‘An amazing feat’: Emergencies Act inquiry wraps up six weeks of hearings

'I’m particularly pleased by the fact that these hearings have by and large taken place without a hitch'

By Marie-Danielle Smith in Ottawa

The inquiry probing the Liberal government’s decision to invoke the Emergencies Act in response to last winter’s weeks-long “Freedom Convoy” protests has wrapped up its public fact-finding hearings.

The Public Order Emergency Commission heard from more than 75 witnesses, including Prime Minister Justin Trudeau on Friday, and introduced more than 7,000 documents into evidence over the course of six weeks. 

It was “an amazing feat,” said commissioner Paul Rouleau, who got some cheers from lawyers and spectators in the Ottawa hearing room after he wrapped up the proceedings on Friday evening. 

“I’m particularly pleased by the fact that these hearings have by and large taken place without a hitch,” he said.

“This is a very divisive issue at the root of this whole convoy and what has come out of it, and I think this process, I hope, will be of assistance to people to understand and move forward. It is truly humbling to me to be involved in this.”

Rouleau said he is satisfied that he can now make factual findings and answer the key questions the commission was mandated to explore: Why did the federal government declare the emergency? How did it use its powers? And were those actions appropriate? 

“These are questions that, as I said at the outset, the public wants answered,” Rouleau said. “I’m confident that I am now well-positioned to provide those answers.”

The commission faced extraordinary time pressures, with a report to Parliament due by next February, less than a year after the events the inquiry has been tasked with evaluating. 

Lawyers for parties to the commission, including governments, police forces, protesters and civil society organizations, presented brief summaries of their closing arguments on Friday, with more thorough written arguments to be filed later on. 

A lawyer for the federal government said it’s clear after six weeks of testimony that there were serious threats of violence by demonstrators, that blockades posed threats to the economic security of Canada and that there were reasonable grounds to declare a national emergency. 

But not all of the parties to the inquiry agreed, with lawyers for Alberta and Saskatchewan saying provincial governments were not consulted enough on the special powers. 

A lawyer for some of the protest organizers said the act constituted state violence. 

“The sad irony is that the protest in Ottawa was fundamentally about government overreach. Canadians felt that the current government had gone too far with the COVID-19 mandates,” a lawyer for Freedom Corp. said. “The government’s response to the protest by invoking the Emergencies Act was a further reach of power over people instead of power by the people.” 

The specific legal advice that Trudeau and his cabinet received when making the decision has been withheld under solicitor-client privilege.

But Trudeau noted several times during his testimony that he waived cabinet privileges over many sensitive documents and other records to allow Canadians to see some of what the government was learning during the convoy.

All things considered, the look behind the curtain was “virtually unprecedented,” Rouleau said. 

Still, Cara Zwibel, a lawyer for the Canadian Civil Liberties Association, argued that the use of the act was inappropriate, and a “creative and privileged legal opinion” from the government isn’t enough to conclude that the legal threshold was met. 

Zwibel argued that the act was ultimately a way for the government to be seen to be doing something about the protests, which had gridlocked downtown Ottawa for weeks and halted trade at several Canada-U.S. border crossings.

“Instead of establishing clear and appropriate lines of communication, having frank discussions and putting instructions about strategic priorities to police in writing, the government gave law enforcement the biggest and most public nudge it could,” she said.

“It invoked the Emergencies Act and handed law enforcement across the country sweeping and unnecessary new tools and a clear political mandate to use them.”

With many witnesses pointing fingers at law enforcement for failing to respond to the blockades earlier, police lawyers argued that it was impossible to know how the demonstrations would unfold in advance, and the challenges they presented were complicated.

A lawyer for former Ottawa police chief Peter Sloly, who was heavily criticized by other police leaders during the inquiry, said the Ottawa Police Service lacked the resources to resolve the occupation and a lack of confidence in Sloly was “unjustified.” 

“Even with the benefit of hindsight, it is not possible to find that police services and intelligence agencies should have known this would become an extended occupation,” Tom Curry said. 

Curry argued that Sloly was a “selfless leader” who “had the weight of the city and the nation on his shoulders.”

The commission will hear analysis from expert witnesses next week. 

Paul Champ, a lawyer who represented Ottawa residents and businesses affected by the protests, said the way the public hearings unfolded demonstrated “the strength of our democracy.” The fact that protesters took part, too, showed that they still had trust in public institutions, which “says a lot about the strength of Canada.”

Champ said the commission’s body of evidence and its findings will be studied for years to come for insights on how government and police operate. “It was quite amazing.”

This report by The Canadian Press was first published Nov. 25, 2022. 

Banner image via The Canadian Press

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