FINAL SUBMISSIONS

AS I HEARD THEM:

So Commissioner Rouleau, for the record, my name is Sujit Choudhry and I’m counsel for the Canadian Constitution Foundation. Commissioner, as you look over the evidence and prepare your report, we would suggest that you do so informed by history. In particular, we would invite you to look back at the Cabinet minutes of the last use of emergency powers by Cabinet before February 2022: the invocation of the War Measures Act in 1970 during the FLQ crisis. These minutes have been declassified and they are in the CCF’s evidence.

At the time, the Prime Minister did not initially recommend that the War Measures Act be triggered. The Security Committee of the Cabinet had met the previous day and were briefed by the security services that there was no apprehended insurrection in Quebec. The Honourable Jean Marchand, the political Minister of Quebec, sharply disagreed at the Cabinet meeting. He presented unverified intelligence at the Cabinet table that the FLQ was, a state within a state and heavily armed. He argued that failure to invoke the Act “meant the risk of losing Quebec.”

In the end, the Cabinet came around to Marchand’s view. I have no doubt that Minister Marchand acted in good faith; however, it is now accepted that he and the Cabinet were deeply mistaken. There was no apprehended insurrection in Quebec. The security services were right. Cabinet overreacted in the FLQ crisis and it should have relied on legal tools outside the War Measures Act.

The basic mission of the Emergencies Act was to make sure that this kind of mistake never happened again. Under the War Measures Act, the Governor in Council had nearly unfettered discretion to determine if an apprehended insurrection existed. On first reading in Parliament, the Emergencies Act only required that the Governor in Council be “of the opinion that a public order emergency exists.” In Committee, the Act was amended to require that the Governor in Council "believe on reasonable grounds" that a public order emergency exists. Minister Perrin Beatty, the author of the Emergencies Act, explained that the shift from an opinion for reasonable grounds test was to “guarantee Canadians the ability that the Courts could rule on whether the Government had reasonable grounds to believe that a national emergency existed.”

The same holds true for this Commission. Commissioner Rouleau, you must determine whether the Governor in Council had reasonable grounds to declare a public order emergency. We say that you must conclude that reasonable grounds did not exist for two reasons:

1) The Governor in Council can only have reasonable grounds to determine a public order emergency exists if it is provided with all the relevant information to enable it to make a proper decision. Yet:

• The government has not established that the CSIS threat assessment was even provided to the full Cabinet. And there are good reasons to find in the record that it was not.

• In addition, the Government has not established that the February 13th policing plan was provided to Cabinet.

2) The proper interpretation of the Emergencies Act is that it incorporates the CSIS Act definition of a threat to national security. CSIS's own expert assessment of this event is that there was no threat to national security. In the face of this finding, the reasonable grounds test requires that the Federal Government provide evidence for why it disagreed with the CSIS assessment. It is simply not enough as a matter of law to say that Cabinet relied on a broader set of inputs.

The invocation of the Emergencies Act has been and should remain exceedingly rare. But now that the glass has been broken on the Act, it can be used again. When the Commission asked hard questions about the Act’s use in 2022, it must also focus on the Act’s potential misuse in the future and protect the right to protest Parliamentary democracy and federalism.

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Thank you, Commissioner. Cara Zwibel on behalf of the Canadian Civil Liberties Association. In February of this year, for the first time, the Government of Canada declared a public order emergency and put in place emergency measures that restricted the rights and freedoms of all people in Canada. These measures placed broad restrictions on the freedoms of Canadians to assemble and protest. They allowed for the Government to compel the provision of services and for personal assets to be frozen with no notice and no due process. These orders handed law enforcement agencies and financial institutions extraordinary powers. The Government may have intended these powers to be used in targeted ways, as drafted, they gave law enforcement across the country measures whose application went well beyond the blockades and could easily have been abused. I have three submissions.

First, the Emergencies Act does not allow for the suspension of Charter rights, but without the existence of a public order emergency, the measures that were enacted would most certainly be contrary to the Charter. In the absence of circumstances amounting to a national emergency, they would constitute serious restrictions on fundamental rights and freedoms that are neither reasonable nor justified in a free and democratic society. So the question, was there a national emergency that justified these measures, is a crucial one. The Canadian Civil Liberties Association respectfully submits that this question is important not only for what it says about the events of January and February of this year, but also because of what it signals to future governments about when Parliamentary process can be bypassed to allow the government to rule by executive order and when extraordinary powers can be used.

Second, the Government of Canada has offered a range of justifications for its decision to invoke the Act. Its primary justification articulated when the Act was first invoked is set out in its section 58 report to Parliament. Although that justification has evolved over time, its core elements are relatively simple and remain mostly intact. The justification focuses very heavily on economic disruption and harm. It also references concerns about the possibility of serious violence, either because of the presence of some violent extremists amongst otherwise non-violent protestors, the possibility that the protests would provide a cover for a lone wolf attack, or allow threat actors to recruit, or the concern that violence would erupt in clashes with counter-protestors.

Apart from the economic concerns, the evidence on which the Government relies to back up these claims is extremely thin. The law enforcement and intelligence agencies, whose expertise should help inform the Government’s decisions, did not assess the protests as giving rise to a serious threat of violence. The most dangerous element we’ve heard about, the cell in Coutts, Alberta with a cache of weapons, was investigated and arrested by law enforcement prior to the Emergency Orders coming into effect without the use of any extraordinary powers, and without setting off a chain reaction of violence amongst protestors.

The Emergencies Act was carefully crafted to avoid the excesses of the War Measures Act that proceeded it. Parliament intentionally identified a public order emergency by tying it exclusively and exhaustively to the definition of threats to the security of Canada found in the CSIS Act. This definition does not include economic harm or disruption, nor should it. It requires activities directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective.

The legal threshold to make use of the Act was not met and a creative and privileged legal opinion from the Government that says otherwise doesn’t make it so. The Prime Minister agreed that the threshold is no lower to invoke the Act and restrict the rights of all Canadians than the standard set out in the CSIS Act to investigate and surveil a single individual. In our submission, the Government exceeded the bounds of the law in taking the steps it did.

Finally, there’s no doubt that the blockades and protests gave rise to serious harms to the people living in communities where they occurred, that they caused significant economic disruption, and that law enforcement agencies were not well prepared to address them. Various governments were struggling to get clear information from law enforcement about its plans and were wary of crossing the apparently still blurry line that risked undermining police operational independence. But the Government also felt a great deal of pressure to do something to address the situation and to be seen to be doing something. Instead of establishing clear and appropriate lines of communication, having frank discussions, and putting instructions about strategic priorities to police in writing, the Government gave law enforcement the biggest and most public nudge it could. It invoked the Emergencies Act and handed law enforcement across the country sweeping and unnecessary new tools and a clear political mandate to use them.

One of the CCLA’s core values is equality, and specifically the belief that the freedom of no one is safe, unless the freedom of everyone is safe. We urge the Commission to bear this tenant in mind as it examines what the Government did and considers what future governments may do.

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Commissioner, my name is Alan Honner and I’m counsel for the Democracy Fund, but I’m also addressing you on behalf of the Justice Centre for Constitutional Freedoms and Citizens for Freedom. We’d like to express our gratitude for this opportunity to participate in these proceedings.

At the commencement of these public hearings, we stated that our goal was to get to the truth about why the Government invoked public order emergency. We wanted to hear evidence about whether the Government met the legal threshold for invoking the Emergencies Act. And Commissioner, we have heard evidence on many issues, but the reasons why the Emergencies Act was invoked is the primary and ultimate issue you should turn your mind to. I won’t repeat the test for declaring a Public Order Emergency because we’ve all heard it so many times, but I would like to address just one part of that test: threats to the security of Canada.

In one way, this is a very high threshold for the Government to meet, as threats to the security of Canada means more than ordinary threats or acts of violence. The definition requires serious violence or threats of serious violence for the purpose of achieving political, religious, or ideological objective. In our written submissions, we will be looking at, among other things, the definition of terrorist activity set out in the Criminal Code and how it is similar to the CSIS definition. And in fact, some of the CSIS documents that were disclosed to the parties through this Inquiry show that CSIS refers to section 2(c) as terrorism and extreme violence. And this reference is indicative of just how high that threshold is. We submit, and the Prime Minister’s evidence left little doubt, that this very high threshold is the same whether it applies in the Emergencies Act or the CSIS Act. The context, the decision-maker and the purpose are obviously different. There may even be different inputs, but those inputs are meant to answer the same question: are there threats or acts of serious violence for political, religious, or ideological purposes? And that is the one and only standard.

Commissioner, I have made reference to how high the threshold is, but in a different way it's a low threshold, and on the issue of threats to security of Canada, it doesn't require, for example, proof beyond a reasonable doubt, nor does it even require proof on a balance of probabilities. The threshold only requires the Governor in Council to actually believe that there are threats to the security of Canada, and it requires that belief to be reasonable. And, respectfully, we submit, and we'll argue in detail, that the Government has not even met this low threshold.

There may be reasonable grounds to believe that some acts of violence were happening, ripping off masks, police officers being swarmed, eggs being thrown, coffee being thrown. These and other things may have happened during the protest (and let me be clear, that is not acceptable); but those acts do not rise to the level of violence or threats which are required by the Act. And further, they do not reflect the attitudes, actions, and values of the vast majority of peaceful protesters. Even the most significant threat we've heard of, which was the presence of weapons in Coutts, Alberta does not meet this threshold, and even if it did, it was neutralised. Those alleged criminals were sitting in an Alberta jail when the Emergencies Act was invoked. The threshold requires present threats, not past threats, not fear of the unknown.

Canadians, and even the international community, are and will continue to be divided over the Freedom Convoy protests. Canadians will also be divided over future protests. As one of my friends aptly observed, tomorrow's protest could be environmental issues, or it could be about some other political cause. To safeguard democracy, the rule of law, and the cherished right to protest for everyone, no matter what you believe, we must ensure that the Emergencies Act is only used as a last resort in the direst circumstances.

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Good afternoon. My name is Cheyenne Arnold-Cunningham. I'm counsel on behalf of the Union of B.C. Indian Chiefs. The Union of B.C. Indian Chiefs has a significant interest in the exercise of emergency powers by the Canadian Government, generally. In this Inquiry, we have been particularly interested in understanding how emergency powers were used in the Freedom Convoy situation, and whether the use of state emergency powers respects Indigenous rights and jurisdiction.

Solely on the facts, Commissioner, we have just one brief submission. We highlight from the evidence that there was limited, if any, consultation and engagement with local First Nations Governments of the territory. On this, I draw your attention to the testimony of witnesses who had close knowledge of this matter.

First, we heard from Deputy Minister of Public Safety, Rob Stewart. In response to a question from the Union of B.C. Indian Chiefs regarding which First Nations governments, representatives, and Indigenous groups were consulted with during the convoy situation broadly, he testified that he was not aware of any consultation efforts, and he narrowly connected it to matters associated with law enforcement and urban areas or at border points. He also testified that he was not aware of efforts on behalf of the Government of Canada or police services to consult with First Nations of the territory. However, it was later noted by counsel for Canada that Canada did engage with Indigenous leaders, specifically regarding blockades, but none where First Nations leaders of the territory where the events occurred. This is significant to us.

This was further confirmed in the evidence of RCMP Commissioner Brenda Lucki. In response to questions from the Union of B.C. Indian Chiefs about whether First Nations of the territory were consulted, she testified that she was not sure. She noted it definitely did not occur in the Ottawa area, but there may have been efforts to do so in British Columbia, Alberta, and Saskatchewan, but overall she was not sure. Commissioner Lucki's evidence seems to suggest that generally speaking engagement with Indigenous peoples in these contexts occurs when there is Indigenous involvement or if the event was on Indigenous land, but noted that there are special teams that exist for that purpose.

The Minister of Public Safety, Minister Mendicino, confirmed that it is important for Public Safety Canada and police services to engage with First Nations of the territory, and that it's also important for this to be built into the response to Public Order Emergency events across the government broadly. Minister Mendicino also emphasised that this type of engagement requires relationships to be built with Indigenous leaders so that we can move forward with reforms inspired and governed by the United Nations Declaration on the Rights of Indigenous peoples.

Commissioner, the evidence in this Inquiry illustrates that there was a lack of recognition of Indigenous jurisdiction in a Public Order Emergency event, and a lack of respect for Indigenous rights, specifically including the obligation to engage properly with the First Nations governing body that is a representative of the traditional territory or territories where a Public Order event occurs. This is noteworthy and important as the coordination of jurisdiction and authority must include First Nations governments and representative leaders from the territories impacted.

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Good afternoon. Mandy England for the Government of Alberta. Reflecting back on the past six weeks of evidence, there's obviously much for you to consider, Commissioner. The many aspects of your mandate include making recommendations to provide guidance for potential refinements to the Emergencies Act and guidance for future invocations of the Act. The Government of Alberta would highlight two main points related to this aspect of your mandate.

First, consultation with the provinces is required by the Emergencies Act. This is extremely important to our constitutional system. It is not a suggestion to which the federal government can just pay lip service.

One aspect of this is timing. We've heard extraordinary evidence that the Government of Canada did not want to raise the potential invocation of the Act with the provincial governments until more than a few hours before it would be invoked on February the 14th because they were afraid that the information would be leaked to the public. And yet, the Federal Minister of Emergency Preparedness himself spoke to more than one national media outlet the day before on February the 13th. Being suspicious of the provinces, especially after a Federal Minister has already raised it with the media cannot be an acceptable reason for the Government of Canada not to have the required meaningful, good faith consultations with the provinces about a matter as serious as invoking the Emergencies Act.

Another aspect of this is weight. Seven provinces advised the Government of Canada that they did not support the invocation of the Act in their province, that there was no need, and that they had the capability and authorities to deal with the situation. And in fact, provinces including Alberta did deal with it before the Emergencies Act was invoked, with existing capability and authorities. The Incident Response Group was told on the afternoon of February the 13th, the day before the Prime Minister says he decided to invoke the Emergencies Act, that an enforcement action was being undertaken at Coutts. And the Prime Minister has acknowledged today that he was advised at the time of the First Minister's Meeting that the enforcement action was well underway, that arrests had been made, and that Coutts was secured.

The relevant test under the Emergencies Act requires that in order for it to be invoked for a Public Order Emergency, the situation must exceed the capacity or authority of the province to deal with it. If the Government of Canada has been advised by the provinces prior to invoking the Emergencies Act that it does not exceed their capacity or authority can that simply be ignored? We have heard evidence about worries that protests might return, and we have heard of the convenience of freezing accounts at financial institutions across the country to convince people to leave. But can worries and simplicity trump the wording of the legislation and the constitutional deference that must be afforded to the provinces? As Counsel for the Commission put it to one Minister during the examination, if what the Government of Canada did in this case qualifies as sufficient consultation, is there anything that wouldn't?

Next, appropriateness of the measures included in the Order and Regulation issued under the Emergencies Act is another area of review. Freezing the bank accounts of Canadians engaged in political protest without due process is extraordinary. We have heard evidence that it was not only accounts of those protesters, but joint accounts, meaning Canadians who weren't at the protest at all, had their accounts frozen. The question is whether the fact that it might have been a quick way, or an easy way, to bring a protest to an end can be accepted as sufficient justification for such a serious and broad infringement on the rights of Canadian citizens – particularly when there were clearly other adequate tools to enforce the law and bring the protest to an end.

Among the many issues raised in these proceedings, these are just two that we are hopeful the Commission will carefully consider.

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I’m Mitch McAdam, one of the lawyers for the Government of Saskatchewan. Saskatchewan intervened in these proceedings for two reasons. First, because of concerns that the measures taken were overbroad in two senses: they interfered with provincial powers and infringed on the rights of citizens. Second, because of concerns that the statutory threshold for invoking a public order emergency was not met.

Saskatchewan is very concerned about the impacts of invoking the Emergencies Act on federalism. The emergencies power flows out of the Peace, Order, and Good Government clause in the Constitution Act, 1867 and gives the Federal Government the power to temporarily assume provincial powers under the Constitution. In many ways, it is like the Notwithstanding clause in the Charter.

In this case, while the Federal Government has said that it was simply providing additional tools to police, the fact is that they assumed significant provincial powers. Policing is a matter that falls under provincial jurisdiction. The Emergency Economic Measures Order is not just about banking. It expressly deals with credit unions, insurance companies, trust companies, loan companies, securities dealers, and investment advisors. All matters that fall under exclusive provincial jurisdiction. While many of these powers were not relied upon by the police, the Order itself caused confusion and represented a serious, and in our view, unnecessary intrusion into matters under provincial jurisdiction.

The Province is also concerned that the measures adopted under the Emergency Economic Measures Order were overbroad and may have infringed on the Charter rights of Canadian citizens. But we will leave the submissions on that point to the Civil Liberties Group.

Next I’ll turn to the threshold in the Act. Again, there are two branches to Saskatchewan's argument. First, the threshold is a statutory test. It's a high threshold and it's a high threshold for a very good reason. The threshold is not whether the Emergencies Act was necessary or whether it was helpful. The test is whether there are reasonable grounds to believe that a Public Order Emergency exists. Others will discuss, I suspect in great detail, whether that threshold is limited to threats to the security of Canada as defined by the CSIS Act or whether it's broader. I'll largely leave those arguments to others. However, there is one point that we think you must keep in mind as you sift through the evidence, and that's section three of the Emergencies Act. Section three provides that a national emergency is something that exceeds the capacity or authority of a province to deal with and specifically provides that a national emergency can only be invoked if the situation is such that it cannot be effectively dealt with under any other law. So you will need to examine the tools that were available to law enforcement to deal with the protests.

We've heard a lot of evidence about tools in this case, and I would say that the Emergencies Act and tools is a bit of a chicken and egg problem. Does the emergency arise first and then the Act provides for tools to deal with the emergency, or can an emergency arise because there aren't sufficient tools to deal with the situation? I tend to think it's the former, and I think there is a concern that the Emergencies Act should not be used simply as a way to fill in the gaps in the law. That was never its purpose.

Second, Saskatchewan's primary focus in this case is on the consultations with the provinces. It is Saskatchewan's position that the consultations in this case were inadequate. We say that there are a number of things you should focus on:

1) The precedent from 2020 [at which time Trudeau sought the opinions of Premiers about whether he should invoke the Emergencies Act on public health ground due to the COVID-19 pandemic. (And who responded that invocation was "neither necessary nor advisable".)]

2) There were opportunities to consult with the provinces earlier. We've heard that the Emergencies Act was on the table by February 9th or 10th if not earlier. The federal government could have consulted with the provinces at the front end instead of at the back end

3) There's evidence which we will suggest shows that the decision to invoke the Emergencies Act was de facto made on February 13th before the First Minister's Meeting. The Prime Minister confirmed this morning that the consensus at both the IRG meeting and the Cabinet meeting on February 13th were to proceed with the Emergencies Act

4) The actual meeting that was held with Premiers on the 14th. This meeting was set up on very short notice with no indication of what the subject matter was to be and it lasted about one hour. When we file our written submissions, we will refer you to case law in other contexts which suggests that this is not an adequate consultation