering them towards government authorities,” according to the Public Order Emergency Commission (better known as the Rouleau Commission).[1]

Even Liberals agree; during the pandemic, “a decision was made to wedge, to divide, and to stigmatize,” according to Liberal MP Joël Lightbound,[2] who has since been replaced as chair of the Liberals’ Quebec caucus.

Just as Mr. Trudeau sought to distract, his government sought to avoid much needed accountability and openness.  The work of the Special Joint Committee on the Declaration of Emergency was, in equal parts, revealing and deeply frustrating.  While a number of key points came to light during our study, though more due to the Rouleau Commission process, it was clear that a government which appropriated to itself sweeping authority and powers, to bypass the legislative procedures of Parliament and to intrude upon provincial jurisdiction, had no genuine interest in being open and accountable for its choices and decisions.

While we agree with some aspects of the Committee’s report, and some of its recommendations, Conservatives fundamentally disagree that the Liberal government was justified and within its rights to invoke the Emergencies Act as well as the recommendations which, in our view, would roll back government accountability about any future national emergency.

Moreover, the Federal Court has made a landmark ruling, finding that Justin Trudeau’s Liberal government illegally invoked the Emergencies Act and used it to violate Canadians’ most essential constitutional rights to freedom of expression and to be secure against unreasonable search and seizure.  Conservatives believe that the Liberals must answer for their reckless abandonment of the law and the most basic freedoms of all Canadians.

We know that Mr. Trudeau will never stop dividing Canadians, because we know that he will never stop trying to distract Canadians from his failures.  Canadians deserve better.  Conservatives will repair the bonds that Mr. Trudeau has broken.  A Pierre Poilievre government will turn the hurt Canadians are feeling into the hope they need.

Justin Trudeau’s invocation of the Emergencies Act failed in several ways

Justin Trudeau’s failed to satisfy the necessary legal thresholds in declaring an “emergency”

In failing to denounce the government’s flawed decision, the Committee majority has embraced the Liberal line that the government appropriately invoked the Emergencies Act in 2022, relying upon the Rouleau Commission Report as providing a clean bill of health.  Despite that, it must be recalled that Commissioner Rouleau wisely observed, however, that “I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming.  Reasonable and informed people could reach a different conclusion than the one I arrived at.”[3]  And we do. 

To us, we hear the Commissioner saying it was, in his own mind, a “51/49” call, at best.  Even then, we think that too generous to a government which, instead of easing tensions or trying to resolve the hurt Justin Trudeau caused, went out of its way to make the situation worse by name-calling and demonizing fellow Canadians. 

More recently—and in a legal and authoritative fashion—Mr. Justice Mosely of the Federal Court ruled “that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires.”[4]  For good measure, he added, “the record does not support a conclusion that [there was] a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada”,[5] leading him to conclude “that the [Liberal government] did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Act and the decision was ultra vires.”[6]

We are convinced that the Rouleau Commission would have reached the same conclusion as the Federal Court if it had access to the legal opinion which the government claims justified its invocation of the Emergencies Act.  Certainly, with the benefit of a judicial ruling on point, the Commissioner may well have found it even more troubling to arrive at the conclusion he did.

The artful language used at Commission proceedings about novel interpretations of the law, plus the obsessive secrecy in shielding it from sunlight, including the government’s outright refusal to turn over the legal opinions which our Committee ordered to be produced[7]—effectively, given the circumstances, carving out a secretive, undiscernible branch of criminal law—further diminished any confidence we had in there being a compelling case that the legal threshold was satisfied.  In fact, it is little wonder the government had also tried to shut down the Federal Court proceedings, before Mr. Justice Mosely could ever rule.[8] 

Regardless, based on the evidence available, Conservatives conclude that the scale of protests in winter 2022, and the protesters’ commitment to their cause, was directly proportional to the Prime Minister’s divisive rhetoric which stoked the situation.  As such, the use of the Emergencies Act “could have been avoided”, even according to the Rouleau Commission.[9]  Conservatives further conclude:

• That the declaration of a public order emergency in February 2022 was inappropriate, unnecessary and counterproductive to the democratic process; and
• That the thresholds required by the Emergencies Act for declaring a public order emergency in February 2022 were not met.

Justin Trudeau failed federalism by severely intruding into provincial jurisdiction

Parliament’s general jurisdiction to “make Laws for the Peace, Order and good Government of Canada”[10] has been interpreted as containing a so-called “emergency branch” which has been described thus by the leading constitutional scholar Peter Hogg: “In ‘a sufficiently great emergency such as that arising out of war’, the p.o.g.g. power would authorize laws which in normal times would be competent only to the provinces.”[11]

The Rouleau Commission astutely commented that “disruption of the ordinary rules of federalism should not be done lightly, nor accepted as appropriate without serious justification.”[12]

Yet, the Liberal government’s approach sadly fell well short of the mark here.  Certainly it was clear that the 2022 protests were not “war” by any stretch of the imagination.  Most provincial governments, including from multiple provinces where protests had been occurring, made clear both that the Emergencies Act was unwelcome and unnecessary and that the federal government simply had been ignoring more-routine types of requests for support and resources.[13]  Indeed, the Federal Court, too, agreed that the government’s position that there was an emergency “throughout Canada” was “an overstatement of the situation known to the Government at the time.”[14]

While we agree with some of the Committee’s recommendations concerning strengthening intergovernmental and inter-agency collaboration, Conservatives recognize that there were serious failures on the part of the federal Liberal government in overstepping, uninvited, into provincial jurisdiction without clear and obvious grounds for doing so.  Therefore, Conservatives recommend:

• That the Emergencies Act be amended to require the federal government, before issuing, continuing or amending a declaration of emergency, to take into account any recommendations by provincial governments; and
• That the Emergencies Act be amended to require the federal government, when issuing, continuing or amending a declaration of a public order emergency that applies to the whole of Canada to specify the grounds for its belief that the emergency exists throughout Canada.

Justin Trudeau failed national security by contorting legal definitions and dismissing professional advice to suit his political purposes

The then-Commissioner of the Royal Canadian Mounted Police (RCMP) had held the view that the Emergencies Act was not necessary to address the February 2022 protests.  These views were written into her remarks for briefing the Cabinet’s Incident Response Group and were even expressed by e-mail to the Chief of Staff of the then-Minister of Public Safety,[15] which was in turn sent directly to the Minister with the pertinent advice emboldened in red text,[16] ahead of a consequential Cabinet meeting.  Yet, her critical point of view was apparently not brought to the attention of ministers.[17]  While this should normally be utterly unbelievable, the whole saga around foreign election interference over the past few years has proven that, when it comes to national security, this Liberal government operates in full ignorance of any facts, conclusions or advice which runs counter to its interests and preferred narrative.

Indeed, the Liberals’ lack of searching for practical, everyday tools was obvious in the contrast with how others approached the situation.  The Attorney General of Ontario, for instance, secured a court order, under the Criminal Code, concerning protest funding;[18] and Ottawa residences pursuing a class action successfully sought a “Mareva injunction”, restricting the use of assets.[19]  Additionally, Zexi Li, a resident of Ottawa, the cities of Windsor and Ottawa, and a coalition of automobile industry interests each applied for—and obtained—court injunctions against protests.[20]  This all stood in contrast to the Liberal government which did nothing under its dramatic, showy legal overreach in declaring a national emergency.

To ensure essential advice does not fall through the cracks again, Conservatives recommend that the Emergencies Act be amended to require the prime minister and other responsible ministers, before the government issues, continues or amends a declaration of a public order emergency, to obtain written confirmations from the Commissioner of the RCMP, the leadership of the relevant provincial police service (where one exists) and the leadership of the relevant police of local jurisdiction that (a) all means available to them have been exhausted, and (b) they are unable to provide and execute operational plans to address the situation at hand in a timely manner.

Beyond the RCMP Commissioner’s own view, the then-Director of the Canadian Security Intelligence Service (CSIS) did not believe that the protests amounted to a “threat to the security of Canada” within the meaning assigned by the Canadian Security Intelligence Service Act,[21] an assessment the Federal Court held “must be given some weight.”[22]  This test, the so-called “CSIS Act threshold”, is incorporated by reference into the Emergencies Act and must be satisfied in order for a public order emergency to be declared.[23]  This was a point underscored by the Federal Court, ruling that this concept “must be interpreted with reference to the meaning of that term as it is defined in section 2 of the CSIS Act”.[24]

The fact that the CSIS Director was led to taking the position that a legal threshold he considered and applied daily was to be read totally differently, when the Prime Minister wanted it that way, through the genius of a “separate interpretation” of the law,[25] which the government steadfastly refuses to allow to see the light of day, underscores the notion that invoking the Emergencies Act was merely a political and communications exercise for a Prime Minister intent on dividing Canadians during tense times within society.

While we agree with the Committee’s recommendation to review the CSIS Act threshold, we absolutely cannot agree with recommendations which, ahead of that review, would remove the link between the CSIS Act threshold and the Emergencies Act or to consider “economic factors” in determining whether a public order emergency exists.  If anything, those latter two recommendations seriously undermine the Liberal government’s invocation of the Emergencies Act as justifiable and legitimate.  By seeking to amend the Act, after the fact, to legitimize the arguments and legal theories on which the government declared a national emergency makes it all the more obvious that there was little strength to them to begin with.

While we agree with the Committee’s recommendation for a “Charter statement” to be tabled, to increase the transparency which ought to surround such an extraordinary assumption of legal authority by a government, Conservatives further recommend:

• That the Emergencies Act be amended to require the federal government to lay before each House of Parliament the legal advice the government relied upon in declaring a national emergency, prior to each House voting on a motion to confirm the declaration of emergency, so that the House can make a properly informed decision; and
• That the Emergencies Act be amended to change the threshold for the federal government to declare a public order emergency from “believing on reasonable grounds” to “being satisfied on reasonable grounds” that an emergency exists.

Justin Trudeau’s “tools” for police, like his banking punishments, were recklessly unconstitutional and must not be repeated

When Marco Mendicino, the then-Public Safety Minister, was not claiming to Committee that law enforcement asked for the invocation of the Emergencies Act, he asserted that the Liberal government sought to support police with additional “tools”,[26] a position we would also hear from other government witnesses.[27]

The evidence and logic advanced before us to support these bold moves seemed flimsy.  Therefore, Conservatives conclude that the regulations and orders adopted during the February 2022 public order emergency, and especially those concerning financial accounts, unacceptably impinged on Canadians’ civil liberties.  Do not just take our word for it, though. 

Firstly, the Rouleau Commission concluded that the absence of flexibility as “concerning”,[28] found a failure to “provide for adequate procedural protections”,[29] and held the “lack of an unfreezing mechanism [to be] a failing”.[30]

Secondly, in a legally binding decision, the Federal Court ruled that those financial orders violated the right to be secure against unreasonable search and seizure, guaranteed by section 8 of the Canadian Charter of Rights and Freedoms,[31] in a manner that was not justifiable in a free and democratic society.[32]

But the Court did not stop there.  The complementary regulations adopted by the Liberal Cabinet equally offended constitutional rights “[b]y criminalizing the entire protest, the Regulations limited the right to expression of protestors who wanted to convey dissatisfaction with government policies, but who did not intend on participating in the blockades”,[33] rendering them “overbroad in so far as it captured people who simply wanted to join in the protest by standing on Parliament Hill carrying a placard.”[34]  Accordingly, Mr. Justice Mosley held that peaceful protesters’ constitutional freedom of expression was also infringed,[35] in a manner that, too, was not justifiable in a free and democratic society.[36]

In our modern, digital world, “de-banking” could have drastic implications for anyone; subjecting someone to them might have effects opposite to those its proponents might expect. 

Therefore, Conservatives cannot agree with the majority’s recommendation that “standardized processes” for freezing bank accounts should be developed.  Nothing about this drastic penalty should be normalized in any respect. 

Though we support the recommendation that a “Charter statement” must accompany any regulations and orders adopted to address an emergency, which might have helped curb the government’s excesses in 2022, Conservatives further recommend that the Emergencies Act be amended to change the threshold for the federal government to adopt regulations and orders in relation to a public order emergency from “believing on reasonable grounds” to “being satisfied on reasonable grounds” that their adoption is necessary to deal with the emergency.

National emergencies require strong accountability and oversight which Justin Trudeau failed to satisfy and his supporters wish to dilute

Perrin Beatty, dubbed the author or architect of the Emergencies Act, commented publicly that “The goal in drafting the act from start to finish was to create as much accountability and scrutiny as possible, and if you want people to be satisfied that the right decisions were made, then you have to have processes that are completely transparent.”[37]

We could not agree more which is why we regret the majority’s decision, instead, to make recommendations to circumscribe a future parliamentary review committee’s ability to scrutinize any government which seeks to exercise emergency powers.  The process which we experienced this time already had serious shortcomings, as it was.

To begin, we believe Mr. Mendicino blatantly misled the Committee when he told us:

• “The government remained engaged with law enforcement throughout to ensure that they had the support and the resources they needed.  However, when efforts using existing authorities proved ineffective, the advice we received was to invoke the Emergencies Act.”[38] 
• “The advice we were getting was that law enforcement needed the Emergencies Act….”[39]
• “…we invoked the act because it was the advice of non-partisan professional law enforcement….”[40]
• “As we took our decision in what we could do to respond, we were following the advice of various levels of law enforcement, including the RCMP and the commissioners….”[41]

Mr. Mendicino was baldly contradicted by an array of witnesses appearing before our Committee and the House of Commons Standing Committee on Procedure and House Affairs, including then-RCMP Commissioner Brenda Lucki,[42] then-Ottawa Interim Police Chief Steve Bell,[43] then-Gatineau Mayor France Bélisle,[44] former Ottawa Police Chief Peter Sloly,[45] then-Ottawa City Manager Steve Kanellakos,[46] then-Parliamentary Protective Service Acting Director, RCMP Superintendent Larry Brookson,[47] then-Minister of Emergency Management Bill Blair,[48] then-Ottawa Mayor Jim Watson,[49] and Ontario Provincial Police Commissioner Tom Carrique.[50]

As mentioned earlier, the government flatly ignored our Committee’s order to produce the legal opinions upon which it relied to determine that the thresholds necessary to invoke the Emergencies Act had been met.  Moreover, in the documents which were produced, the government also withheld Cabinet confidences despite Parliament’s authority to obtain the production of any records within its jurisdiction,[51] not to mention the fact the government actually released Cabinet confidences to the Rouleau Commission,[52] as well as in Federal Court proceedings.[53]

All told, this state of affairs has left Conservatives to conclude:

• That, in light of the evidence given to the Public Order Emergency Commission and to a committee of the House of Commons, Marco Mendicino deliberately misled the Committee during his appearance, particularly with regard to his assertion that the Emergencies Act was invoked on the advice of law enforcement;
• That the government failed to respect the Committee’s May 31, 2022, order for the production of documents, including applying unauthorized redactions and completely withholding all aspects of the legal advice considered by the government; and
• That the government unacceptably waited until after ministers and most senior officials had appeared as witnesses before the government decided on its partial waiver of Cabinet confidences in the documents it provided elsewhere than the Committee.

While we agree with the Committee’s recommendation for the government to keep a thorough written record for the use of a future parliamentary review committee (despite the circumscribed mandate our colleagues in the majority would impose upon it), Conservatives would also recommend that the Emergencies Act be amended to include explicit document preservation requirements related to any declaration of a national emergency, for the purposes of both the parliamentary review committee and the post-emergency inquiry, as well as for historical and archival purposes.

Additionally, to support transparency and accountability, Conservatives further recommend  that the Emergencies Act be amended to require the federal government to place before the parliamentary review committee (as well as the post-emergency inquiry) all information concerning the “inputs” for its decisions in relation to any declaration of emergency, or regulations or orders adopted in relation to it, including information that would normally be protected as Cabinet confidence or solicitor-client privilege, subject to safeguarding measures that the committee or inquiry, as the case may be, considers appropriate for that information.

Conservatives disagree with the majority’s recommendation to narrow the scope of the parliamentary review committee’s mandate solely to the period of a national emergency.  Government accountability to Parliament is a central tenet of our constitution; seeking to dilute it could prove to be reckless and short-sighted.  To the contrary, Conservative recommend that the Emergencies Act be amended to clarify expressly both the role of parliamentary oversight during an emergency and after-the-fact accountability.

While Conservatives agree with the recommendations that the parliamentary review committee must be struck promptly after a declaration of emergency and that resources for its meetings must be available on a priority basis, we would have gone further and made other recommendations to improve the exercise of oversight and accountability.  Given our conclusion that the Committee’s use of standard committee practices, typically designed for policy studies and deliberations, proved unsatisfying for an exercise largely oriented to government and institutional oversight and accountability, Conservatives recommend:

• That any ministers appearing before the committee give their evidence under oath or solemn affirmation; and
• That any future parliamentary review committee consider alternative evidence-gathering approaching, including (a) ordering the production of documents, from the outset, so as to support better questioning of witnesses; (b) inviting briefs from, or on behalf of, key actors in the national emergency, from the outset; (c) making greater use of written questions from members to witnesses and prospective witnesses, including prior to their appearances, so as to enhance witness selection decisions and to support better questioning of witnesses; (d) giving a role to external legal counsel, when appointed, to question witnesses either in advance of committee meetings or at the meetings; and (e) structuring questioning rounds in a fashion that permits more sustained lines of questioning, recognizing that many witnesses are appearing in fact-gathering and accountability contexts, rather than for policy deliberations.

To ensure an additional focus of accountability in the parliamentary review committee’s work, Conservatives also recommend that the Emergencies Act be amended to specify that the chair (or a co-chair) of the committee must be an opposition Member of the House of Commons.

Justin Trudeau compounded the lack of accountability by denying bilingualism resources

We were greatly concerned with the lack of dedication to bilingualism, especially by the Privy Council Office in supporting the Rouleau Commission.  Our Committee, in the interests of efficiency, chose to rely significantly upon the evidence-gathering of the Commission,[54] yet that was mostly done in a single official language, often English.  As a result, it bogged down our Committee’s ability to discharge its responsibility.  The Committee, midway through consideration of a draft report, had to suspend its work until key documents were finally available in both official languages.[55]

A key tenet of successful management of crisis or urgent situations is clear, intelligible communications.  In a bilingual country like Canada, that means doing so in each official language.  Because of the extraordinary powers assumed by governments in such situations, Conservatives conclude that that imperative of bilingualism must be equally applicable to scrutiny and oversight of national emergencies.  Therefore, Conservatives recommend that adequate resources be furnished to, or organized within, the Translation Bureau to support timely communication and deliberations concerning any business related to an invocation of the Emergencies Act.

Justin Trudeau should not dictate control over security at Canada’s Parliament, where Canadians come to be heard

Since the Parliament of Canada opened, Parliament Hill and the streets of downtown Ottawa have witnessed countless protests, demonstrations and other efforts to object to (or, even, to support) government policies, to raise awareness about issues and concerns, and to participate in public debates.  In the main, the events of winter 2022 were no different in spirit and intention, even if the tactics may have been unique.

Conservatives believe that decisions concerning parliamentary security operations—and particularly in striking the right balance in ensuring the Parliament of Canada is safe and secure while remaining open and accessible to all, including those peacefully protesting—be the responsibility of security and policing professionals.  Politicians should not be issuing operational instructions on these important issues.

While we agree that there should be collaboration among security partners on discussing the appropriate security footprint for Parliament Hill, and that any changes should be supported with adequate resources, we cannot agree with the majority’s recommendation taking the premature and political conclusion to include Wellington Street and to close it to vehicular traffic.

We believe our Conservative colleagues on the Procedure and House Affairs Committee, which tabled a report on these issues in December 2022, set out the right approach to Parliament Hill security in their dissenting opinions, including an encouragement of policing and security partners to collaborate on the preparation of a consensus plan that can be sustained by stakeholders and other interested parties.[56]  We urge favourable consideration for their views.

Justin Trudeau simply failed Canadians

In winter 2022, Justin Trudeau had the chance to calm things down.  Instead, he took every opportunity to fan the flames of division.  If Mr. Trudeau had not chosen to demonize and name-call Canadians, not to stoke anger and hurt at every turn, this never would have happened.

In sum, Mr. Trudeau and the Liberals were wrong—both in law and in motives—to invoke the Emergencies Act to address a determined, committed protest against a divisive government policy which left the Prime Minister embarrassed.

Put simply, this would never have happened under a Conservative government led by Pierre Poilievre because it would ensure that the Emergencies Act can never be used again to silence political opposition. 

Canadians deserve better.  Conservatives will repair the bonds that Mr. Trudeau has broken.  Common sense Conservatives will protect the Charter rights of Canadians and unite our country and our people for hope and freedom.