John Ivison: The Emergencies Act investigation is designed to find exactly what liberals want

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Liberals have heeded the old advice that governments should never initiate public investigations unless they know in advance what the results will be.

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In the case of the investigation into the enactment of the Emergencies Act in February, the government directed Ontario Court of Appeals Judge Paul Rouleau to focus on the actions of the Freedom Convoy protesters, rather than to hold the government accountable. The judge’s schedule is hectic: he has to appear before next February. As such, he is likely to be so hounded by investigating social media misinformation and cryptocurrency crowdsourcing that he will be in for a big surprise if he finds time to question the government’s role in all of this.

Liberal efforts to control the scope of the investigation have led to an unholy alliance of the opposition, including civil liberties groups and opposition parties.

“The requirement to call for an investigation was included in the Emergencies Act to ensure robust scrutiny of the government’s use of emergency powers. The broader context is important, but the government’s attempts to divert attention from its own actions are concerning,” said Abby Deshman, director of the Canadian Civil Liberties Association’s criminal justice program.

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The question of whether the Trudeau government’s unprecedented use of the Emergencies Act reached the legal threshold, i.e. that there was a threat to Canada’s sovereignty and security that could not be addressed by existing laws, was not addressed. mentioned in the order in advice. leading the query.

In Tuesday’s question period, Conservative MP Michael Chong said that to answer the question of whether the government has reached the legal threshold, the judge needs access to cabinet documents. “Former Prime Minister Harper waived cabinet confidences in the case of retired Vice Admiral Mark Norman and in the case of Senator Mike Duffy. Will the government do the same with public research? he asked him.

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The Minister of Public Security, Marco Mendicino, said that the government is prepared to “shed light” on the facts that lead to the proclamation of the law. He said the order in council makes it clear that the judge has the independent power to compel witnesses and documents, including classified information.

But if you believe that, I have some inflation-proof Bitcoin to sell you. The government knows what the investigation will find because it has rigged the system.

Justin Trudeau said Judge Rouleau will investigate the circumstances that led to the Emergencies Act being invoked and make recommendations to “prevent These events happen again” (italics mine). For the prime minister, it’s all about context. The judge has marching orders to observe the evolution of the convoy, including its leadership and its participants; examine the impact of domestic and foreign funding; analyze the role of misinformation and disinformation, including the use of social networks; assess the economic impact; and look at police efforts.

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If Judge Rouleau finds a minute to delve into the sensitive issue of government accountability, he will likely find, as ethics commissioner Mario Dion did in the SNC-Lavalin investigation, that the cabinet documents are out of the question. The decision as to what is disclosed is the decision of the Clerk of the Privy Council, Janice Charette, in accordance with Section 39 of the Canada Evidence Act. She and she has already ruled in an ongoing court case over the invocation of the Emergencies Act that the Incident Response Group’s cabinet committee minutes and Mendicino cabinet submissions should be omitted from the government’s response.

The Canadian Constitutional Foundation (CCF) is seeking a judicial review of the government’s decision in Federal Court, but has been hampered in accessing what its lawyer calls “the most relevant evidence and explanations”.

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According to Mendicino’s own account, which was presented in Parliament, the decision to invoke the law was made after “robust discussions” by the Incident Response Group at meetings on February 10, 12 and 13 (the law was invoked on February 14). As the CCF submission makes clear, without that information, the record does not say whether the cabinet had reasonable grounds to believe that the blockade could not be addressed under any other law.

Sujit Choudhry, an attorney for the CCF, said she is now seeking that information only as an attorney to protect her confidentiality, with a hearing in late May.

“If you don’t share that evidence, you’re really saying ‘just trust us.’ But that is not how we make laws in this country,” Choudhry said.

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It would be nice if he was right. But after too many years of watching how governments work, my heart is covered with the snows of pessimism and the ice of cynicism.

The available evidence suggests that the government overstepped the bounds of the Emergencies Law. It shows that police cleared up protests in Coutts, Alta., and Windsor, Ont., without resorting to the provisions of the Emergencies Act. It records that Emergency Preparedness Minister Bill Blair said publicly that the police had all the tools they needed the week before the law was invoked. It reveals that Mendicino referred to the protesters as “driven by an ideology to overthrow the government” without presenting any evidence.

Even if it were true, as the Canadian Civil Liberties Association says in its ongoing lawsuit against the federal government, the presence of a small number of dangerous people in a specific place, while worrying, would not be enough to justify the proclamation of an emergency. national. “An emergency proclamation cannot be based on nebulous and tense claims about an unspecified danger,” it says in its court filing.

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The Emergencies Law was designed as a measure of last resort, so it was never used before February 14. Tommy Douglas, the founder of the NDP, referred to the use of his previous legislation, the War Measures Act, by the current prime minister. father as a “hammer used to crack a peanut”.

Unless the government publishes startling new information, the only conclusion that can be drawn is that the response was disproportionate to the threat: “unnecessary, unjustifiable and unconstitutional,” in the words of its opponents.

But it seems unlikely that the public inquiry will come to the same conclusion.

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