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Michael Kempa: The only clear lesson of the Emergencies Act mess? Reform is needed

Commentary

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.

Justice Paul Rouleau releases his report on the Liberal government’s use of the Emergencies Act, in Ottawa, Friday, Feb.17, 2023. Adrian Wyld/The Canadian Press.
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.

Marco Mendicino, Chrystia Freeland, Justin Trudeau, David Lametti, and Bill Blair listen to a reporters’ question, in Ottawa, Friday, Feb.17, 2023. Adrian Wyld/The Canadian Press.

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.

Amal Attar-Guzman: The Taylor Swift deepfake porn scandal highlights how dangerous AI can be

Commentary

AI is both a gift and a curse. On one hand, it has opened up a new world of possibilities and helped make everyday life easier, faster, and more efficient. On the other hand, it’s opened up Pandora’s box, letting loose a variety of negative, complex social outcomes that are quickly becoming difficult to contain or mitigate.  

Early in March 2023 I wrote about some of the under-discussed issues women have been facing as the result of these new and emerging technologies. One such issue that stood out to me was the rise of non-consensual deepfake pornography. As of December, deepfakes have risen exponentially, with researchers now predicting that there will be over 5.2 million deepfakes in 2024. 

So when it was time to make The Hub’s 2024 predictions, I decided to raise the alarm once again, predicting that deepfakes and AI technology would soon move to the forefront of Canadian public policy. With its exponential rise threatening democracy and its institutions and the recent case of deepfake child pornography of teenage girls in Winnipeg, the evidence now seems clear. Not only is this fast becoming a major technology story, it is now becoming a gender-based and societal issue at large.

What I did not expect was for my prediction to come true so soon, just a few weeks into 2024. Nor did I expect to see non-consensual deepfake pornography of Taylor Swift on my X feed. 

Now, I am not much of a Swiftie. But not only did I feel disgusted seeing those images on my social media account, I also felt a deep-seated rage seeing people immediately target and harass her. This visceral anger only got worse when I saw the alleged Canadian creator of these images starting to gloat and revel in his newfound online fame. What was even more heartbreaking was that as the backdrop to all this, Taylor Swift was dealing with a recent stalking case

Thankfully, fellow Swifties quickly rallied together to push X to take down these images. The company complied. Both X and Meta have put regulations in place to deal with these deepfake cases, and while they are not perfect, at least something is now there to deal with the issue head-on. 

Seeing this happen to Taylor Swift really puts things into perspective. If this A-list, worldwide celebrity and billionaire, who won multiple Grammys, accolades and sold billions of dollars in concert tickets, can be a target of non-consensual deepfake pornography, what about the rest of us women? 

Sadly, this is fast becoming a reality. Between 2022 and 2023 there was a notable 1,740 percent deepfake surge in North America, one of the highest reported around the world. Women are disproportionately affected. According to a 2023 study by Amsterdam-based company Sensity, 96 percent of deepfakes were non-consensual pornography depicting women.

This is fast becoming a fear for women from all backgrounds. Deepfakes are used to silence and shame women in the public eye and even in the private sphere. If they say what they think, stand up for themselves, or even go against the societal grain, one way or another, they can get punished by anyone, whether they know them or not, without remorse or recourse. No one is safe from this new form of sexual harassment, defamation, and public humiliation. 

While many on my X feed shared these same concerns, one perspective caught my attention. Jesse Brown, journalist and publisher of Canadaland, posted on X that while the situation was gross, policymakers need to be careful about legislating on these issues. As he put it: “[While Canada] need[s] laws against deepfake porn that tells convincing lies,” Swift’s case amounted to “horny fanfic” that “should not be a crime.” 

Brown’s comments attracted a negative reaction, including from me. I decided to listen to the Canadaland episode to see if there was a perspective I might be missing. After listening to the conversation, a couple of thoughts came to mind. 

First, with all due respect, I disagree with the notion that what happened to Taylor Swift was just “horny fanfic.” There is a huge difference between creating fanfiction of fictional characters and celebrities that are meant to celebrate them, versus creating degrading deepfake pornographic images. 

Intent is key. Generating deep fake porn of Taylor Swift wasn’t done to celebrate or even idolize her. It was done to humiliate and degrade her, encouraging people to harass her. If the same thing happened to politicians, journalists, or ordinary citizens, it would still be wrong and some sort of regulation and legal recourse would be needed. 

I also disagreed with the notion that because the deepfake pornographic images looked fake and not realistic—that it’s not a “convincing lie”— it’s not as big of a deal as realistic-looking deepfake pornography that might actually convince people that it’s real. Here’s the thing: even if someone is not completely recognizable, harm is still there. Deepfake porn is the modern-day pornographic drawing of a girl in a boy’s bathroom. It is a form of sexual harassment even if it “looks fake.” 

However, there was one point that Brown raised that was worthwhile. When it comes to regulating or even criminalizing deepfakes, we must be cognizant of the effects on freedom of expression. What about in cases of political satire, or even political messaging or advertising? How should we think about that? 

In such circumstances, a complete ban or extreme restriction of deepfakes would be an overstep. Already, we’ve seen some backlash to Meta’s policy regarding deepfakes, which saw its oversight board acknowledge that in some cases where media is manipulated for humour, parody, or satire, it “should be protected.” As Brown rightly asked, “If you cannot draw rude pictures of the elite, then are you truly free?” 

This screenshot made on Monday, Jan. 29, 2024, shows a Taylor Swift search error on social media platform X. X has blocked some searches for Swift as pornographic deepfake images of the singer have circulated online. (AP Photo)

In terms of Canadian policy and law, if future legislation does not strike the right chord, it could lead to a constitutional challenge. AI experts, policymakers, and legal scholars will need to ask themselves this question: how can public policy provide regulations on deepfakes that, if brought to a court of law, could survive a Charter challenge in terms of “reasonable limits”?

Perhaps the answer lies within current law regarding sexual harassment, defamation, and copyright law. Deepfakes and other AI-manipulated content that provide misinformation and disinformation with criminal and defamatory intent will need to be captured, while explicitly ensuring that cases of political commentary, advertisement, and satire aren’t subject to restrictions. Maybe in the latter’s case providing disclaimers will be needed to allow its promotion. 

These are not easy solutions. Which responsibilities and obligations should fall under the realm of social media platforms or the government needs to be explored and debated. And, no doubt about it, mistakes will be made. 

But regardless, it is clear that there needs to be some explicit public policy and legal recourse to deal with the issue head-on—one where freedom of expression is preserved, but as importantly, people are prioritized and protected.