Last week, the Trudeau government missed its one-year February 17 deadline to respond to the findings and recommendations of Justice Paul Rouleau’s inquiry into the 2022 invocation of the Emergencies Act.
Rouleau’s final recommendations were for the government to clearly indicate within one year of his report which of his proposed reforms they would accept and what their detailed timeline would be to implement them. The government was also supposed to include clear explanations for any recommendations they rejected.
By ignoring the deadline set by a report that actually supported their decision to invoke the Emergencies Act, the government risks squandering an opportunity to help themselves and prepare Canada for our emergent age of mass protest.
Government inaction on Rouleau’s key recommendations to reform policing and intelligence frameworks—and, critically, the Emergencies Act itself—is starkly contrasted with their immediate decision to appeal Justice Richard Mosley of the Federal Court’s more recent ruling that their use of the Act was illegal.
Silence on the inquiry report that was, on its surface, favourable to the government—while actively fighting the legal decision that seems to go against them—is a baffling move.
But, trawling through the public record of government communications on matters related to the Act over the past two years, it is possible to offer fair and founded interpretations of what the government’s strategy seems to be, and what it reflects.
At present, all interpretations are unflattering to the government—which calls for their clarification.
Most charitably, we can hypothesize that the government has misread the many commonalities within the analyses that lead each judge to contrasting final appraisals of whether the federal government was justified in invoking the Act.
Simply put, Rouleau says the government had just barely met the famous Section 2 standards of the CSIS Act for mobilising the Emergencies Act, accepting the government’s argument that the “Freedom Convoy’s” threats to economic stability constituted a form of “serious violence” for a political purpose.
However, Rouleau concedes that “reasonable and informed people could reach a different conclusion.”
Hardly a ringing endorsement.
In apparent contrast, Mosley echoes Rouleau’s assessment that the Freedom Convoy devolved from a set of legal protests across the country into illegal occupation, but he rejects the government’s argument about economic harms constituting serious violence by the letter of the Section 2 standards. As such, he ruled the government’s actions were illegal and are not saved by the Section 1 safety valves of the Charter.
Mosley concedes, however, that had he “been at (the government’s) tables at that time, I may have agreed that it was necessary to invoke the Act.”
Hardly a damning condemnation.
Reform is crucial
What is key—and can be charitably interpreted as being missed by the government—is that both judges agree on the deficiencies of Canada’s policing and intelligence frameworks, and of the Emergencies Act itself, actively calling for its reform.
In keeping with his mandate, Rouleau goes much further than Mosely to make specific recommendations for reform, but the Federal Court judge is not particularly subtle in his calls for legislative action that echo the commissioner’s.
Rouleau follows the advice of the bulk of security experts who provided evidence at his inquiry in calling for the decoupling of the Emergencies Act and the Section 2 standards of the CSIS Act. This is in keeping with the logic that the thresholds constraining CSIS as a covert and secretive domestic intelligence agency ought to be higher than those constraining elected governments who must answer to both houses of the legislature and directly to the electorate.
Further, while CSIS obtaining warrants to essentially spy on Canadian citizens must always be a strictly legal process, government decisions about acting in times of emergency are both legal and political and thereby require different sets of standards.
Can economic damage that threatens the ability of large groups of citizens to secure their livelihoods constitute a form of “serious violence” for a political purpose? Rouleau says yes because this is not only a technical legal call but also a political one for which the government must answer: how much economic damage and how many people must lose their livelihoods before we cross over from simple labour protest to arrive at emergency is not easily defined by any purely legal formula.
On this, Mosely says that he can also fully understand why the government might require emergency powers to respond to mass forms of economic disruption, but that the Emergencies Act as it is currently written does not include such powers. He goes on to state that, as a judge, it is not his job to create new powers or write legislation, but to ensure that the “court…only apply the law as it finds it.”
Like Rouleau, Mosley goes on to invite the government to take on its responsibility to undertake the necessary legislative reform.
The government’s muddled response
This brings us to today. By failing to respond to Rouleau and charging off in the direction of appealing Mosley’s ruling, the Trudeau government is either inadvertently or willingly avoiding precisely what both judges have called upon them to do: take leadership responsibility for preparing Canada’s policing, intelligence, and emergencies frameworks for a future that is certain to be marked by mass protest. Political, economic, climate and pandemic disruption are only going to accelerate.
By appealing Mosely’s verdict, the government is asking the courts to do what Mosely says he could not, and most Canadians would agree he should not: legislate for them.
And it is here that interpretations of the government’s apparent mishandling of the situation become less charitable.
The first is conceptual blindness (uncharitably, driven by arrogance). In other words, the need to always be right.
Perhaps the government has been stung by the federal court’s unfavourable ruling in a manner similar to the kick to their pride delivered by mass protests that coalesced around the government’s confused and haughty messaging around vaccine mandates and other pandemic measures.
Trudeau had to walk back his assessment of protestors as representing the “fringe minority” of racists, anti-experts, and violent provocateurs when their numbers swelled into the tens of thousands and all security agencies began speaking of “layers of protestors.”
Part of the government’s response can be seen as similar and immediate lashing out against a court ruling that they view as a stinging and inferior rebuke of their own views and logic.
The second concerns the lack of will and available political capital to undertake much in the way of reform in the difficult and fraught policy dimensions of policing, intelligence, federalism, and emergency preparedness. Uncharitably we can call this political cowardice.
Simply stated, the government is polling abysmally coming up on an election year and has little powder to burn on risky policy initiatives that could backfire. As Richard Fadden, former director of CSIS, has put it on numerous occasions, “There ain’t no votes in security and intelligence reform,” even if you get it right.
And if you get it wrong you can be politically obliviated.
Certainly, it is not difficult to imagine the Opposition taking the Trudeau government apart at the joints for trying to “change the laws that they have been judged legally guilty of breaking” in the lead-up to the election.
The third interpretation centres on manipulation, in the sense that delaying action can sometimes be a good tactic to invite and gauge response and calibrate the need to take initiative. Uncharitably, this could be seen as a cynical way to conduct a particularly effective form of free polling.
In other words, the Trudeau government may simply be waiting to see if the public begins jumping up and down to demand action on anything related to the Rouleau Commission and mass protest before they stick their necks out on the policy side of things.
It is important to stress that these unflattering interpretations of the government’s blend of defensive silence on Rouleau with legal aggression on Mosley are not mutually exclusive. Rather, they appear in the current silence as the main features—arrogance, cowardice, and cynicism—of an unflattering portrait of a government beset by cratering public support.
What’s next?
There will be disagreement about the reform road ahead for policing, intelligence, federalism, and the content of the Emergencies Act.
Some will be very wary of any effort to relax the standards constraining the government in invoking it. Others will not want any aspect of economic threat added to the list of things considered to be violence for a political purpose.
But government silence only delays a public debate we cannot avoid on these difficult matters, if we are to be prepared for a generation of polarization and disruption.
All political parties should place their plans for promoting national unity, inclusion, and security preparedness at the centre of their election campaigns to earn a mandate to fix the alienating messes driving social unrest and mass protest that Rouleau and Mosley have diagnosed.
