What went wrong with the Public Order Emergency Inquiry?

The Democracy Fund's response to the final report from the Public Order Emergency Commission.

TORONTO: By now, Canadians are generally aware of the final report from the Public Order Emergency Commission in which Commissioner Rouleau finds the government was justified in invoking the Emergency Act against the Freedom Convoy protestors. If, as The Democracy Fund (TDF) counsel did, you spent seven weeks listening to evidence before the commission, you might be asking yourself how this result came about. Isn't there a clear legal test about threats or acts of serious violence against persons or property? If anything, it seemed like the Freedom Convoy was remarkable for its lack of violence, especially for a protest of its size.  Any violence that did occur was minor and atypical of the protest dynamic.  

If you are puzzled about Rouleau’s conclusion, you can take consolation in knowing that you are not alone. Nor are you necessarily part of a "fringe minority" that simply doesn't understand. Rouleau himself said that he did not consider the factual basis for his conclusion to be "overwhelming."  He also stated that "reasonable and informed people" could reach a different conclusion than his.

The explanation for why Rouleau can arrive at the conclusion he did while admitting that others might reasonably disagree is because of the "reasonable grounds" standard. The federal government did not need conclusive proof that there were acts or threats of serious violence for ideological purposes. They only needed to show there were “reasonable grounds” to believe that there were. 

This standard of reasonable grounds is elusive. It is more than a mere possibility but less than a balance of probabilities. It is an “objective standard” that must be based on “credible and compelling” information but not necessarily information that tips the scales of probability. It is the standard that police use when deciding to arrest a person without a warrant, which they have historically done to the detriment of certain minorities in our country. 

If our justice system has historically discriminated against certain groups, it was enabled by the reasonable grounds standard. That’s not because the standard is inherently bad. Rather, it’s because the standard is inherently flexible. When the test for doing something is flexible, it generally flexes in the direction of our beliefs and prejudices or in the direction of what is popular or expedient. It can also flex in accordance with external pressures. Might that have been a factor here?

Consider that the commission’s work had an international dimension insofar as the freedom convoy made headlines around the world.  Our government’s response to the protests was also on display. The public inquiry was not merely about how one country handled a massive protest; it was also about how one of the oldest democracies in the world handled a massive protest. How would it look if Canada exercised emergency powers against its own citizens when there were no grounds to do so? It might look like Canada is not immune from the authoritarianism we criticize in other countries. 

The Emergencies Act was also on trial, in a way, as it had never been invoked.  The Act has many protections that were lacking in the War Measures Act, which it was carefully designed to replace. These protections include parliamentary oversight and the requirement to exercise powers in accordance with the Charter. But would these protections make an actual difference, or would the first exercise of power under the Emergencies Act continue the shameful legacy of the War Measures Act, which allowed Canada to intern Japanese Canadians and to make warrantless arrests of suspected FLQ members?

A different conclusion may have been reached if these and other factors were not present. We will never know. What we do know is that the standard was flexed in favour of a government that used unprecedented emergency powers against its ideological opponents. The use of these powers against Canadians has set a new and dangerous precedent for what constitutes an emergency in a free and democratic society and what actions the government is justified in taking against its own people in the future. The protestors were Canadians who were ignored, mocked, and suppressed by a government that refused to engage with them. The future will tell whether the feelings of division and mistrust driving this protest will be exacerbated by the report and whether the commissioner should have used the flexibility of the reasonable grounds standard to send a different message to this government.

Click here to see all our work in the Public Order Emergency Commission.

About The Democracy Fund:

Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.

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