The Report of the Public Order Emergency Commission has been tabled in Parliament and released to the public.
https://publicorderemergencycommission.ca/final-report/
First impressions. Its massive. Five volumes in total with well over 2000 pages. The key volume is volume 1, which contains the Executive summary (or Overview) of the report and the consolidated list of recommendations—56 in total.
For readers wanting to dive deeper, volumes two and three contain detailed analysis of the evidence heard by the Commission over weeks of testimony (76 witnesses and 50 experts) and through the production of 28,000 documents, 9,000 of which were read into the record as evidence. Volume 4 (on Processes) will likely be read only by a small number of lawyers. Volume 5 collects the policy research papers that were produced and previously posted on the Commission website. This includes my own paper on the role of Intelligence in public order emergencies.
Commissioner Rouleau delivered a statement before the report was released.
https://publicorderemergencycommission.ca
It signalled one major surprise—his decision to opine on the lawfulness of the government’s decision to invoke the Emergencies Act. His reasoning struck me as odd. Neither Parliament, in the Emergencies Act statute passed in 1988, or the Government, in its directions to the Commission, directed the Commissioner to pronounce on the lawfulness of invocation of the Act—in essence to say whether the "high” legal thresholds in the Act (a national emergency that posed a threat to the security of Canada) were met. Commissioner Rouleau decided to go ahead anyway, arguing that his statutory mandate to examine the “circumstances that led to the declaration being issued…” “inevitably,” as he put it, required him to consider whether the Government’s actions met the legal tests in the Act.
I think that’s a stretch. The government will be pleased that he found that the Cabinet had reasonable grounds to believe that it was facing a defined public order emergency where it invoked the Act on February 14. Civil liberties groups and some Conservatives (here’s looking at you, Glen Motz) will not be happy. But the Federal Court will ultimately have its say on these matters when it rules on the lawsuits from civil liberties groups that are before it. Commissioner Rouleau understands that his findings will not be binding on the Federal Court, but they will still weigh.
I must confess this is one aspect of the report where my predictions went astray.
And there’s more. I also thought/hoped that the Commission would take seriously the opportunity its Cabinet directive to recommend “areas for further study or review.” It didn't. Its only two relevant recommendations are that all levels of government “should continue to study the impact of social media…” and that the federal government “should continue with its study of cryptocurrencies.” Ho-hum.
But what’s in the report, you ask.
That will take a proper reading of three volumes. I also don’t want to scoop my first analysis, promised to the Globe and Mail. I also promise to say whether I think the report has the makings of a historical bestseller (to at least volume 1). Will it rival the report of the Gouzenko Royal Commission?
But I hope you will bear with me as the commentary continues.
I am not at all surprised. Indeed, as I think I may have commented here: the statute can be triggered when Cabinet has "reasonable cause to believe, something", which is similar to the standard which police officers have to follow when exercising many of their duties. And one can have reasonable cause to believe something, even though it may turn out later, and in the fulness of time, and with the benefit of evidence you turn out to be wrong. It is far different and more lenient than the criminal standard of "proving" something beyond a reasonable doubt; and it is, in fact the kind of standard - "reasonableness", not "correctness" that the Courts routinely apply to the decisions of Ministers and statutory tribunals of one kind or another. So I am not at all surprised that the found that there was a reasonable basis for government action.
More interesting, to me, when I have a chance to plough through it, is the reason for police INACTION, which is an increasingly common feature of the legal and political landscape, where group illegality had become a tactic, and police are disinclined to enforce the law - or Court injunctions for that matter. Because the frustration of Ottawa citizens was precisely that, as it was with the native blockade, for weeks, and at huge economic cost, in 202; and the events in Caledonia.
I am wondering if the Ford government abdication of responsibility or even problem solving was a factor in supporting the activation of the emergency act. In other words, if the ON government were actively involved in the policing response, would the Trudeau government have thought the act was necessary?