00:01:40.840And the National Anthem was what penetrated from the sporting world into my world,
00:01:46.460and singer Julie Black's little ad lib of one word of the National Anthem.
00:01:52.960She changed a preposition, but it was a rather significant one.
00:01:56.680So we'll talk about that in just a couple of moments too.
00:01:58.960But 2,000 pages, ultimately a finding that the federal government was justified in invoking the Emergencies Act.
00:02:06.860That's what came away on Friday from the Public Order Emergency Commission and Commissioner Paul Rouleau.
00:02:13.560Not a slam dunk, not a complete vindication, but on the core idea of whether the Emergencies Act was justified,
00:02:22.020the commissioner sided with Trudeau, and really on the core ideas of how the Emergencies Act was
00:02:28.360used, the commissioner sided with Trudeau. And there were a couple of little criticisms he made
00:02:33.380that I think were significant, but generally speaking, he supported the bank account freezes,
00:02:38.240he supported the conscription of tow truck drivers, and he supported the overall use of
00:02:43.180the act itself, albeit with the caveat that, in his words, another reasonable person could reach
00:02:48.700a different conclusion. So there are two big takeaways here. Number one is that this is not
00:02:54.580the end of the road as far as Emergencies Act accountability goes. There are still federal
00:02:59.400court challenges, and as we talked about on Friday, there's still the political dimension of
00:03:04.180this. Voters have not yet in any formal way had their say on this chapter of Canada's political
00:03:10.600history. And then there's also what the report really said, and going through with a fine-tooth
00:03:15.600comb, now that we've had a little bit more time to do so, and start extracting what was actually
00:03:20.560said here, what was actually found, and whether it stands up to scrutiny. And for this, we have one
00:03:25.720of the best legal minds in the country, certainly when it comes to matters of liberty, Christine
00:03:30.760Van Gein, the litigation director for the Canadian Constitution Foundation. Christine, I don't even
00:03:36.680want to ask how your long weekend was, because I assume it was in large part consumed by a bulk of
00:03:42.200this 2,000-page report? Yeah, it's 2,000 pages when you include the appendices, so it's not all,
00:03:50.060it's not, you don't have to read every single one of those pages, but yes, I've spent a lot of time
00:03:53.940going over this. It doesn't get better, but you know, this, as you said, is not the final word.
00:04:00.580This is not the end of the fight over the Emergencies Act, because we do have a federal
00:04:05.240court judicial review that we brought separately, independently. This report by Commissioner Rouleau
00:04:12.440was brought by, it was called and convened by the government, funded by the government,
00:04:19.140and this judicial review is completely independent and will hopefully reach a different
00:04:25.940conclusion. So we have a hearing scheduled for that in April. So just on the scope of that
00:04:31.420judicial review let me ask for people that aren't as familiar with the case are you challenging the
00:04:36.680invocation of the act the emergency orders and emergency measures that flowed from the act or
00:04:42.180both in that challenge both so it's sort of uh two things really it's that the emergencies act
00:04:49.200was invoked illegally that the statutory threshold to invoke it was not met and we can talk about
00:04:55.660what that statutory threshold means i have a very different interpretation of that threshold than
00:05:00.580Commissioner Rouleau does, and that my interpretation is more in line with what most legal scholars
00:05:06.640across the country view as a correct interpretation. And the other thing that we're challenging is the
00:05:13.760regulations that were enacted under the Emergencies Act. Those would be the measures that froze bank
00:05:20.900accounts and that created prohibited public assemblies. And we are arguing that those are
00:05:28.560unconstitutional. So sort of two, two, two approaches, two things that we're, we're really
00:05:33.700arguing. So when we talk about the statutory threshold, this was obviously a key part of
00:05:39.240Commissioner Rouleau's report as well. And do I understand from that, that this is not a
00:05:43.400constitutional challenge? It's not about the moral value of the Emergencies Act, it's about whether
00:05:47.580they satisfied that test that is spelled out in the Emergencies Act, and by extension, the CSIS
00:05:53.240act themselves? Yeah, so that's closer to what you would say is the way statutory interpretation
00:05:59.340operates. So it would be an illegal use of the act. That is what we are arguing, that if you
00:06:04.860use this legislation when the threshold is not met, that use is illegal, and that therefore the
00:06:10.180regulations under it are unconstitutional. But the threshold was important to know for a public
00:06:15.740order emergency, it's like the legislation has all these different parts, and they all kind of
00:06:21.860interconnected. That's how legislation usually works. But the important thing for your listeners
00:06:26.200to know is that for the legislation to be invoked, there needs to be a threat to the security of
00:06:34.500Canada. And that is a defined term in the legislation. It's defined through reference
00:06:40.900to another piece of legislation called the CSIS Act. And what's fascinating and a huge problem
00:06:47.720is that CSIS found that under their legislation, there was no threat to the security of person.
00:06:54.180This is, there was no threat to the security of Canada. And if CSIS found that under their
00:07:00.980legislation, there was no threat, and there was no separate threat assessment done, how could
00:07:06.840cabinet reach a different conclusion? It's not reasonable, in our view, for them to reach a
00:07:12.920different conclusion. The thresholds are the same. The definition is the same. It's completely a
00:07:18.640strange interpretation, sort of this Hail Mary, let's see if we can make this argument, this
00:07:24.720novel legal argument and get it to stick. And somehow they convinced Commissioner Rublo of
00:07:31.820this strange interpretation. I know that we've spent a lot of time on the show talking about
00:07:38.240this, but I think it is important. And ultimately, it became increasingly clear near the end of those
00:07:43.600hearings back in October, November, that this was going to come down to a debate about the
00:07:48.180technicalities of the statutes and not about the fact scenario, not about, you know, whether there
00:07:53.480was this previously unrevealed threat that was very explicit. It came down to what cabinet
00:08:00.360believed and what these thresholds were. And when you look at the CSIS Act, which I've had the
00:08:05.500as fortunate of doing a number of times now as I've covered this, it doesn't make any distinction
00:08:10.360between the different applications of it. You know, when it's used by CSIS, there's this threshold,
00:08:15.260and when it's used elsewhere, there's a different threshold. And the Emergencies Act similarly does
00:08:20.120not put a caveat there. It says this is the definition. It's spelled out right there. So
00:08:24.720what was the argument that the commissioner found compelling for why CSIS could find there was no
00:08:31.740threat to the security of Canada, but the cabinet could. It was this notion that different decision
00:08:37.900makers may rely on different inputs. But in our view, the words of the statute mean what they say
00:08:44.420they mean. And for cabinet to reach a different conclusion when, in fact, cabinet was lacking a
00:08:51.880significant amount of information. They did not have a separate threat assessment from CSIS.
00:08:56.620CSIS had concluded there was no national security threat cabinet had not even been briefed on this
00:09:04.000novel legal threshold cabinet had not been fully briefed by Brenda Luckey about the existence of
00:09:11.660additional other laws that could have been relied on to resolve this situation that that the
00:09:19.860emergencies act was not absolutely necessary which by the way is another part of the statutory
00:09:24.340threshold. So cabinet reached this different conclusion, even though they were further
00:09:30.600removed from the situation and had less information than CSIS did. So in our view,
00:09:38.100it is not reasonable for cabinet to have reached a different conclusion. Even if they could rely
00:09:44.400on different inputs, they actually had worse, worse information than CSIS did.
00:09:50.320And I should also point out that even if that threat to the security of Canada is found, there are still additional layers for the Emergencies Act to be justified.
00:10:02.600That threat has to be creating a national emergency, which has its own definition, and it also has to be outside of what existing authorities available under law are capable of dealing with this.
00:10:13.500Now, I know your colleague Joanna Barron had a great piece in The Hub that really spells out some of these legal articulations here from the commissioner's report.
00:10:23.280But the one thing that I found particularly not compelling from Commissioner Rouleau's findings is that he really conflates what police failed to do or didn't do and what bureaucratic infighting and this sort of territorial control between different agencies did.
00:10:40.860and what the act itself says, which is cannot effectively be dealt with under any other law
00:10:47.980of Canada. So there seemed to be this conflation of can't do and aren't doing. Yeah, I mean,
00:10:54.200that word effectively is carrying a lot of weight in this report. Because what essentially, I mean,
00:11:02.520one of my friends, Aaron Woodrick from the McDonnell-Laurier Institute has written in the
00:11:06.660National Post is using this interpretation that, you know, police not doing a good job,
00:11:12.800disorganization, lack of communication. That is just kind of typical of government. That's
00:11:19.200a policing and governmental failure. And incompetence is not the legal threshold for
00:11:26.220using one of the most powerful laws in Canada, a law that allows cabinet to create new criminal
00:11:34.960law by executive order you can't just hand cabinet that power because the police were incompetent
00:11:44.080and look there were a lot of policing failures no one is disputing that we saw that we saw
00:11:49.480in the commission we actually saw it throughout the the the protests that the police were not
00:11:55.220doing a great job uh i'm not a police officer so i i mean i know it's a very difficult job but
00:12:01.160there there's a lot of consensus that the police failed here but that is not the threshold that
00:12:07.760what they needed was more help from other police not this extraordinary sledgehammer that is the
00:12:14.020emergencies act that in fact they didn't even really rely on the tools in the emergencies act
00:12:19.080to resolve the protests they were relied on the criminal code so no one asked for this it wasn't
00:12:27.400necessary. Things were ultimately resolved using existing law, and the threshold of national
00:12:33.880threat to the security of Canada, that threshold was not met. So I have a lot of problems with
00:12:38.680this report, but mercifully, we do get another chance in federal court. And just as a peripheral
00:12:45.620note on that, to my knowledge, there were never any charges laid under the emergency orders,
00:12:50.220were there? Well, under the emergencies orders, certainly there were accounts frozen. What do
00:12:55.920mean by by charge no one was criminally charged specifically using any tool that wasn't already
00:13:01.840in the criminal code i guess is the question well i i don't believe so i believe that the charges
00:13:08.480were for things like mischief and um maybe resisting some resisting arrests uh but certainly
00:13:15.920the power to um freeze bank accounts was used yeah well and that i mean as we've talked about
00:13:21.200in the past didn't need charges and any other recourse or anything like that yeah and that the
00:13:26.480tow trucks ultimately were were could have been used uh there was a lot made about the availability
00:13:32.880of tow trucks and and that all could have been done using uh existing powers as well there was
00:13:37.680the word that joanna baron used in in her piece in the hub that i think is a sadly accurate word
00:13:43.360is deferential and and we've seen throughout a lot of the covid related uh cases that have gone
00:13:49.200before courts, a lot of deference to government, a lot of use of Section 1 of the Charter to say
00:13:55.260that the cessation of rights in Section 2, for example, are subject to these reasonable limits
00:14:01.320or so-called reasonable limits. And in the case of the Emergencies Act, is there a legal ability
00:14:07.840for the government to use this report as a substantive part of its argument, or does it
00:14:14.240kind of exist in a box on its own and can't be brought into a JR as justification?
00:14:19.540No, so this is not a finding of liability.
00:23:26.600exactly what I would call a ringing endorsement for liberty.
00:23:30.900And in Canada, this is going to be a tremendous problem.
00:23:34.200So I go back to the political dimension of this, the political angle, and how important it is to educate Canadians, to continue to talk about this, and to, if I can be so bold, take the wisdom that I tried to put forward in my newsletter last week of never forgetting this emergencies act, never forgetting the last three years.
00:23:53.160We are now in the fourth year of the COVID era, and while most of it is behind us, these
00:28:48.320It is now a preposition that that opening line needed.
00:28:52.060She's very proud of herself. You can see her smirking at the camera there and normally politicizing the national anthem because she's making a political point.0.99
00:29:00.500She's even said in interviews after the fact, quote, I sang the facts, unquote.
00:29:07.320She said to CBC, we are walking, breathing, living, experiencing life on native land, on indigenous land.
00:29:14.300Now, she was in Utah. Now, Utah, of course, was once home to Indigenous nations, like most other parts of North America. But again, it's a weird place to stage this sort of protest because, you know, the Utah people don't actually care about Canadian Indigenous policy, I would suspect.
00:29:31.940But our home on native land, she makes the point and is given accolades by the media here.
00:29:38.460I just want to give you a few examples of the response.
00:31:06.900now I will say that there's a bit of a difference in changing one word that could be mistaken for
00:31:17.320the original word in general and just writing in a whole line that has nothing to do with anything
00:31:22.100so I think lyrically speaking Julie Black wins over Remicio Pereira of the Canadian tenors who
00:31:27.920are now the tenors because they decided that the Canadian part was holding them back. So they got
00:31:32.580rid of Romigio Pereira. They got rid of the Canadian. They're just the tenors now. They've
00:31:37.360added a new one. Again, very talented singers, but this guy ruined his, had his career ruined.
00:31:44.140This guy was canceled. He was kicked out of the band, had his career just decimated, and he's
00:31:49.620never really rebounded because he dared to sing All Lives Matter in the national anthem. And if
00:31:56.180you listen to how he described that this is not a guy who was making an anti-black point this is a
00:32:01.460guy who was saying that we need to love everybody he was making some hippie piece and love point
00:32:05.140and as i said at the time i thought it was stupid you don't grandstand in that way certainly not
00:32:10.240during the national anthem and i say the same thing to julie black but i'd be remiss to not
00:32:15.700point out the utter double standard between what happens when a guy makes a claim like
00:32:21.020Remigio Pereira did and when a woman like Julie Black does and aligns with a cause that is very
00:32:26.880much on vogue right now and we see that the rules are that you can politicize the anthem only if
00:32:33.000your thoughts are right if you are one of the woke set you can do it you can get away with it and you
00:32:38.020know what your career is probably going to be better I was when the Julie Black I interviewed
00:32:43.000Julie Black many years ago believe it or not she was a very lovely woman and when this whole thing
00:32:48.440happened, I was trying to just go through, hey, what are those big songs of hers? I just wanted
00:32:52.340a bit of a primer. And I looked her up on YouTube and on YouTube, like almost the entire, I'm going
00:32:57.620to do it again for you right now, just to make sure I'm not leading you astray here. But if you
00:33:02.700type in Julie Black with the proper spelling, two L's on YouTube, the first hit is a Shopify ad. So
00:33:10.620we go past that one. It's her performance of the national anthem, then a piece from CTV about the
00:33:16.260national anthem and then hey this show this show here is number three well that's good good for
00:33:20.580true north on there we've uh penetrated the the youtube rankings and then a city news piece about
00:33:26.120changing the national anthem uh then an interview she did four years ago with global and a bunch of
00:33:31.840other things that have nothing to do with her music so you actually have to get down like halfway
00:33:37.500down the page to get a julie black song which is to say that she's getting a lot more intrigue
00:33:43.340for her changing of the lyrics to O Canada than she has for her music in a little while. And again,
00:33:49.580that's not an indictment of her music. It's that now we are talking about this person who wanted
00:33:54.660to use her platform to make a point. But if she did this in any other forum, no one would have
00:33:59.280cared. If she just tweeted out, you know what, we really need to talk about Indigenous issues.
00:34:03.880No one would have cared. It would have been another celebrity mouthing off. If she had just1.00
00:34:07.400written a letter to Parliament and said, hey, I know you guys changed the lyrics to the national
00:34:11.460Anthem a few years ago. Clearly you're open to changing the lyrics. I've got a lyrical suggestion
00:34:16.140for you. I'm a songwriter. I'm a Juno winner. You should listen to what I have to say. And they
00:34:20.800would have taken it, looked at it and said, oh, okay, fine. Yeah. Next. So she hijacks a sporting
00:34:27.060event, which again, I don't really care about it. I'm not one of these people that think sporting
00:34:31.280events are these sacred places. I watched the Superbowl and that is the only sporting event
00:34:36.040of the year I watched because I enjoy football, but not enough to watch all the other games every
00:34:39.860year. I'm wearing right now a Talladega shirt because I went to a NASCAR race with my father
00:34:44.700and brother, which I did not because I had a love of NASCAR, but because I had a love for my
00:34:49.100father and brother. So I am not one of these people who's offended because she ruined a
00:34:53.860sporting event. I'm one of these people who believes you should be called out when you have
00:34:59.500this utterly hypocritical approach to when we accept politicization of the national anthem.
00:35:05.720And this is not Justin Trudeau's fault, but I think it is the fault of people like Justin Trudeau who have decided that Canadian symbols do not matter.
00:35:16.600Remember that Justin Trudeau flew the Canadian flag at half-mast for the better part of half a year because he just held in such contempt the idea of Canada, the idea of Canadian pride, the idea of any sort of Canadian nationalism, and didn't care about it.
00:35:32.360It was a lot easier to pander to the woke mob by keeping the national flag and the Canadian flag down indefinitely
00:35:39.780than it was to have a real discussion about issues that matter to people in this country.
00:36:57.220I mean, you just said it was not our land.
00:36:59.020So should we go? And then the person at the theater saying, no, no, no. I mean, it's the theater's land now. And then the person in the audience says, oh, but just, you know, a little bit of our ticket price go to indigenous people. They're like, no, it goes to the movie theater.
00:37:10.360But it was a really great example of how virtue signaling has become the norm in a way that is completely unquestioning.