The Globe gets it wrong (shock, horror)
Viewing the Emergencies Act through the wrong end of the telescope
The Globe and Mail published a long editorial on December 10, arguing that the question of whether the Government met the legal thresholds in invoking the Emergencies Act is the key outstanding issue after weeks of testimony and 9,000 document releases at the Public Order Emergency Commission.
https://www.theglobeandmail.com/opinion/editorials/article-ottawa-says-it-has-a-legal-opinion-justifying-the-use-of-the/
Sorry, this is the wrong end of the telescope. The legal thresholds piece is not the main issue of importance to Canadians. The Globe’s call for a release of the legal advice provided by the Attorney General to the government is, at this stage, largely beside the point. The key issue is how the events of the Freedom Convoy came to be seen as a national security crisis by the government.
OK, I could have written a short letter to the editor, and maybe it would have been published. But really, this is more fun. And, I hope, a better place to make the points that need to be made. (Alas, poor reader, at some length).
First, let me tackle the things that the Globe got wrong (or to be more fair, over-simplified) about thresholds in the Emergencies Act. Then, what it got wrong (over-simplified) about CSIS and the views of its Director. Finally, teaser, how we may already know enough about the legal advice without actually seeing it. Seeing it would be icing on the cake, sure. But we aren’t going to see it, as no government is going to set a future precedent by blowing a gaping hole in solicitor-client privilege.
The Emergencies Act, sorry Globe editorial writer, does not have two simple thresholds. Close, but not close enough, as they say with hand grenades. The EA actually has many threshold components and they are best understood as nested in a deliberate set of checks and balances. So, what are the specific thresholds and how are they embedded in a series of checks and balances?
https://laws-lois.justice.gc.ca/PDF/E-4.5.pdf
The first threshold, the definition of a “national emergency” has multiple parts (see s3 of the Act). A national emergency is defined as an “urgent and critical situation of a temporary nature.” It further has to be characterized as creating a situation which either “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it,” or “seriously threatens the ability of the Government to preserve the sovereignty, security and territorial integrity of Canada.” Which aspect of the definition the Government relied on is not entirely clear, as they effectively drew on parts of both.
Then there is a further qualifier. A national emergency can only be found to exist if the situation “cannot be effectively dealt with under any other law of Canada.” The key word here is effectively. Note the latitude this leaves for judgement calls by the Government in response to the facts on the ground.
A second set of thresholds pertains specifically to a Public Order Emergency, which is one distinct part of the EA (there are four parts). The definition of a public order emergency relies on the definition of a national emergency, as explained above, but repeats a concept of “threats to the security of Canada,” and draws on the definition of such threats provided in section 2 of the CSIS Act. (See s16 of the EA) The CSIS Act predates the EA by four years (1984 for the CSIS Act; 1988 for the EA). Use of the CSIS Act definition was a convenience at the time. Its application in the context of the February 2022 invocation of the Emergencies Act has been widely misunderstood.
Section 2 of the CSIS Act exists to define the operational scope of CSIS as an intelligence service. (See https://laws-lois.justice.gc.ca/PDF/C-23.pdf) It has four parts, paraphrased as: a) threats derived from espionage; b) foreign interference; c) serious violence to persons or property driven by a political, ideological or religious motive and d) subversion. For CSIS to engage in intelligence collection, particularly using more intrusive measures (which will often require a Federal court approved warrant), it has to have reasonable grounds to suspect (a lower legal threshold than “believe”) that it has identified one or more such threats emanating from target entities.
Porting s2 of the CSIS Act into the Emergencies Act provided a definitional standard of threats to the security of Canada, but the EA does not depend on such a threat meeting the CSIS Act objective of triggering intrusive intelligence collection. The definition in the Emergencies Act has a wider meaning in the context of a public order emergency. Yes, the invocation of the Emergencies Act to meet a Public Order Emergency has to meet the defined threat threshold. But it does not have to mean that CSIS found the threat relevant to triggering its intrusive investigative powers. Same definition, two very different purposes. This is, I think, a lesson we must take away from testimony at the Commission. There is confusion there, unforeseen by the drafters back in 1988, that will need to be sorted out in any modernization of the Emergencies Act. Hopefully the Public Order Emergency Commission will propose some useful remedies.
So, next, let’s look at what the CSIS Director, David Vigneault, actually said. Again, the Globe editorial overly simplifies. There are three versions of Mr. Vigneault’s testimony. All converge on the same point. One version is contained in a public summary of an in camera hearing before the Commissioner.
https://publicorderemergencycommission.ca/files/exhibits/WTS.00000079.pdf?t=1670731056
The summary states that Mr. Vigneault was asked by the PM following a meeting on February 13 of the Cabinet Incident Response Group to “provide an opinion as to whether he supported the invocation of the Emergencies Act.” According to the summary, “Mr. Vigneault explained that based on both his understanding that the Emergencies Act definition of threat to the security of Canada was broader than the CSIS Act, as well as based on his opinion of everything he had seen to that point, he advised the Prime Minister of his belief that it was indeed required to invoke the Act.”
This is a little different than the Globe’s version that “Mr. Vigneault also testified that he advised Justin Trudeau to invoke the emergency measures, after receiving a legal interpretation from the Justice Department that the Emergencies Act uses a broader definition of threat than the CSIS Act.” The Globe is, effectively, putting words in the CSIS director’s mouth to suggest that it was solely the act of receiving a legal opinion that caused Mr. Vigneault to advise the PM in the way he did. Not good journalism.
Let’s turn to another form of testimony, this time contained in the CSIS witness interview summary.
https://publicorderemergencycommission.ca/files/exhibits/WTS.00000060.pdf?t=1670731269
Here is what is recorded in this document:
“Mr. Vigneault explained that, although section 16 of the EA references the definition of a threat to the national security of Canada set out in section [2] of the CSIS Act, the two statutes are concerned with distinct issues. The definition of national security is multi-layered and reaches across government agencies…He further explained that the EA cannot be read in a manner that gives CSIS the exclusive authority to determine whether there exists a public order emergency, as this is the responsibility of the federal government.”
Finally we can turn to the transcript of Mr. Vigneault’s public testimony on Monday, November 21.
https://publicorderemergencycommission.ca/files/documents/Transcripts/POEC-Public-Hearings-Volume-27-November-21-2022.pdf
The transcript (see, esp. pp. 51-59) clarifies how Mr. Vigneault came to understand the difference between the CSIS Act and the EA. In his examination- in-chief, Mr. Vigneault stated that he wasn’t familiar with the Emergencies Act and the fact that it utilized the CSIS Act as a threshold, until invocation of the EA began to be discussed as a possibility at the Incident Response Group meetings, starting on February 10. He stated “I needed to understand for myself..what was the implications of this.” He said that he was “reassured” that “in the context of the Emergencies Act there was to be a separate interpretation based on the confines of that Act.” CSIS has in-house legal counsel provided for it by the Department of Justice. One has to assume that it was through its in-house legal counsel that the Director was provided with an interpretation of the EA for the purposes of his role in advising Cabinet during the crisis decision-making undertaken between February 10 and 13.. This interpretation was likely distinct from the broader legal advice provided by the Attorney General to Cabinet regarding the invocation of the Emergencies Act.
Mr. Vigneault also confirmed the statements that had been summarized in the CSIS interview and in the public version of the in camera hearing.
So how does the Globe get this wrong exactly? Its nuance. The CSIS Director did not advise the PM to invoke the Emergencies Act simply because he received a legal interpretation that the Emergencies Act uses a broader definition of threat than the CSIS Act. He did receive a legal opinion about the distinction between the two Acts, and its likely that that opinion was distinct from the Attorney General’s legal opinion provided to the Cabinet. He also understood that the EA did not make CSIS the decision-maker, the government was the decision-maker, and that he was free to offer his advice as a senior intelligence official, not just as CSIS Director, on the basis of “everything he has seen to that point.”
The CSIS Director was wearing two hats. The Globe sees an “inherent contradiction.” I don’t. It may have been challenging for Mr. Vigneault, but it is important to recall that prior to his appointment as CSIS Director in 2017, he had served for a period of five years as Assistant Secretary to the Cabinet for security and intelligence. That was his second hat.
The Globe editorial’s point is that “more fundamentally the federal government needs to demonstrate to Canadians the legitimacy of its actions.” To add a touch of hyperbole, it goes on to state, “lawlessness cannot be combatted with more lawlessness.”
The Globe seems to understand legitimacy as residing in an unseen legal brief. That is just wrong. Legitimacy resides in the public explanation for its actions provided by the Government. The government did put up all its key Cabinet ministers to testify under oath, culminating with the Prime Minister. The Minister of Justice and Attorney General, in his testimony, essentially confirmed the statements of the CSIS director—that invocation of the Emergencies Act involves a wider definition of threats to the security of Canada, includes a wide circle of advice, and is a political decision made by the Governor in Council (e.g. the Cabinet). Other Ministers had variations on the rationales that drove them to a consensus decision on invoking the EA. For the Minister of Public Safety it was the arrests of an armed faction at Coutts, Alberta and fear that further violence was in the offing; for the Minister of Finance and Deputy Prime Minister it was the damage to Canada’s economic security.
That a wider interpretation of the CSIS Act was in play should not be surprising, nor should it be considered illegitimate. This takes us to the ways in which the legal thresholds in the Emergencies Act are embedded in a whole series of checks and balances in the legislation. The Commission’s work is one—a form of independent, public accountability. A second was meant to be the work of a special Parliamentary committee, designed to monitor the use of the Act. Because of the brevity of the invocation of the EA, the Parliamentary committee became a de facto review body. It continues to meet, covering much of the same ground as the Commission, but with high levels of political partisanship thrown in. Whether it will beat the Commission report to the punch reminds to be seen. A third element to the checks and balances is the fact that all actions taken during the invocation of the EA have to be compliant with the Charter. This has generally been under-examined during the Commission’s hearings.
But I am leaving one check to last, because it circles back to the teaser I mentioned in the opening—namely that we may already have the gist of the Government’s legal opinion. In invoking the Emergencies Act, the government is required to obtain the consent of both Houses of Parliament. It has to put a motion before the House, explaining its reasons. This is known as the section 58(1) explanation under the Emergencies Act. If Parliamentary consent is not obtained, the Emergencies Act is immediately nullified. The required motion was presented on February 17, 2022. The Liberals and NDP voted in favour in the House. The Senate vote was not finalized before the EA was revoked.
The important point is that the s58 explanation carries the seeds of the legal argument, as it was surely meant to do. It includes direct references to the CSIS Act threshold as well as a “wider” interpretation of the meaning of threats to the security of Canada.
https://www.justice.gc.ca/eng/csj-sjc/section58.html
In the s58 explanation, five reasons were presented to Parliament to justify the finding of a public order emergency. Three of the five reasons broaden the security threat lens beyond the language of the CSIS Act—threats to economic security resulting from the border blockades; adverse effects on Canada’s relationships with its trading partners; the breakdown in supply chains. Whether it was right to broaden the understanding of threats to the security of Canada in this way is open to debate, but for the government it clearly represented its assessment of key threats on the ground.
The important thing to note is that in widening its definition of threats under the EA, the government did not cavalierly discard the CSIS Act threshold. It incorporated it. Two of the five reasons directly address the CSIS Act threshold, especially s2c) of the CSIS Act. The reasons are worth quoting in their entirety. The CSIS Act language is emphasised in bold:
i) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada.”
v) “the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians [arguably a paraphrase of s2c of the CSIS Act]
As Paul Wells noted in his fine (and highly recommended) substack newsletter, referring to the Prime Minister’s testimony before the Commission
“If his testimony changes five minds in this country about whether the Emergency Act was necessary than I’m the Rockettes.”
The same can be said about the debate over the legal thresholds in the Act. In the end, it need not be about changing peoples’ minds, only ensuring that they have access to the same facts.
The Globe’s seizing of the wrong end of the telescope did not serve this objective.
I suspect the answer is political will. Ontario govt saw the Ottawa occupation as a federal problem. Their approach to Windsor and the Ambassador bridge was more direct.
There is far too much black and white thinking about this problem, by people who do not understand the way in which legislative language is used, and the way in which legal authority is exercised and then later reviewed. And it is not that hard.
The trigger for invoking this largely facilitative legislation, is that the Cabinet must have “reasonable grounds to believe” that there is an “emergency”, as that term is rather ambiguously described in the statute.
I say ambiguously because not only is the language itself elastic, but it also envisages that the decision maker (the Cabinet) will have to draw inferences and or make predictions about what might happen or is likely to happen (which, by the way, are two different levels of probability).
It is an exercise in Cabinet judgement and prediction, based upon what will inevitably be imperfectly understood and dynamic events, reported to them by others: what they are told, including opinions and predictions and worries.
Moreover, the law is certainly elastic enough to encompass the precautionary principle, which is a part of lots of public protection legislation (like health & safety laws), and which enjoins the decision maker to err on the side of caution and to take steps to avoid potential (i.e. not certain, but only foreseeable) harm.
From that perspective the test is simple: the Cabinet must have reasonable grounds to believe that the conditions described in the statute exist. It need not be satisfied of that beyond a reasonable doubt, nor make any finding “more probably than not” (the criminal and civil burdens of proof.) It just needs a reasonable basis for action,
Thus, in my view, Cabinet may invoke the legislation, even if, upon later investigation, or upon further reflection, it turns out to have been wrong.
Furthermore, and along the way, and prior to decision, the statute envisages levels of political examination, consultation, input and discussion by various political bodies and there is a built-in mechanism for later re-evaluation; so the structure of the law itself recognizes the uncertainty of the exercise and the possibility of error or over-reach. That is why there is a mandatory review and quest for “lessons learned”. It is a political exercise subject to quasi-judicial review.
Finally, the legislation is largely facilitative and precautionary. It empowers other bodies – primarily provincial ones – to do things. It does not command any particular action. Which, to repeat, underlines its prophylactic purpose: to prevent harm. Just like health and safety legislation.
There is nothing odd about any of this. The law is full of such evidentiary thresholds for taking actions that affect rights of others; and they are defined in different ways, requiring different levels of evidentiary justification.
Take criminal law. In order to be arrest X, a police officer must have reasonable ground to believe that X committed a crime. The cop doesn’t have to “prove it” beyond a reasonable doubt. He just has to have a reasonable basis for action.
The proof of the crime comes later; or not; and the officer will have acted properly, even if, for some reason, the criminal charge is later dismissed, because what was suspected, or reasonably appeared to be the case, has not been “proved” beyond a reasonable doubt. While, by the same token a civil action involving the same incident can succeed because the civil standard of proof is lower. (Remember OJ?)
This kind of thing is very common in the legal world, where there are alternative reasonable readings of the evidence or of a legal instrument, or how it applies in a particular set of facts. And where the facts are murky and subject to interpretation.
Moreover, it is not unusual for a reviewing court to let the decision maker’s determination stand, even if the Judge doesn’t agree with it, because a decision can be reasonable, even if it seems wrong in someone else’s eyes. Thus, for example, a jury’s verdict will be left to stand, even if it seems wonky, so long as it was a reasonable possibility and not demonstrably perverse.
I suspect that in the instant case, the Cabinet decision will meet the test of reasonableness. Particularly where, as here, the challenger’s claim is itself so speculative: namely that the problem in Ottawa would have resolved itself, within a reasonable period of time, despite the evident police paralysis up to that point.
The invocation of the Act and the challenge are both based upon speculation and imperfect evidence. Compare what the Judge was told and the manner in which he heard it, to the way in which the Cabinet was obliged to decide things. And there is the injection of "national security" into what is mostly group criminality and public nuisance - damaging to citizens and perhaps institutions, but not to national security as conceived in CSIS legislation looking at foreign influence rather than, say, the home-grown mafia or a motorcycle gang, where something like RICO is more appropriate.
My guess is that the Judge will conclude that the Cabinet decision was proper and reasonable and even effective in facilitating the resolution of the problem in Ottawa, even though, upon reflecting the strict terms of the statute were not met – in part because the law needs further consideration, in light of lessons learned.
The one that interests me is this notion that the police can enforce the law - including a Court injunction – OR NOT, at their sole discretion, and that no one (no judge and no politician) can tell them how or when to do it.
That is to say, that the police are a law unto themselves. Because that is an interesting proposition, in a context where the police may be more concerned that a protest be peaceful, than that it be lawful; and where there is no effective legal remedy for citizens who are adversely affected by the illegal behaviour.