Full Comment - February 27, 2023


Invoking the Emergencies Act will get easier


Episode Stats


Length

41 minutes

Words per minute

163.8567

Word count

6,855

Sentence count

279

Harmful content

Hate speech

1

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

Civil liberties advocate Kara Zwiebel joins us to discuss the Public Order Emergency Commission's report on the use of the Emergencies Act in response to the 9/11 terrorist attacks on the U.S. Consulate in Benghazi, Libya.

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
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00:01:44.900 The use of the Emergencies Act was justified, or so says Justice Paul Rouleau, who headed up the Emergencies Act Inquiry,
00:02:10.800 or I guess by its proper name, the Public Order Emergency Commission.
00:02:16.540 Hi, I'm Brian Lilly, host of Full Comment Podcast, and this week we're going to examine the issue of civil liberties in Canada, the Emergencies Act.
00:02:25.140 When is it right for governments to lift, infringe, block civil liberties?
00:02:30.900 Do we actually believe in charter rights and civil liberties anymore, or is it just a transactional thing?
00:02:36.400 It depends on whether we agree with how they're being infringed.
00:02:40.800 Our next guest will have many answers on that, but before we get to her, I do want to remind you that you can always subscribe to Full Comment Podcast on any of the devices or apps that you listen on, and please do.
00:02:52.000 We encourage that.
00:02:53.440 Give a subscription, give a thumbs up, like, leave a comment, and of course spread the word, because we're having conversations you probably aren't hearing elsewhere.
00:03:02.040 Kara Zwiebel is the Executive Director of the Fundamental Freedoms Organization at the Canadian Civil Liberties Association.
00:03:11.100 I'm sure I just botched that, Kara, but thank you for taking the time to join us and discuss.
00:03:16.960 We haven't spoken since the Emergencies Act inquiry came out.
00:03:23.900 What was your initial reaction, both as a lawyer but as a citizen, when Justice Rulo released his report?
00:03:31.440 Well, there was certainly a lot of anticipation, you know, about what the report would say and do.
00:03:39.880 I think that, you know, certainly our impression during the course of the commission's hearings was that the commissioner was troubled or concerned by some of what he was hearing.
00:03:51.560 And so when the report came out, obviously, it's a long document, you know, it's taking time to digest all of what's in there.
00:04:02.960 The big headline, of course, when it was released was that Commissioner Rulo did find that the threshold for invoking the act was met.
00:04:11.520 And that's a conclusion with which we at the CCLA disagree.
00:04:15.900 So there, you know, I think is some some disappointment that that finding was made and that some of the the arguments that were made by by some of the parties before the commission didn't get more purchase.
00:04:28.800 But, you know, I do, you know, trying to be, I guess, more more positive, I do think that the work of the commission was was very important and valuable in terms of giving Canadians or at least those Canadians who who care to pay attention, you know, a really a really detailed picture of the events that led up to to the protests of the protests themselves.
00:04:56.780 And police, you know, police, you know, police actions and government actions over the course of those few weeks.
00:05:06.100 I'm like you, I disagree with the outcome.
00:05:09.420 I disagree with Justice Rulo's findings.
00:05:13.260 But I'd like your sense of how you thought he composed himself during the hearings.
00:05:20.680 I thought that even though I disagree with his final outcome, I thought that he was fair during the hearings.
00:05:26.220 I wasn't there.
00:05:27.080 I was watching it a lot.
00:05:28.180 You were there quite often.
00:05:30.340 He did seem to give a good sense or a good, a fair hearing to all sides.
00:05:37.580 I agree.
00:05:38.760 I mean, I think that, you know, he's an experienced judge.
00:05:43.660 He's he's used to considering arguments and and sort of hearing, you know, hearing from witnesses, assessing credibility.
00:05:52.000 I think he he and the rest of the commission, sort of the commission council and staff that were involved in the whole process went to great pains to try to make sure that the process was as fair and as transparent as possible.
00:06:05.640 You know, they did try to and manage to reach agreements with the government to hand over a lot of things that otherwise governments usually refuse to disclose, including some of the inputs that were before cabinet.
00:06:20.560 And they even went so far as to issue, you know, a subpoena to the premier of Ontario and the minister Jones, who had been the solicitor general at the time of the protest to try to hear their evidence.
00:06:34.860 So I think the commission was, you know, was was open minded and approached the task with with exactly the right spirit.
00:06:42.980 And also, you know, a lot of people were saying that the way that the terms of reference for the commission were were drafted by the government and the way that the mandate of the inquiry is set out in the statute didn't require Commissioner Rouleau to to sort of come to a conclusion about whether the threshold was met.
00:07:03.300 And and and and he, you know, rejected that, which I actually think is appropriate, despite disagreeing with, you know, with the conclusion.
00:07:11.400 I think it was important for for him to, you know, to grapple with the arguments and the evidence that he heard and to to make findings in relation to to all of those issues.
00:07:22.480 I remember hearing that argument, especially from supporters of the government, because they didn't want him to say one way or the other.
00:07:30.860 Was it appropriate to use?
00:07:32.500 And I looked at the order in council and the term set out in there and it specifically said that the commissioner should determine whether it was appropriate.
00:07:41.580 And I thought, well, of course, then he has to say something.
00:07:45.740 You mentioned that he went out of his way to to get documents from the government.
00:07:50.780 And and and and I will give the Trudeau government credit.
00:07:54.160 They did waive cabinet confidences in many areas, not all.
00:08:00.420 But they they came up with or they told the commission towards the end that they had a legal opinion devised by the Department of Justice that justified their use of the act.
00:08:15.000 And that it was broader than what is in the legislation.
00:08:19.880 But they wouldn't share it.
00:08:22.320 But before we get into how the government justified it.
00:08:25.520 Do you think that that is wise, acceptable, you know, is it is it the way government should act to to say we've got a secret legal opinion, but we're not going to tell the commission that's here to decide whether we did the right thing?
00:08:44.020 So, I mean, ordinarily, you know, the the the rule and the principle that supports strong protection for solicitor client privilege is, you know, is is very important.
00:08:56.840 And there are good reasons why we don't you know, we don't want those types of opinions to be disclosed in the ordinary course.
00:09:06.240 But I mean, nothing about the use of the act or what happened last year in, you know, in January and February is is ordinary.
00:09:14.720 And so I do think in this case there were good reasons to to waive the privilege.
00:09:21.300 And I also think it was a problem.
00:09:25.720 And I think the commissioner does identify this.
00:09:27.680 It's not just that the government didn't disclose the legal opinion.
00:09:31.780 It's that really their their sort of legal theory around the justification didn't really crystallize until pretty late in the commission's proceedings.
00:09:43.320 It wasn't sort of until the last maybe two weeks or so of the of the witnesses that we we started to hear this idea that, you know, that the definition of threats to the security of Canada in the Emergencies Act meant something different than it meant in the CSIS Act.
00:10:05.420 And and even now, I think there's a bit of, you know, murkiness around exactly what the government's theory is.
00:10:12.420 It's we heard from different witnesses, different things.
00:10:14.900 Some said the definition is broader.
00:10:17.320 Others said it's not that it's broader.
00:10:19.320 It's that there's a different decision maker and it's made in a different context.
00:10:24.120 So, you know, I still think there are some aspects of that that were were unclear.
00:10:29.120 And the commissioner, I think, does identify this and I think even makes a recommendation around the need for the government very early on in the commission process to lay out in much more detail exactly what its justification is.
00:10:43.800 Because when the emergency is is declared, you know, the government has to put forward a justification for parliament to consider.
00:10:51.120 But that's done, you know, under tight time constraints and may not be sort of as as robust or complete as the government would want it to be.
00:11:01.280 Before the commission, you know, there's there's plenty of time for the government to pull that together.
00:11:08.320 And there was really, I think, no reason for these sort of late disclosures of, you know, of different theories of what, you know, what what the legal opinion said or the legal basis on which the government was proceeding.
00:11:24.760 The the government's arguments that the definition of what constitutes a threat to national security and the CSIS Act is is somehow different when brought into the Emergencies Act didn't really wash with me.
00:11:44.240 It's all started to become or sound very muddy, whereas to me, you know, while I think it's a clumsy way to have written the legislation to say that a national threat to national security as defined by Section two of the CSIS Act.
00:12:00.140 So rather than, you know, putting that in the Emergencies Act, they reference a different act that maybe that's a clumsy way of doing it.
00:12:08.220 But to me, it is fairly clear. And in my view, it was the act was written to make it so that you had very strict parameters.
00:12:18.780 The government that passed the Emergencies Act wanted very strict parameters so that it wasn't easy to invoke the Emergencies Act.
00:12:26.600 I worry that the way that this has gone about with the invocation and then how the government justified it makes it easier for future governments to invoke the act.
00:12:40.100 I wonder your thoughts on that, Cara.
00:12:41.540 Yeah, I mean, I do share that concern. And I think one of the, you know, one of the concerns around the government's justification and frankly, even the findings in the commission's report is that, you know, it's still fairly, I'd say, you know, what what constituted the threats to the security of Canada and these circumstances is fairly diffuse for lack of a better word.
00:13:08.180 You know, there's, you know, there's, there's a lot of sort of context that's folded in, the commissioner does say that, that economic concerns alone would not be enough to constitute, you know, to meet the threshold, but that the economic concerns were an important part of the context here that the government was considering.
00:13:26.300 There, there, there isn't, you know, a specific threat the government points to.
00:13:32.080 Yeah, I'd like to expand on, on that because I felt that towards the end of the last several weeks of the, the hearings, that the government wasn't so much making the case for why they were justified as they were making a case for amending the act to include economic considerations like blocking of the ambassador bridge and the economic harm that that would do.
00:13:55.160 Mm-hmm. Yeah, yeah, I think, I mean, I think it's, it's right that they were, you know, if not saying that it should be amended, saying that it already did allow for that.
00:14:06.740 I think they were, because certainly the justification that was tabled before parliament, you know, shortly after the declaration was made, spends a lot of time talking about economic concerns and concerns about, you know, Canada's reputation as a reliable trading partner and things like that.
00:14:23.760 And, you know, and, you know, and the government, the council for the government before the commission did, did, I think, take the position that these were, were serious threats that they, you know, they did result in, in threats to the livelihoods of Canadians and the lives of Canadians.
00:14:43.260 And, and that, you know, and that, you know, and that, you know, that they met the threshold for those reasons.
00:14:49.080 And I don't think that's what the act contemplates.
00:14:52.340 I don't think it's what the act should allow for.
00:14:55.760 We did include that in our submissions, not only that, you know, economic considerations don't currently meet the definition,
00:15:05.060 but that the act should not be amended to allow economic considerations to, you know, to justify the use of emergency measures.
00:15:11.900 We have economic ups and downs, even very serious ones all the time, and governments can use the ordinary democratic process to, you know, to address those.
00:15:24.260 So taking the extraordinary step of declaring an emergency and then, you know, governing by executive order is not, in our view, justified based on, on those types of economic concerns.
00:15:36.340 Um, so, so, so I, you know, I do think the government was, was looking at, at different ways and at shoring up, um, you know, their decision.
00:15:46.300 And, and certainly, um, you know, we heard a lot, particularly from, uh, from the deputy prime minister before the commission about the economic concerns and what a, you know, what a very significant, prominent role those played in, in the government's decision-making.
00:16:02.540 And particularly in, in, you know, in, you know, her thinking around the, the invocation.
00:16:08.100 I agree with you that the government relied too much on, on that and, and that the act doesn't cover it.
00:16:14.100 But I wonder if you could expand for me on, on why you and, and, and the CCLA don't think that economic harm should be a reason to go forward.
00:16:24.960 So, you know, shutting down the ambassador bridge, for example, billion dollars of trade each day.
00:16:30.900 Um, if, if that had gone on, I had been speaking to people in the auto industry saying, well, you know, there's going to be a hundred thousand people on temporary layoff until this is fixed.
00:16:41.860 Um, some people may never get their jobs back.
00:16:45.220 Given those circumstances, why do you say that not only was that not part of the act, but it shouldn't be in the future?
00:16:52.520 You know, I guess it's, it's hard to separate out, um, the, the, the view that that shouldn't be part of the, the threshold from, from the other view, which is that, uh, that we, we have adequate legal tools to address these things already.
00:17:08.800 Right.
00:17:09.080 That's another, that's another part of the criteria for using the act that we don't really feel was, was met in this case.
00:17:16.840 Um, different levels of government and, and for sure there were problems with coordination and, um, you know, playing nicely with one another.
00:17:25.800 I think that, that had a role to play in, in the events that took place, but police have tools to deal with these kinds of, of protests.
00:17:35.640 I mean, ultimately the ambassador bridge was cleared before the emergencies act was invoked, um, because there was an injunction was obtained and police, uh, engaged in an operation to, you know, a public order operation to clear the bridge.
00:17:53.200 So, so it, so it, it is hard to separate, I guess, those, those different criteria, but it's partly that, um, the, the way in which the particular type of emergency that was used here, a public order emergency is really about, supposed to be about kind of a, what I see as sort of an on the ground and much more immediate threat to health and safety.
00:18:16.280 Then the, the, the, the more, what I would say, sort of more remote threats that might come from, you know, um, a breakdown in supply chains or loss of jobs.
00:18:25.060 I mean, you know, many of those other, um, consequences were also consequences of the measures that were taken, you know, during the pandemic.
00:18:34.440 And we have, uh, there's a type of emergency under the emergencies act that could have been used as a result of the pandemic, um, a public welfare emergency that is, you know, that is dealing with that type of, um, threat to, to, to, to health and the need for measures to, to address that.
00:18:54.820 But the public order emergency, which has specific powers that it allows governments to use, um, I don't think is intended for that, that type of problem.
00:19:06.300 We often hear, you know, we consume a lot of American news and there'll, there'll be a bad fire in California.
00:19:14.740 There will be a flood in Ohio.
00:19:17.780 There will, you know, something will happen and you will hear that the governor has declared a state of emergency.
00:19:24.820 Now, their law is, is very different than ours and, and, you know, their state of emergency is very different than ours.
00:19:32.460 But, but as Canadians, we, we hear that, we consume that.
00:19:36.020 And often when, when something big happens here, there are media calls for governments to declare a state of emergency because they feel like it means governments doing something.
00:19:45.800 Do you, do you, do you think that Canadians understand how far reaching our emergencies act is, or did they just want something done when you hear about how, how big a percentage of the population supported it?
00:20:00.720 Do you think they just wanted government to do something to deal with the situation and, and they don't really understand that it's giving government incredibly sweeping powers and that it is suspending civil liberties?
00:20:15.980 Well, I think that, you know, there are differences, I guess, and even within Canada, I mean, our federal emergency legislation is quite different than the emergency legislation that we have in different provinces and territories and, and municipal emergency legislation.
00:20:33.120 And, you know, and, you know, during the pandemic, I think people got quite used to living under emergency, emergency powers in different ways.
00:20:42.860 And, and actually, in many ways, the federal legislation is superior, because it has a lot of really important accountability mechanisms built into it.
00:20:53.520 So it has a parliamentary, you know, review process, the, the houses of parliament have to confirm the state of emergency within, you know, relatively short order, and, and they have to confirm the emergency orders that the executive puts in place.
00:21:10.200 And we have this requirement for, you know, for a commission of inquiry, the whole thing is subject to judicial review.
00:21:16.740 So there are some really important mechanisms that, that don't exist in some of the other emergency legislation that we have, and actually that, that I think should, you know, and I think, I think, I think looking at some of the commission's recommendations, the provinces should really be looking at improving the, the accountability pieces in their own emergency legislation.
00:21:41.500 But I think, I think, I think you're right that many, many Canadians who say they support the use of the emergencies act really mean they supported the end of, you know, the protests and the blockades.
00:21:54.520 And, and similarly, you know, the flip side is, is, and we've, we've heard this as an organization, the CCLA has heard this for many people, that by opposing the use of the emergencies act, we are supporting the protests and the protesters.
00:22:08.260 And I've, I've, I've tried very hard to, to make the point that, you know, our, our focus is really on the actions of the government and whether they are justified and holding the government accountable for that.
00:22:20.960 It's, it's, it's not that we think, um, the situation that was happening in, in February of last year, you know, should have been allowed to continue forever.
00:22:30.000 It's that, um, it's that we felt that there were already legal tools that police and governments could use to bring it to an end and that the use of this extraordinary power, um, didn't need to come into the picture.
00:22:44.040 So, um, so yeah, there was very much a tribal reaction to this, wasn't there?
00:22:49.240 Because I, I've received, um, you know, similar claims, well, you must support the truckers because you opposed the use of the emergencies act.
00:22:57.320 No, I just wanted police to clear it away.
00:22:59.080 I don't like governments getting extraordinary powers, but there's this tribal you're with us or against us. 0.99
00:23:04.620 And don't dare check the government view that a lot of people in both sides had it, by the way.
00:23:09.980 Yeah, I think, I think it's true.
00:23:11.900 And I think, you know, I mean, this, I think always happens with protests, but in this case, maybe more than usual, you know, your view on sort of what is lawful protest and when police should step in depends a lot on, on your view of the particular issues that are being protested.
00:23:29.760 So, um, I think also there were, there were people who reasonably, you know, saw how particularly in Ottawa residents and businesses were being affected by the protests and, and saw that any pushback against the government was, was sort of undermining, you know, or, or discounting the, the serious harms that those people were experiencing.
00:23:50.920 And, um, and that's not at all the view, you know, I think, I think police can be just as easily criticized for failing to, you know, to protect those individuals, um, when they clearly needed protection from some of what was going on.
00:24:06.140 But, um, you know, but again, our focus is really on, um, on government action and when we're going to, um, accept that these extraordinary types of, of measures can be taken.
00:24:18.920 Um, and it's not just the, the use of the act, right?
00:24:22.600 It's the particular measures that, that are put in place.
00:24:25.460 So, you know, we have under, under this declaration, we had a situation where banks could basically on their own, you know, of their own volition, um, take a look at your account and decide that they thought you might be someone who was doing something contrary to what the orders said and freeze your assets.
00:24:47.820 Um, there were not a lot of safeguards, um, put up around that fairly extraordinary power.
00:24:52.960 There were also restrictions on the freedom to, to assemble.
00:24:56.860 And although, you know, the commissioner ultimately finds that those were, were narrow and tailored, I think if you look at them and if you're an ordinary Canadian at the time looking at them, the message was, you can't protest right now, period.
00:25:11.180 Um, you know, it's true that the, the, the orders themselves say, you know, you can't engage in a protest that might give rise to a breach of the peace.
00:25:20.220 But I, I, I think I would find it hard at that time, at that point in time to think, can I participate in a protest and feel confident that it won't result in a breach of the peace given, you know, given what else is going on?
00:25:32.940 Um, so I, I do think that there are real concerns about, you know, the, the breadth of some of those orders and, um, and the fact that they were, um, and as a result of, of being done under emergency legislation, they are necessarily, you know, put in place very quickly, uh, without, without the time and deliberation
00:25:54.360 and debate that we normally get when we, um, when we pass legislation in the ordinary way.
00:26:00.200 Cara, when we come back up, I want to ask you your thoughts on whether Canadians actually, you know, support civil liberties or are we transactional in them?
00:26:09.220 Because I, I, I get the sense sometimes that we, we just, uh, support fundamental freedoms if we agree with the issue and don't, if we, you know, we'll get into that when we come back.
00:26:20.700 Quick commercial break.
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00:26:37.100 The Charter of Rights and Freedoms details the rights and freedoms that we enjoy under our constitution and Canadians will tell you that they love the charter.
00:26:48.360 They support the charter, that they love their rights and freedoms.
00:26:50.840 But do we really, or is it more transactional?
00:26:55.520 Um, Cara, in your experience working with the, uh, Civil Liberties Association, I'm sure you guys get anger, angry emails sometimes, uh, for various positions you take, uh, that even when I don't agree with the position you've taken, I can say, okay, I see where they're coming from.
00:27:12.560 They're defending a fundamental freedom.
00:27:14.460 Do, do people like their, their rights and freedoms or do they just like them if they agree with, uh, the issue at hand?
00:27:21.640 So let's say bill 21 in Quebec, it's a hideous piece of legislation in my view, but a lot of people don't like seeing religious symbols, be they, uh, turbans, um, kneecaps, uh, yarmulkes even.
00:27:34.980 And, and, and, and they say, yep, let's get, let's, uh, back that because I don't like those.
00:27:40.660 I think there, there is, you know, some, um, um, situational, I guess, um, um, fans of the, of the charter that are, you know, their, their support for different rights does depend on the, the particular issue that we're talking about.
00:27:57.360 Um, I think there are others that, um, that are more, more principled, I would say.
00:28:03.760 I, I think also a lot of it does, um, I think there's a lot of support for rights, but that people do have different ideas about what those rights mean and what they include.
00:28:15.040 And more, maybe more significantly about, um, you know, because our charter is not, um, and this was, I think, a problem during the, the convoy, frankly.
00:28:25.080 You know, people would just say, well, I have the right to protest.
00:28:29.040 It's right there in the charter, the freedom to peacefully assemble.
00:28:31.780 So if I'm not engaging in violence, then I have this right.
00:28:34.780 The charter also says that all of our rights are subject to, you know, reasonable limits.
00:28:40.180 And for better or for worse, reasonable people can disagree about where those reasonable limits land.
00:28:47.640 Um, and I think that that's where a lot of the debate, you know, gets to.
00:28:51.840 And, and many people, um, take a, a very, a particular view that says, you know, your rights end where mine begin.
00:29:01.640 And I think it's more nuanced than that.
00:29:04.060 I mean, it is true that in, in exercising rights, we have also responsibilities and that there's a need to, to balance.
00:29:11.420 And try to reconcile competing interests and competing rights.
00:29:15.600 But, um, it's not as straightforward as, you know, my rights ending where yours begin.
00:29:22.500 Sometimes, frankly, my rights will be sacrificed for the benefit of yours and, and vice versa.
00:29:28.580 There's, um, there's quite a lot of, of nuance that when, particularly when our courts are looking at rights, um, you know, that they, they engage in and have to sort of think through.
00:29:38.920 So, I think in, in some, in some respects, it's that people just have different, different ideas about where to draw those lines.
00:29:47.120 And, um, and, and for many people, they, they have really firm ideas about that.
00:29:52.560 Then let's talk about the right to protest.
00:29:55.120 Because I, I heard that repeatedly.
00:29:58.600 That the, the, the people who were taking part in the convoy were protesting.
00:30:05.240 And, and therefore, whatever they were doing, as long as they weren't breaking the law, um, was fine.
00:30:12.560 But where, where does the, the right to protest, uh, go too far?
00:30:17.880 I mean, in my view, my answer was, yes, you have the right to protest.
00:30:23.140 That doesn't mean that you have the right to set up a, a permanent campsite, uh, on the street in front of Parliament Hill.
00:30:30.520 Well, that, that, that is not peaceful protest at that point.
00:30:33.600 That's something else.
00:30:34.920 In my view, if they had gone home every day or gone to a hotel, um, left and come back on a daily basis, they could have shown up every day.
00:30:42.520 Because there are protests, not that size, but I've, I've seen that happen in my many years working on Parliament Hill.
00:30:49.780 There were some people who were there for weeks, some for months, some showed up every day that MPs were there.
00:30:55.980 So where do you draw the line?
00:30:59.280 What, what do you think on that right to protest means I can stay here forever?
00:31:03.300 Yeah, I mean, I, I, I, I don't think it means I can stay here forever, at least not stay here forever in a way that prevents other people from, you know, from accessing the space, right?
00:31:14.960 In this case, we're talking about using these huge vehicles that didn't allow for, you know, for, for other traffic to, to travel through.
00:31:22.960 So, um, so there were, I mean, there were certainly, you know, aspects of the protest right from the outset that were contrary to the law.
00:31:32.160 Um, now what, I would still give a pretty broad sort of scope for even, you know, even some activities that, that do, um, do, you know, brush up against legal prohibitions to, to be allowed to continue as part of the freedom to, to peacefully assemble.
00:31:52.320 But that doesn't mean, um, you know, that there, there aren't limits.
00:31:56.700 And I, and I think, um, you know, I can't put a, a, a length of time on it really, um, in the abstract.
00:32:05.860 Um, but certainly I think, you know, the, the, the better scenario for, for what would have happened.
00:32:12.280 And then actually there were questions that the commissioner posed to witnesses during the commission that I, that I thought sort of got at this would have been, you know, the, the protest can continue without the vehicles really, right?
00:32:23.920 The people can be here, they can be expressing their views, pedestrians can, um, you know, can shout their slogans, they can carry signs, they can have their message heard.
00:32:33.980 But, you know, blocking the, the access to, um, to the roads, um, the continuous honking in, in a way that, um, you know, was, was, I think quite damaging for, for people in the area, um, had to stop.
00:32:50.220 I think, I think those are, you know, reasonable restrictions.
00:32:53.800 Um, you know, there, there were similar issues that arose, um, I, I can't believe it's been this long, but, uh, I guess a little less than 10 years ago during the, the Occupy movement, right?
00:33:06.260 We had people who were occupying parks and, you know, basically living there, um, to, to protest things.
00:33:12.980 And, um, eventually in different cities, it got to a point where, you know, people said, this is space that needs to be shared.
00:33:21.260 It's not, it's not being shared.
00:33:23.300 It's not being used in the way that it's supposed to be used.
00:33:25.720 And courts had to sort of look at and assess whether, you know, how, how to reconcile those rights.
00:33:33.660 And in, in most cases, they decided that basically the protests had gone on long enough.
00:33:38.940 Um, you know, I think those protests were probably easier to justify because they were, um, more confined in area, less disruptive to, um, less disruptive to less people.
00:33:51.260 Then, then, then what was going on in Ottawa.
00:33:53.880 And of course, what was also going on at, at the different, uh, border crossings.
00:33:58.220 Um, but, but it's, it's very hard to draw these lines sort of in the abstract and, and the commission's report also talks about this and sort of says, you know, it's not, it's not to say that, uh, disruptive protest is not protected.
00:34:14.020 But there are going to be limits that can be placed on these rights, uh, and defining the precise contours of those limits is a, is a fact specific and context, context specific kind of exercise, which is, I know, not a very satisfying answer.
00:34:30.440 But, but, but I think is actually the best one that can really be given because it, you know, it does depend a lot on, on a whole host of factors that, that can vary in different circumstances.
00:34:41.540 See, but you and I just gave two very different answers that both gave reasonable solutions to allowing the protest to continue without having to go to, you know, an emergencies act or completely disrupting people's lives.
00:34:57.120 Like you said, you know, we're, we have the rights, but there are reasonable limits set on them.
00:35:03.840 And I, at various times, people on both sides, both the government and the, the protest movement, I think were, were unreasonable.
00:35:11.560 What's the, the police did take a lot of, um, criticism in this.
00:35:18.420 The civil liberties association has taken issue with a lot of police actions in various cities, um, federally as well over the years.
00:35:27.120 At what point would it have been acceptable for police to, or how should police have stepped in earlier to avoid going to the act?
00:35:37.380 And interested in hearing that from a civil liberties perspective.
00:35:42.000 Yeah, I think, I mean, you know, I, I actually think, you know, police could have engaged in a public order action like they ultimately did, right?
00:35:51.860 Where they, where they, where they, first of all, give, um, ideally give clear instructions and information to people that says, you know, we are clearing the streets.
00:36:03.080 You need to leave.
00:36:04.440 If you don't leave, you're at risk of being arrested and, um, and sort of lay out all the consequences, always giving people the opportunity to leave.
00:36:13.480 Um, that was one of the issues, you know, during the, the G20 in Toronto that, um, really people were sort of boxed in.
00:36:20.740 So those that wanted to leave when it became clear that things were, were getting bad, didn't have the opportunity to do so.
00:36:26.620 Um, so I, I think police could have done that, you know, actually fairly early in the process, uh, or in the protests, but they could only do it if they felt it was safe to do it.
00:36:39.220 And I don't think they felt it was safe to do it because they did not have the, the boots on the ground that they needed, right?
00:36:45.520 They, that's what we heard during the commission from so many of the law enforcement witnesses that, um, you know, this was going to be given the scale of these protests,
00:36:55.180 given how many people were there, given the, the heavy vehicles and, and the need to clear those in a way that was, you know, safe and didn't put people at risk.
00:37:04.320 Um, they needed a lot more resources than they had and it took the government and the various police services that were involved a long time to, to get their act together and coordinate that.
00:37:16.580 Um, I think, you know, once they had that in place, um, they were, um, they were able to, to execute an action that, that could have been executed much earlier if they'd had those resources, but, but they didn't.
00:37:30.380 And, you know, there are, uh, you know, there are, uh, political reasons why, uh, different services and different levels of government were reluctant to, to give over, um, officers.
00:37:41.960 There were sort of inside police reasons that I don't, you know, still don't fully sort of understand, but just a lot of, um, politics that, that went into, um, those issues that I think prevented the police from,
00:37:58.260 from doing what they, they legally could have done a lot earlier than, than they did.
00:38:05.800 Several of, uh, Justice Rouleau's recommendations call for amendments to the Emergencies Act, including getting rid of the reference to Section 2 of the CSIS Act.
00:38:17.540 Uh, my concern there, although in his report, he does say that this should not be seen as weakening the act and the,
00:38:25.700 the, the guardrails that, you know, uh, should prevent governments from overusing it.
00:38:33.260 Um, but I, I do have that worry that it, it, it could weaken the act if there's not a strict definition in there.
00:38:41.420 What do you want to see when it comes to amendments?
00:38:43.740 What are you, what would you like to see?
00:38:45.080 What are your concerns about how the act's written now?
00:38:48.200 Um, what Justice Rouleau's recommending?
00:38:50.540 I mean, most of the, the things that I think the act, um, should be amended to, to do are, are ways that would, um, sort of enhance or beef up the, the accountability side of things.
00:39:03.520 And Justice Rouleau makes a number of recommendations about that, including, you know, some issues around, um, first of all, giving the commission longer, a longer period of time to do its work if necessary.
00:39:15.980 Um, also making sure that government doesn't really have the option of shielding a lot of what it could have shielded from, from scrutiny, you know?
00:39:25.400 So making sure that, um, cabinet confidence over, uh, the inputs that cabinet reviewed is, is always going to be something that the commission can consider.
00:39:35.240 And it doesn't just depend on sort of the goodwill of the government of the day, waiving that, that confidentiality.
00:39:41.820 Um, I think those are really important recommendations that I hope will be taken up.
00:39:46.540 Um, I'm not convinced that the, the legal thresholds should change.
00:39:51.520 I'm concerned, of course, that they're, that they're being watered down by the sort of interpretation that they've been given, uh, by the commission's report.
00:40:00.940 Um, you know, the, the CSIS Act definition is, I mean, it's old and there were certainly, um, you know, comments made from different witnesses about the need to sort of modernize it.
00:40:14.380 Um, it's hard, it's hard to come up with the words that, you know, capture exactly what you want.
00:40:21.520 To capture and don't capture any of what you don't want to capture.
00:40:25.000 Um, it's a very difficult exercise.
00:40:27.120 So, um, you know, part of the reason that, that I think we, we saw the benefits of tying the definition to the CSIS Act is that it is known to be a high threshold, you know, a hard sort of bar to meet.
00:40:42.940 And that it should be for, for both the CSIS Act and, and what those powers are used for and the Emergencies Act.
00:40:50.460 Um, particularly the, the ability to declare a public order emergency.
00:40:55.060 Um, so I, I think I'm, I'm not convinced that there's a good reason to, um, you know, to change that definition and, and anything that was proposed.
00:41:04.340 I think we'd have to, you know, sort of look at very carefully and try to think through the, the implications of, uh, of exactly what it, you know, what it would mean and what it could look like.
00:41:15.060 Kara Zwiebel, thank you very much for your time.
00:41:17.280 And thank you to the CCLA for all the work that, uh, that you did at the inquiry.
00:41:22.760 Thank you.
00:41:23.280 Thanks for having me.
00:41:24.320 Full Comment is a post-media podcast.
00:41:26.860 I'm Brian Lilly, your host.
00:41:28.180 This episode was produced by Andre Proulx with theme music by Bryce Hall.
00:41:32.380 Kevin Libin is the executive producer.
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00:41:48.500 Until next time, I'm Brian Lilly.