This article originally appeared in the National Post.
By Ryan Alford, September 7, 2022
Half a year has gone by since the Trudeau government took the unprecedented step of invoking the Emergencies Act to deal with protesters in Ottawa and at several border crossings. Yet the question of whether this was an appropriate and measured use of emergency powers or an unconstitutional power grab seems no closer to being answered — and likely won’t be, so long as Ottawa continues to hide behind a veil of secrecy.
At both the special joint committee on the declaration of the emergency and in Federal Court, the government has repeatedly invoked cabinet confidentiality to withhold the information that the Incident Response Group (IRG) allegedly relied on to conclude that the Freedom Convoy was a threat to the security of Canada linked to ideologically motivated violent extremism, which is the essential precondition for the lawful use of emergency powers.
If the IRG had no reasonable basis for concluding that a threat of this nature existed, the government expanded its own powers contrary to both law and the Constitution. This would be the most serious assault on the rule of law imaginable. Yet it increasingly appears as though the government’s conclusion had been tenuous at best.
Public Safety Minister Marco Mendicino has stated repeatedly that the police requested the invocation of the Emergencies Act, only to be contradicted with sworn testimony from every police service on the scene.
Later, it was revealed that the federal government declared an emergency, despite being told of a possible breakthrough in talks between the City of Ottawa and the convoy organizers the day before. That deal would have seen many, if not all, of the trucks leaving residential areas. Since the Windsor, Ont., and Coutts, Alta., blockades had already been lifted, this might have catalyzed a peaceful end to the protests.
Despite these revelations, what we might never know looms large over what has come to light, as numerous documents pertaining to the government’s decision that were ordered released by the Federal Court have been so heavily redacted, they now resemble black rectangles with page numbers.
To counter the negative impression this lack of transparency created, the government declared with great fanfare that it would waive cabinet confidentiality before the Public Order Emergency Commission, which intends “to examine and assess the basis for the government’s decision to declare a public order emergency.” Unfortunately, this may prove to be yet another empty promise.
While the commission appears to have shamed the government into waiving one form of confidentiality, Ottawa has another, more powerful privilege that it can rely upon to redact documents and shield its witnesses: national security confidentiality (NSC).
The government fought hard to ensure NSC provisions were included in the commission’s “rules of practice and procedure,” which suggests that it is intent on using them. This, despite the fact that there have been numerous judicial findings of the overuse and misuse of national security confidentiality, particularly when it has been used to disguise the weaknesses of the government’s conclusions about security risks.
As then-Supreme Court chief justice Beverley McLachlin wrote in Canada v. Harkat, judges “must be vigilant and skeptical with respect to the minister’s claims of confidentiality. Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality.”
As Associate Chief Justice of Ontario Dennis O’Connor noted when sitting as the commissioner of the Arar inquiry, the overuse of national security confidentiality “promotes public suspicion and cynicism.… It is very important that, at the outset of proceedings of this kind, every possible effort be made to avoid overclaiming.”
The Public Order Emergency Commission is well aware of this problem: in its rules, it states that it “expects the government to take a considered, proportionate and reasonable approach in making assertions of NSC.”
National security confidentiality is dangerous to an inquiry because it can be wielded not only as a shield, but as a sword. It allows for extensive redactions of intelligence reports the government chooses to submit to bolster its case, but the government can also deploy it to place dubious material before commissioner Paul Rouleau, in a manner that bypasses the challenges that are necessary to determine its reliability. Witnesses may testify outside of the presence of the public and the parties, and documents may be admitted but never seen by anyone other than the commissioner and his staff.
The inquiry’s ultimate conclusion about whether the government engaged in a grossly unconstitutional abuse of power will likely turn on its findings about the links between the Freedom Convoy and ideologically motivated violent extremists. The protesters have pointed to the efforts they took to exclude anyone advocating violence and will likely testify to that effect and be cross-examined vigorously.
In the absence of any contradictory evidence that they were influenced by extremists, the government will likely shift to a different claim: that the protests have emboldened extremists. Indeed, redacted “threat highlights” from the Integrated Terrorism Assessment Centre have already described the convoy protesters as a dangerous catalyst for anger on the far right.
It remains to be seen whether the commission would accept an argument that the emboldening of otherwise unaffiliated extremists could suffice as a rationale for the government to reasonably conclude that a threat to the security of Canada existed.
That would be problematic, as the Emergencies Act states that a public order emergency of this nature must arise from the threat of violent extremism, not that it might merely create an opportunity for other bad actors. Approving the use of emergency powers to limit Canadians’ charter rights of freedom of speech and assembly because of their possible unintended consequences would have dystopian implications.
These serious constitutional infirmities may not be obvious if the government’s assertions are packaged withing alarming hypothetical scenarios and presented behind closed doors, untested through the cross-examination of expert witnesses. To make matters worse, the agencies tasked with formulating and delivering these confidential assessments have a history of being unfaithful to the law, and to the truth.
Less than two years ago, revelations of the security establishment’s disturbing approach to investigating and reporting on extremism led to harsh condemnation by the Federal Court, which criticized it for demonstrating “a degree of institutional disregard for — or, at the very least, a cavalier institutional approach to — the duty of candour and regrettably the rule of law.”
An official conclusion that the government had a reasonable basis to conclude that the Freedom Convoy represented a threat to the security of Canada predicated on secret intelligence detailing vague links between those engaged in peaceful protests and extremists would only deepen the public cynicism that Justice O’Connor warned about, especially since we have had so many other warnings from eminent jurists of the government’s propensity to exaggerate such claims.
When it comes to the judgment of whether the Trudeau government abused its emergency powers, justice must not only be done, it must also be seen to be done. Findings in favour of the government on the basis of secret evidence that might never be seen will never be trusted. The preservation of the rule of law requires, to use the Public Order Emergency Commission’s words, a “transparent and thorough review of the circumstances that led to the declaration of a public order emergency.”
Ryan Alford is a professor in the Bora Laskin Faculty of Law at Lakehead University and a Senior Fellow at the Macdonald-Laurier Institute. He was granted joint standing with the Canadian Constitution Foundation as a party before the Public Order Emergency Commission.