Commissioner Paul Rouleau says it was with “reluctance” that he decided the federal Liberal government was justified in its use of the Emergencies Act over a year ago to quash the Freedom Convoy protests.
That word really says it all.
The idea that the government was right or made the right call or has been vindicated—all of that is inaccurate. Rouleau basically writes—and surely all Canadians know this to be true—that what went down was overkill that should really have been avoided.
Only those people who still believe incorrect media reports about how convoy participants attempted to burn down an apartment building or came to Ottawa with the intent to literally overthrow the government would believe that invoking our modern-day wartime measures act was the right call.
What Rouleau has basically said is that the government does appear to have genuinely believed there was a major national security risk and therefore, from their own perspective, one can appreciate why they did what they did.
It’s not like he ruled that, yes, the convoy presented an existential threat to Canada or that it was in fact a violent occupation of the nation’s capital.
“I have concluded that Cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable. There was credible and compelling evidence supporting both a subjective and objective reasonable belief in the existence of a public order emergency,” wrote Rouleau. “The decision to invoke the Act was appropriate.”
The caveats in that paragraph are wide enough to drive a truck through.
Cabinet was “reasonably” concerned. The situation was “at risk” of becoming dangerous—but wasn’t there yet. There was enough there, not so much to support the slam dunk fact that there was an emergency, but to support why someone might have a “reasonable belief” that there was one. And, most importantly, the decision to invoke the act was not necessary or vital but merely “appropriate.”
The commissioner writes that his reluctance is based on how “the state should generally be able to respond to circumstances of urgency without the use of emergency powers.”
No kidding.
After Prime Minister Pierre Trudeau invoked the War Measures Act during the 1970 October crisis, there was a similar post-mortem over whether its use was justified. The previous two occasions it had been used were during the past two world wars.
It makes sense to use a war measures act during an actual war. But what happened in 1970 was that the Front de liberation du Quebec (FLQ)—a Marxist-Leninist separatist guerrilla group—kidnapped British diplomat James Cross and murdered Quebec labour minister Pierre Laporte. Trudeau used the act based on his concern that the kidnappings and violence would only escalate.
There were mixed opinions then as to whether the first Trudeau was right in his call, because as terrible as the FLQ’s actions were, the flaring up of a terror cell wasn’t a war on the same scale as what spurred the past uses of the act.
The reason we have the Emergencies Act we now have is because Parliament wanted to update the War Measures Act to protect it from abuse. The overarching objective was to see that the next time it was used, it would be crystal clear that invoking it was the right call. Instead, the opposite has happened.
That Rouleau did not rule that using the Act was without a doubt the right call is in fact proof that Prime Minister Justin Trudeau was not right to invoke it.
Basically, Rouleau gave the government a pass on a technicality. It’s like saying that while the invocation didn’t violate the letter of the law it violated the spirit of the law.
The big question becomes what happens next. Even those who thought Rouleau would rule against the government’s use were skeptical that there would be any formal or meaningful consequences for having wrongly invoked the Act.
Besides, opinions seem pretty firmly entrenched when it comes to the convoy. Although perhaps had Rouleau ruled against the government’s invocation of the act, it would have swayed some people who were on the fence about the convoy to offer it greater sympathy.
If he’d said the act’s usage was wrong, we’d maybe at least be in a position where the government agreed to revise the act or eliminate it to prevent future abuse. We don’t even have that though.
Instead, what this means is the precedent has been set where even if it’s debatable as to whether or not it’s right to use the Act, you can still get away with using it. That’s a very troubling precedent.
