Juno News - February 23, 2023


Did Trudeau win the public inquiry？ (ft. Christine Van Geyn)


Episode Stats

Length

16 minutes

Words per Minute

166.07242

Word Count

2,717

Sentence Count

137


Summary


Transcript

00:00:00.000 2,000 pages, ultimately a finding that the federal government was justified in invoking
00:00:14.840 the Emergencies Act. That's what came away on Friday from the Public Order Emergency
00:00:20.280 Commission and Commissioner Paul Rouleau. Not a slam dunk, not a complete vindication,
00:00:26.300 but on the core idea of whether the Emergencies Act was justified, the Commissioner sided with
00:00:32.460 Trudeau, and really on the core ideas of how the Emergencies Act was used, the Commissioner sided
00:00:39.520 with Trudeau. And there were a couple of little criticisms he made that I think were significant,
00:00:44.600 but generally speaking, he supported the bank account freezes, he supported the conscription
00:00:48.880 of tow truck drivers, and he supported the overall use of the act itself, albeit with the caveat that
00:00:54.900 in his words, another reasonable person could reach a different conclusion. So there are two
00:01:00.820 big takeaways here. Number one is that this is not the end of the road as far as Emergencies Act
00:01:06.160 accountability goes. There are still federal court challenges, and as we talked about on Friday,
00:01:11.780 there's still the political dimension of this. Voters have not yet in any formal way
00:01:15.880 had their say on this chapter of Canada's political history. And then there's also what the report really
00:01:22.740 said, and going through with a fine tooth comb, now that we've had a little bit more time to do so,
00:01:27.640 and start extracting what was actually said here, what was actually found, and whether it stands up
00:01:33.080 to scrutiny. And for this, we have one of the best legal minds in the country, certainly when it comes
00:01:38.420 to matters of liberty, Christine Van Gein, the litigation director for the Canadian Constitution
00:01:43.860 Foundation. Christine, I don't even want to ask how your long weekend was, because I assume it was
00:01:48.380 in large part consumed by a bulk of this 2,000 page report.
00:01:53.280 Yeah, it's 2,000 pages when you include the appendices. So it's not all, it's not, you don't
00:02:00.040 have to read every single one of those pages. But yes, I've spent a lot of time going over this.
00:02:04.540 It doesn't get better. But you know, this, as you said, is not the final word. This is not the end of
00:02:10.740 the fight over the Emergencies Act, because we do have a federal court judicial review that we brought
00:02:17.260 separately, independently. This report by Commissioner Rouleau was brought by, it was
00:02:24.580 called and convened by the government, funded by the government. And this judicial review is
00:02:30.340 completely independent, and will, will hopefully reach a different conclusion. So we have a hearing
00:02:36.760 scheduled out for that in April. So just on the scope of that judicial review, let me ask for people
00:02:43.040 that aren't as familiar with the case. Are you challenging the invocation of the Act, the emergency
00:02:48.240 orders and emergency measures that flowed from the Act or both in that challenge?
00:02:52.640 It's both. So it's sort of two things, really. It's that the Emergencies Act was invoked illegally,
00:03:00.360 that the statutory threshold to invoke it was not met. And we can talk about what that statutory
00:03:05.740 threshold means. I have a very different interpretation of that threshold than Commissioner Rouleau does.
00:03:11.040 And that my interpretation is more in line with what most legal scholars across the country view as a
00:03:18.700 correct interpretation. And the other thing that we're challenging is the regulations that were enacted
00:03:25.140 under the Emergencies Act. Those would be the measures that froze bank accounts and that created
00:03:31.520 prohibited public assemblies. And we are arguing that those are unconstitutional. So sort of two
00:03:39.920 two approaches, two things that we're really arguing.
00:03:43.880 So when we talk about the statutory threshold, this was obviously a key part of Commissioner
00:03:48.840 Rouleau's report as well. And do I understand from that that this is not a constitutional challenge?
00:03:53.880 It's not about the moral value of the Emergencies Act. It's about whether they satisfied that test that
00:03:58.920 is spelled out in the Emergencies Act and by extension, the CSIS Act themselves?
00:04:03.200 Yeah, so that's closer to what you would say is the way statutory interpretation operates. So it would
00:04:10.060 be an illegal use of the Act. That is what we are arguing that if you use this legislation when the
00:04:16.100 threshold is not met, the use is illegal, and that therefore the regulations under it are
00:04:20.700 unconstitutional. But the threshold was important to know for a public order emergency, there's like
00:04:26.840 the legislation has all these different parts, and they all kind of are interconnected. That's how
00:04:32.260 legislation usually works. But the important thing for your listeners to know is that for the legislation
00:04:39.460 to be invoked, there needs to be a threat to the security of Canada. And that is a defined term in the
00:04:46.960 legislation. It's defined through reference to another piece of legislation called the CSIS Act.
00:04:52.940 And what's fascinating and a huge problem is that CSIS found that under their legislation,
00:05:00.280 there was no threat to the security of person. This is, there was no threat to the security of
00:05:07.160 Canada. And if CSIS found that under their legislation, there was no threat, and there was
00:05:12.700 no separate threat assessment done, how could cabinet reach a different conclusion? It's not reasonable in
00:05:20.640 our view, for them to reach a different conclusion. The thresholds are the same, the definition is the
00:05:25.320 same. It's completely a strange interpretation, sort of this Hail Mary, let's see if we can make this
00:05:32.960 argument, this novel legal argument and get it to stick. And somehow, they convinced Commissioner
00:05:39.680 Rouleau of this strange interpretation.
00:05:42.820 Yeah, and I know that we've spent a lot of time on the show talking about this, but I think it is
00:05:48.480 important. And ultimately, it became increasingly clear near the end of those hearings back in October,
00:05:54.460 November, that this was going to come down to a debate about the technicalities of the statutes,
00:05:59.500 and not about the fact scenario, not about, you know, whether there was this previously unrevealed
00:06:05.000 threat that was very explicit. It came down to what cabinet believed and what these thresholds were.
00:06:11.520 And when you look at the CSIS Act, which I've had the misfortune of doing a number of times now as
00:06:16.700 I've covered this, it doesn't make any distinction between the different applications of it. You know,
00:06:21.960 when it's used by CSIS, there's this threshold, and when it's used elsewhere, there's a different
00:06:26.800 threshold. And the Emergencies Act, similarly, does not put a caveat there. It says, this is the
00:06:31.740 definition. It's spelled out right there. So what was the argument that the commissioner found
00:06:37.740 compelling for why CSIS could find there was no threat to the security of Canada, but the cabinet
00:06:43.320 could? It was this notion that different decision makers may rely on different inputs. But in our
00:06:50.260 view, the words of the statute mean what they say they mean. And for cabinet to reach a different
00:06:56.880 conclusion, when, in fact, cabinet was lacking a significant amount of information, they did not
00:07:03.080 have a separate threat assessment from CSIS. CSIS had concluded there was no national security
00:07:09.840 threat. Cabinet had not even been briefed on this novel legal threshold. Cabinet had not been fully
00:07:17.200 briefed by Brenda Luckey about the existence of additional other laws that could have been relied on
00:07:26.300 to resolve this situation, that that the Emergencies Act was not absolutely necessary, which by the way, is
00:07:32.140 another part of the statutory threshold. So cabinet reached this different conclusion, even though they were
00:07:39.460 further removed from the situation, and had less information than than CSIS did. So in our view, it is not
00:07:48.340 reasonable for cabinet to have reached a different conclusion, even if they could rely on different inputs, they
00:07:54.880 actually had worse, worse, worse information than CSIS did.
00:08:01.000 And I should also point out that even if that threat to the security of Canada is found, there are still additional
00:08:08.540 layers for the Emergencies Act to be justified, that threat has to be creating a national emergency, which has its own
00:08:15.600 definition. And it also has to be outside of what existing authorities available under law are capable of dealing with this. Now, I
00:08:23.500 know your colleague Joanna Barron had a great piece in The Hub that really spells out some of the these legal
00:08:29.620 articulations here from the Commissioner's report. But the one thing that I found particularly not compelling from
00:08:36.860 Commissioner Rouleau's findings is that he he really conflates what police failed to do or didn't do, and what
00:08:44.380 bureaucratic infighting and, you know, this sort of territorial control between different agencies did, and what the act itself
00:08:51.620 says, which is cannot effectively be dealt with under any other law of Canada. So there seemed to be this this conflation
00:08:58.620 of can't do and aren't doing.
00:09:00.620 Yeah, I mean, that word effectively is carrying a lot of weight in this report. Because what essentially, I mean, one of my friends,
00:09:09.620 Aaron Woodrick from the McDonnell Laurier Institute has written in the National Post is using this interpretation that, you
00:09:18.620 know, police not doing a good job disorganization, lack of communication, that is just kind of typical of government, that's, that's a
00:09:27.620 policing and governmental failure. And incompetence is not the legal threshold for using one of the most powerful
00:09:37.620 laws in Canada, a law that allows cabinet to create new criminal law by executive order, you can't just hand cabinet
00:09:48.620 that power, because the police were incompetent. And look, there were a lot of policing failures, no one is disputing
00:09:56.620 that we saw that we saw in the commission, we actually saw it throughout the the the protests
00:10:03.620 that the police were not doing a great job. I'm not a police officer. So I mean, I know it's a very difficult
00:10:09.620 job. But there, there's a lot of consensus that the police failed here. But that is not the threshold
00:10:16.620 that what they needed was more help from other police, not this extraordinary sledgehammer that is the
00:10:22.620 emergencies act, that in fact, they didn't even really rely on the tools in the emergencies act to
00:10:27.620 resolve the protests. They were relied on the criminal code. So no one asked for this. It wasn't
00:10:35.620 necessary. Things were ultimately resolved using existing law. And the threshold of national threat to the
00:10:43.620 security of Canada, that threshold was not met. So I have a lot of problems with this report that mercifully, we
00:10:49.620 do get another chance in federal court.
00:10:52.620 And just as a peripheral note on that, to my knowledge, there were never any charges laid under the emergency
00:10:58.620 orders, were there?
00:11:00.620 Well, under the emergencies orders, certainly there were accounts frozen. What do you mean by charges?
00:11:06.620 No one was criminally charged specifically using any tool that wasn't already in the criminal code, I guess is the question.
00:11:12.620 Well, I don't believe so. I believe that the charges were for things like mischief and maybe resisting
00:11:21.620 some resisting arrests. But certainly the power to freeze bank accounts was used.
00:11:27.620 Yeah. Well, and that, I mean, as we've talked about in the past, didn't need charges and any other
00:11:32.620 recourse or anything like that. Yeah.
00:11:34.620 And that the tow trucks ultimately were, could have been used. There was a lot made about the
00:11:40.620 availability of tow trucks and that all could have been done using existing powers as well.
00:11:45.620 The word that Joanna Barron used in her piece in the hub that I think is a sadly accurate word is deferential.
00:11:52.620 And we've seen throughout a lot of the COVID related cases that have gone before courts, a lot
00:11:59.620 of deference to government, a lot of, you know, use of section one of the charter to say that, you
00:12:04.620 know, the cessation of rights, you know, in section two, for example, are subject to these reasonable
00:12:09.620 limits or so-called reasonable limits. And in the case of the Emergencies Act, is there a legal ability
00:12:16.620 ability for the government to use this report as a substantive part of its argument, or does it kind
00:12:23.620 of exist in a box on its own and can't be brought into a JR as justification?
00:12:28.620 No. So this is not a finding of liability. This has no legal weight. I mean, it certainly has political
00:12:34.620 weights, but I would encourage the prime minister, if he popped any champagne, to put the cork back in
00:12:40.620 because we're coming in federal court. And we are using a lot of the evidence that was, that came up in the
00:12:45.620 inquiry. So that's one way that the inquiry is relevant to the federal judicial review. There was, there's
00:12:54.620 a lot of evidence is being incorporated into the JR.
00:12:59.620 But the government can't just table this report and say, listen, it was very reasonable. They've already
00:13:04.620 found it out here.
00:13:06.620 No, and they can't bring new evidence at this point anyway.
00:13:10.620 So explain to me where you think the strongest argument is in critiquing the Emergencies Act. Do you
00:13:18.620 think it is on that idea that the threshold wasn't met, there was no emergency, it's, it's, and you
00:13:24.620 know, we don't even need to get into the orders because the orders were illegal on that basis alone?
00:13:29.620 Yeah, so I think that my, one of the big focuses that we have in our material, we actually do spend
00:13:36.620 a lot of time on, on the orders, because the orders are a big problem, right? The notion that the
00:13:41.620 government can seize your bank accounts because you are involved in a protest that they disagree
00:13:47.620 with politically. That's a huge problem. And anyone who supports that type of conduct, I think you need
00:13:52.620 to ask yourself how you would feel about it if it happened to a protest that you support from a
00:13:59.620 prime minister who you don't support. Because that's, that's really what's at stake here. This
00:14:05.620 is a huge tool that gives the government a tremendous power to use against protests that they disagree
00:14:13.620 with in the future. But yes, I think that the main, the big thing that we're going to be arguing in
00:14:19.620 federal court relates to the threshold, and whether the threshold was met, whether existing legal tools
00:14:26.620 would have been sufficient to resolve the protest, we think that they would have been. And the question
00:14:32.620 of what the legal threshold is, which is threat to the security of Canada, as defined in the CSIS Act,
00:14:38.620 not as defined in the subjective opinion of this prime minister, and then examining the constitutionality
00:14:45.620 of the measures enacted under those, under the emergency declaration of emergency, once that's been
00:14:52.620 found to have been illegally invoked.
00:14:55.620 And what's the timeline for that case? What's the the next key date or key step or date in that?
00:15:01.620 So we filed our factum last week. The government, I think, is trying to bring some new evidence from the inquiry,
00:15:08.620 but we are resisting that. And there's a hearing scheduled for the first week of April. So I'm going
00:15:14.620 to be in in Ottawa, looking forward to heading back after those, those weeks I spent there in November,
00:15:20.620 I miss it already. So I'm going to be back and I'll be live streaming, following the hearing to explain
00:15:26.620 what happened every day. So if you guys go on YouTube and subscribe to the Canadian Constitution
00:15:31.620 Foundation's YouTube channel, you can watch my daily summaries of the hearing that will take place
00:15:37.620 over three days in Ottawa.
00:15:39.620 I dare you to say under oath that you miss Ottawa. I don't think anyone could ever do such a thing.
00:15:43.620 I'm not going to be doing that.
00:15:45.620 Yeah, exactly. Is there a trial date set or a time you're anticipating it being?
00:15:50.620 Yeah, so it's it's the hearing date is April. Let me check my calendar. April 3rd, 4th and 5th.
00:15:57.620 Now that is subject to change. These things can change. But that's currently when I'm planning on being in Ottawa.
00:16:04.620 All right. Well, we'll look forward to that. Christine Van Gein from the Canadian Constitution Foundation.
00:16:09.620 Always a pleasure and keep up the great work.
00:16:11.620 It was great chatting with you, Andrew.
00:16:13.620 Thanks for listening to The Andrew Lawton Show. Support the program by donating to True North at www.tnc.news.