According to the Emergencies Act legislation (1988), any invocation automatically triggers a retrospective public inquiry headed by a judge into the circumstances that led to the use of the Act by the federal government and the measures that were taken to deal with a declared emergency.
The Public Order Emergency Commission (POEC), headed by Justice Paul. S. Rouleau, was convened in April 2022, in the aftermath of the use of the Emergencies Act to respond to the Freedom convoy protests and blockades in early 2022. It held public hearings in the Fall of 2022 and produced a report tabled in Parliament on February 17, 2023, meeting its very tight one-year deadline.
The report contained 56 recommendations, along with a request that the Government respond to the recommendations within one year, indicating which recommendations they planned to adopt, and which reject, complete with rationales.
The Minister of Public Safety, Dominic LeBlanc, promised to meet that deadline by delivering the Government’s response by the end of February 2024. Didn’t quite manage it, but we now have the Government’s response. Issued on March 6.[1]
In many respects, the response takes the form of ‘stay tuned.’ If that sounds, to hockey fans, like a political form of ‘ragging the puck,’ in truth there are some good reasons why concrete and immediately implementable responses to the Rouleau Commission’s recommendations are a way off.
Some of these reasons are embedded in the nature of the recommendations; some in circumstances.
To understand this, we need to distinguish the major baskets of proposals contained in the Commission report. One big basket concerns policing reforms (27 recommendations). A second concerns recommendations for overhauling the Emergencies Act itself (22 recommendations).
On recommendations for policing reforms, the federal government rightly notes that these are not within the sole jurisdiction of the federal government. That most such recommendations will require on-going consultations with other orders of government—provincial, territorial , municipal, and indigenous governance. Some of Justice Rouleau’s recommendations were actually directed at the Ontario Government –to which the federal government’s tart response was simply that “The Government of Canada will not offer a response to recommendations directed to Ontario.” There are others focused on Ottawa and the National Capital region, a complex mosaic of jurisdiction about which no short-term solution is yet in sight. Many of the policing recommendations are also affected by an aspirational soft focus. One example may suffice. Recommendation #9 states that all governments and their police services should work cooperatively to create national standards on how major events are addressed. The federal government’s response is a yes, with a few examples of existing cooperation. No goal posts are moved. There is an apple pie recommendation about the importance of public communications by police bodies. Response—yes.
And so forth. It is hard to see that there is any recipe here for major reforms to how police handle public order emergencies.
The other big basket is recommendations on changes to the Emergencies Act. The most important recommendation from Justice Rouleau is the headliner at #31--that there be a change to the way that threats to the security of Canada are defined and that the Emergencies Act should not incorporate by reference the CSIS Act definition, which was done back in 1988 largely as a matter of convenience. In other words, we need a new definition in the act of security threats, and probably a new definition of the other major threshold to invoke the act, the concept of a national emergency. Simple? No. And consider also that the Act may need to be modernised to reflect concerns about critical infrastructure protection and the economic security of Canada and Canadians, all the while upholding democratic rights, including the right to protest.
In response, the Minister of Public Safety has clearly indicated that the government is not yet ready to propose changes to the legislation, largely because of ongoing litigation over whether the government’s use of the Act in 2022 was warranted. Justice Rouleau adopted the view that the use of the Act was reasonable in the circumstances; in response to a law suit brought by civil liberties organizations, spear-headed by the Canadian Civil Liberties Association, Federal Court Justice Richard Mosley came down on the other side of the coin, arguing that the use of the Emergencies Act was not appropriate in the circumstances and that some civil liberties were infringed. The Mosley decision is now being appealed.
The appeal will take time to wind its way through the courts and I think it is fair to say that major changes to the Emergencies Act will be on hold until then. The Government is also right to point out that any proposed changes to the EA will require significant consultations with other levels of government, stakeholders, civil society, experts, private sector operators of critical infrastructure, and more. It will be a massive undertaking, which has not yet begun. As the Minister said at a press conference—“its complicated.” [2]
There are some recommendations that the Government will clearly not condone, especially one (#43) that a future commission of inquiry into the use of the Emergencies Act have full access to all Cabinet confidences. The Government response—(the longest by far) there must be a “public interest balancing analysis” and this must be left to the Government of the day.
Is the lack of fast action on the Emergencies Act concerning? If it demonstrates lack of serious intent, then yes. But I don’t think that is a fair judgement, at this point in time.
The thing to keep in mind is that fast amendments to the Emergencies Act might turn out to be bad amendments, rendering the EA either too easy to use, or impossible to use if the necessary conditions arose in future. No one should want either of these outcomes.
This one will take time to get right, so that the Emergencies Act can be put back on its very high shelf, but still remain relevant.
The federal government has ticked the boxes on policing reforms and offered an expanded and indeterminate time frame for changes to the Emergencies Act.
There was one minor basket in the Rouleau Commission recommendations—it consisted of two recommendations related to intelligence. This was not the Commission’s finest hour and its general recommendations were easy for the Government to respond to/bat back. One recommendation (#28) called on the government to examine how it is organised to use open source intelligence, especially from social media. Government response—there is an “internal review” underway, etc. An internal review probably won’t get you very far when the capabilities for exploitation of open source intelligence are largely developed in the private sector and there are few pathways to explore collaboration between government and the private sector on intelligence collection.
The other recommendation (#29) that there should be a review of the coordination of collection and analytical activities within the security and intelligence community, was met with a tangential, change-the-channel, reference to (narrowly focused) consultations on bits and pieces of national security legislation, consultations ostensibly devoted to dealing with foreign interference threats. These consultations don’t constitute a review into coordination of intelligence and assessment.
Yes, Minister.
But the Rouleau commission failed to press on issues of intelligence, or even contemplate the notion that the Emergencies Act invocation was based on intelligence failures. And so this is what you get. An opportunity missed.
[1] Government of Canada responds to the Public Order Emergency Commission recommendations, March 6, 2024, https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-pblc-rdr-mrgncy-rcmmndtns/index-en.aspx
[2] Catherine Tunney, CBC News, March 6, 2024, “Ottawa says it needs more time before updating controversial Emergencies Act,” https://www.cbc.ca/news/politics/emergencies-act-recommendations-1.7134670
Informative and balanced views which are totally appreciated in this age of well defended camps. The Policing issue while complex and in (mainly) provincial jurisdiction could benefit from some leadership in government and elsewhere in the NCR. To leave what occurred in the past with a simple Yes answer is insufficient
Policing is a provincial responsibility. The Commission can proffer all the recommendations it wants, but there is no way to square that circle. Responding to a major event requires time (as we saw) with respect to organization, and determining who is in charge. The answer would be for the Feds to hire more RCMP and create a detachment stationed in Ottawa specifically organized and equipped for protests. However, that would be very expensive, and the officers would spend most of their time training and preparing for the next major event, which might be months or years away.