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Joanna Baron: As the Emergencies Act decision goes to Federal Court, the government is arguing against its own guardrails

Commentary

Six weeks ago, the Public Order Emergency Commission report concluded, with some quixotic language, that the Trudeau government was justified in invoking the Emergencies Act on Feb. 14, 2022.

That report was deemed by government lawyers to amount, for legal purposes, only to a persuasive “expression of opinion” without legally binding consequences in a Federal Court hearing held this past week in Ottawa.

Held in an impressive courtroom in the Supreme Court of Canada building metres away from last winter’s boisterous Freedom Convoy demonstrations, the hearings carried a sense of sober gravitas, of picking up the debris after the arena had been emptied out and the players long gone home.

The applicants, a group of civil liberties organizations and individuals (including the Canadian Constitution Foundation, where I am the executive director), argued for a declaration that the government improperly invoked the Emergencies Act. The Act operates like a de facto constitutional amendment, vesting cabinet with draconian powers, including the power to make new criminal laws without parliamentary debate or advance notice. It carries strict statutory conditions for its invocation—that a threat to national security exists which cannot be dealt with under any other law in Canada. Those conditions, the applicants argued, were not met.

The thrust of the government lawyers’ legal argument defending the use of the Act was twofold. First, they called out the applicants for playing Monday-morning quarterback, engaging in revisionist history, and dissecting the fine threads of what was a fast-moving and volatile situation. The attorney general emphasized the grave concern, in early February 2022, about spillover violence, citing the weapons retrieved in Coutts, AB. They were concerned that if Coutts didn’t end peacefully, it might create a chain reaction across the country. The Convoy had metastasized into a national political movement that completely overwhelmed police.

The correct standard for judicially reviewing the government’s decision to invoke the Act, the government claimed, ought to be highly deferential. The situation perhaps, in hindsight, looked like it was under control by the time the Act was invoked on February 14, 2022—but in reality, the entire country looked like a tinderbox on the verge of exploding.

Boldly, the government also argued that cabinet’s authority was essentially unlimited as an apex decisionmaker and unconstrained by the language of the Emergencies Act itself, such that an assertion that it believed itself to be acting reasonably ought to suffice. Cabinet and its governor-in-council, the attorney general argued, was “quintessentially executive in nature, unconstrained” and its decisions should be considered “very difficult to set aside.” Given that Canada’s parliamentary democracy is already lacking in meaningful checks on executive power, the government’s position would seemingly emaciate any basis for meaningful judicial review.

These assertions carried an alarming whiff of deja-vu which recalls the original impetus for enacting the Emergencies Act in 1988 in the first place. The specific parliamentary intent evidenced in the language of the Emergencies Act itself was to render it less liable to abuse. In Parliament, the Emergencies Act was enacted to replace the War Measures Act specifically to move away from the latter’s loose requirement that cabinet need only be “of the opinion” that an emergency existed, in favour of a more stringent requirement that it believed “on reasonable grounds” that a public order emergency existed. This requirement was referred to in connection with an explicit reference to the importance of meaningful judicial review. Minister Beatty said at the time that the requirement was meant “to give someone who wants to contest the government’s declaration […] the ability to take us to court, if they believe that it has been frivolously done,” and that “the government could be required to explain to the courts the reasoning by which it concluded that a declaration of national emergency was the appropriate action.”

Justice Mosley lamented the government’s dragged-out evidentiary disclosure, calling the process “like peeling an onion.” From the commencement of litigation in spring 2022, the government asserted near-blanket privilege over the relevant Incident Response Group proceedings. They waived privilege in July 2022 over broad swaths of intra-governmental communications leading up to the invocation, only to assert solicitor-client privilege over a legal opinion laying out their justification for invoking the Act, the nub of the issue.

Secrecy aside, it can be surmised at this point that in the government’s view, despite the adoption of the CSIS Act’s definition of “threats to the security of Canada” in the Emergency Act’s threshold for invocation, CSIS’s conclusion that such a threat didn’t exist was immaterial to Cabinet’s decision to invoke the Act.

Which leads to a few pesky questions about what inputs, exactly, did form the basis for Cabinet’s decision. We know that the day the Act was invoked, national security advisor Jody Thomas ordered that cabinet produce its own separate threat assessment. A second memo, from Clerk of the Privy Council Janice Charrette to the prime minister giving advice about invoking the Act also indicated that a separately conducted threat assessment was to be conducted. That assessment never materialized. According to the attorney general, in the fog of war this was understandable and not fatal to the reasonableness of cabinet’s decision. The cabinet, apex-decision maker, may be presumed to be acting reasonably, and it would seem, to be omniscient.

That’s the most difficult question for Justice Mosley to decide. In deploying the Emergencies Act, may cabinet not just depart from the threat assessments of CSIS (as well as on-the-ground law enforcement, who also concluded no national security threat existed), but also do so in an evidentiary vacuum? “Is there a particular magic to the alternative threat assessment?” the judge queried of counsel at the hearing. The position of civil liberties groups is that, in light of the Act’s requirements, the government cannot have its cake and eat it too: on the one hand, dismiss CSIS and the police’s conclusions that a threat didn’t exist and on the other hand be entitled to deference and a lack of a demonstrable basis to conclude otherwise.

Justice Mosley has a background in national security, and referred several times during the hearing to his personal experience reviewing thousands of CSIS threat assessments. It’s hard to know whether this will militate in the government’s favour or not. He noted the novelty of the second major issue before him: the relationship between the CSIS Act and Emergencies Act. At the time the Emergencies Act received assent, the CSIS Act itself had also been recently adopted and its statutory requirement of a “threat to the security of Canada” was a low one, meant to merely grant scope for surveillance and further investigation of individuals. In the context of the Emergencies Act, that same standard was deployed to permit freezing of bank accounts and suspension of peaceful assemblies across the entire country. If anything, then, the CSIS Act definition should be more rigorous to satisfy, but the position of the government, accepted by the Rouleau Commission, was far more accommodating.

The government’s claim that cabinet’s authority is essentially unlimited and unconstrained by the language of the Emergencies Act would set a precedent that would allow the government to skirt virtually all statutory guardrails. One hopes Justice Mosley will peel back the layers of this onion with clarity.

Howard Anglin: The Trudeau Foundation deserves to be saved from itself

Commentary

I want to say a good word about the Pierre Elliot Trudeau Foundation. Maybe it’s my previously-confessed contrarianism, maybe it’s a hitherto undiagnosed masochistic streak, but when I see the sort of pile-on that we’ve witnessed over the last few days, my instinct is to try to find some saving grace and salvage something from the wreckage. In this case, it isn’t easy, but I’ll try.

But first the bad (and buckle up, there’s a lot). As Andrew Coyne put it, for much of its existence the Trudeau Foundation “appears to have been run like a cross between a college housepainting service and a Panamanian shell company”—an assessment that does a disservice to both college housepainters and Panamanian accountants. He’s right, and I won’t defend it. I’m not that contrarian or masochistic. 

Nor am I interested in defending the inexplicable greed and gullibility that has been damningly revealed by Bob Fife and Steven Chase in the Globe and Mail. What would possess the foundation’s board to accept donations from a transparent front for the Chinese Communist Party is beyond me, and beyond my sympathy. It’s not like a foundation sitting on a $125 million plus taxpayer endowment needed the money.

So what is left to defend? Two things, I think. 

First, the foundation’s work, which was the target of a drive-by hit from the usually astute Brian Lilley in the Sun earlier this week. Lilley opened by asking “[i]f the Trudeau Foundation ceased to exist, would Canadians notice?” It’s a silly question that typifies an attitude that is unfortunately common in politics: if something doesn’t affect you and your life, it can’t have much value. 

Lilley notes that the Trudeau Foundation was originally set up to create a program similar to the British Rhodes Scholarship program, but “after 21 years” he’s “not sure they can claim success on that front.” I don’t know what he’s basing this judgement on, but it sounds to me like he has too lofty an opinion of Rhodes scholars and too low an opinion of Trudeau scholars. 

I can only speak from experience (which includes meeting quite a few scholars from both programs in Canada and in Oxford), but on balance, the Trudeau scholars stack up well. If a lot of what they have produced is “much of … the same banal material academics produce elsewhere” that says more about the state of academia than the foundation’s selection process. And I can assure you, the work of Rhodes scholars is no more inspiring.

Second, and this may seem like a small thing, I want to praise the decisive action by the foundation’s executive and (most of) its board. When was the last time anyone in Canadian public life took responsibility for anything the way they did, resigning en masse? Faced with similar allegations of interference in their own party, has a single Liberal cabinet minister demurred, let alone departed?

Again, my information is anecdotal, but friends I trust have told me that the now-former president and CEO, Pascale Fournier, was doing an excellent job stewarding the selection and development of the program’s scholars. Like many who resigned, she was not in charge when the board decided to accept the Chinese tea money, and from what has been reported, her team went to grimly comical extremes to try to give it back. 

I’m not saying everyone who resigned is blameless, but as I see it most of the foundation’s past incompetence, including accepting the dodgy donation, can’t be reasonably pinned on the management that resigned. And yet they still resigned. I don’t want to make it out to be a more heroic act than it was, but it was refreshing to see someone step up and show real accountability. So, good for them.

What I don’t understand is why, of all the people to keep on as chairman of the three-member board that remains to keep the foundation’s work going and to prepare it for whatever comes next, they would choose Edward Johnson, who is neck deep in the foundation’s, shall we say, complicated history. Why is one of the men responsible for the foundation’s problem—he is a founding member and was a director when the Foundation accepted the donation—now in charge when his fellow board members, many of whom weren’t, have resigned?

Johnson is an old Trudeau family insider, having served as Pierre’s executive assistant from 1980 to 1984. He is also the senior vice-president and general counsel of Power Corporation, which in 1978 founded the Canada China Business Council to facilitate trade with recently-opened Red China. This may look suspicious, but I assure you it’s not. It’s worse: this is how the Canadian Establishment works when it’s not being suspicious. 

Another of the remaining board members is curious for another reason, but one that points to the same problem. According to his corporate biography, Peter Sahlas is a director by virtue of being “elected by the members representing the Estate of the Late Right Honourable Pierre Elliott Trudeau.” (The other director nominated by the Trudeau estate, who did resign, was the late prime minister’s daughter, Sarah Coyne). 

Both men highlight the Trudeau Foundation’s fundamental flaw, and the clue is in the name. No matter how much good work it did in providing doctoral scholarships, fellowships, and academic mentoring, the foundation could never shake the perception that it was the private plaything of the Trudeau family and their extended family in the Liberal Party because, at least in part, it was. If you want proof, look at the latest 2021-2022 Annual Report, where all three of Trudeau’s living children were still listed as members or directors.

Yes, despite his disavowal of any knowledge of the foundation’s business, the prime minister’s name is still listed right next to his brother Sacha’s as a “succession member” of the foundation. Jesse Armstrong couldn’t script it better. A discrete asterisk informs the reader that “The Rt. Hon. Justin Trudeau has withdrawn from the affairs of the Foundation for the duration of his involvement in federal politics.” Not permanently, mind you, just while he’s occupying the prime minister’s office, with the implication that we are not to worry—he will be back. 

Forget temporarily stepping away from the foundation, Justin Trudeau never should have been involved in the first place. When the foundation was established in 2001 (with taxpayer money, remember), he had no relevant qualifications. This was around the time he was describing himself to the press as “far from a finished product … I haven’t done anything. I haven’t accomplished anything.” And he wasn’t exaggerating. He was a 30-year-old trust fund kid about to drop out of an engineering program. 

Back in 2001, it probably never occurred to anyone that Pierre’s wastrel son would become a serious political player. Sure, he’d attracted the spotlight a year before for his treacly eulogy at his father’s funeral, but the thought that he would follow in his father’s footsteps was still just the misty-eyed fantasy of a few greying Boomers. 

Yet there he is in the very first Annual Report alongside Sacha, the Roman to his Kendall. And what, come to think of it, did their 31-year-old half-sister Sarah bring to the board of directors before she resigned beyond sacred bloodline? You can see why the Chinese Communist Party might have confused the Trudeau Foundation with the Trudeau family. 

The line was further blurred, of course, by the prime minister’s appearance with the same donor at a Liberal Party fundraiser in the same year. (As for the $800,000 that the same source pledged to the University of Montreal law school, Pierre Trudeau’s alma mater, there is Sacha once again, dragged out to lend his surname to the official announcement.)

So what now? You can say that the foundation should give back its endowment and turn off the lights, and I wouldn’t object. But most of our peer countries think it’s worthwhile to have a national graduate scholarship program of this kind, and I agree. And if we are going to have such a program and we already have a body with the infrastructure and experience to deliver it, we might as well use it.

The problem was not the idea but the execution, specifically the structural flaws that were baked into it the foundation from the beginning, which even the best leadership could not have overcome. The board and the executive’s resignation provide an opportunity for a complete re-set. That is, if the remaining board members are prepared to take it, which is why I was so critical of the choice to keep on board members who are by implication tainted with the foundation’s core problems. 

The new chairman has said that they are “launching an independent review of the organization’s acceptance of a donation ‘with a potential connection to the Chinese government’” that will be “conducted by an accounting firm instructed by a law firm, neither of which were previously involved with the Foundation.” That is not good enough. 

The last thing the foundation needs is another Liberal-connected law firm (because they all are) directing another Liberal-connected accounting firm (because they all are) to provide them with a list of cosmetic measures that will allow the family business to carry on as usual. The board should skip the “review” and move straight to the “independent” part with a top-to-bottom reordering of the foundation’s governance. 

Ditch the Trudeau name. Cut all ties with the Trudeau family. Give the tainted money to a charity fighting human rights violations in China. And then step aside so that a new board and new management can take over. Nothing less will honour the recent board and management resignations; nothing less can save the good work the foundation was doing and should continue to do.