Published March 6, 2024

Federal government plans to consult widely before any changes to Emergencies Act

A copy of Justice Paul Rouleau's report on the Liberal government's use of the Emergencies Act, is shown in Ottawa, Friday, Feb.17, 2023. The federal government is open to possible changes to the Emergencies Act but says it first wants to consult widely on the law it invoked to quell protests two years ago. THE CANADIAN PRESS/Adrian Wyld

By Jim Bronskill

The federal government is open to possible changes to the Emergencies Act but says it first wants to consult widely on the law it invoked to quell "Freedom Convoy" protests two years ago.

In a final response Wednesday to a commission of inquiry, the Liberal government also outlines steps it is taking to improve the flow of intelligence and protect key transportation corridors.

However, the government plays down any need to adopt many of the commission's suggested changes to policing protocols. 

The Public Order Emergency Commission led by Justice Paul Rouleau made 56 recommendations, with almost two dozen specifically related to the emergencies law itself.

In early February 2022, downtown Ottawa was besieged by protesters, many in large trucks that rolled into town beginning in late January. Initially billed as a demonstration against COVID-19 health restrictions, the gathering attracted people with various grievances against Prime Minister Justin Trudeau and his government. 

Meanwhile, the protests spread and trucks clogged key routes to the United States at Windsor, Ont., and Coutts, Alta.

On Feb. 14, 2022, the government invoked the Emergencies Act. That allowed for temporary measures, including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets and a ban on support for participants. 

It was the first time the law had been used since it replaced the War Measures Act in 1988.

In a Feb. 15 letter to premiers, Trudeau said the federal government believed it had reached a point "where there is a national emergency arising from threats to Canada's security.'' 

In a recent decision, Federal Court Justice Richard Mosley said invoking the Emergencies Act was unreasonable and led to the infringement of constitutional rights. The federal government is appealing the ruling.

However, the Public Order Emergency Commission, which carried out a mandatory review after use of the act, found early last year that the government met the very high legal standard for using the law.

Even so, Rouleau called for an in-depth review of the provisions dealing with public order emergencies.

The federal response says the government will engage provinces, territories, Indigenous partners and civil society on Rouleau's recommendations concerning the Emergencies Act, "including seeking views on potential legislative amendments."

Rouleau found the definition of "threats to the security of Canada” in the Emergencies Act was incorporated from the Canadian Security Intelligence Service Act, the law governing Canada's main spy agency.

"This said, the CSIS Act and the Emergencies Act are different regimes that operate independently from each other," he wrote. "They serve different purposes, involve different actors, and implicate different considerations."

The government indicates it will await the outcome of the ongoing court proceedings over use of the Emergencies Act, among other factors, before deciding if changes are warranted.

Public Safety Minister Dominic LeBlanc told a news conference Wednesday that any change to the definition of threats to security in the Emergencies Act should be done in the context of "a thoughtful, more holistic" review of national security legislation.

A number of Rouleau's recommendations touch directly on other levels of government, LeBlanc added. "Changing the Emergencies Act necessarily has an impact in terms of the relationship between Canada and provinces and territories."

Rouleau recommended that when a government declares a public order emergency, it should be required to turn over to the resulting commission of inquiry all information, advice and recommendations provided to the federal cabinet, cabinet committees or individual ministers.

The Trudeau government says while it did give Rouleau some cabinet information on "an exceptional and voluntary basis," it will be up to a future government to do a "fact-specific public interest balancing analysis" before deciding whether a commission should be granted access to cabinet secrets.

During the Ottawa protest, the usually calm streets around Parliament Hill were beset by blaring horns, diesel fumes, makeshift encampments and even a hot tub and bouncy castle as participants settled in.   

The influx of people, including some with roots in the far-right movement, forced many businesses to close temporarily, and aggravated residents with noise, pollution and harassing behaviour. 

Public anger mounted over a lack of enforcement action by Ottawa police. Officers from other forces eventually arrived to help clear the streets.

In its newly released response, the government suggests existing protocols are adequate for requesting or redeploying police resources in emergency situations.

But it does see other areas for improvement.

The RCMP has been working with federal partners and other police agencies to enhance criminal intelligence collection and sharing, the federal response says.

In addition, the Criminal Intelligence Service Canada, with the RCMP's assistance, is exploring how the Canadian Criminal Intelligence System — the database supporting the criminal intelligence and police community — could be better used to help manage and retain intelligence on serious criminality associated with public order events.

The government also agrees to "consider and explore" a recommendation to ensure its departments and agencies have the authority and responsibility to monitor and report on information from social media, "for appropriate purposes and with appropriate safeguards."

Under the direction of the national security adviser, the Canadian intelligence community has launched an internal review of open-source intelligence activities and is seeking to update policies and develop clear frameworks around online monitoring, including of social media and other complex online platforms, the response adds.

The government notes the national security community is working to improve intelligence collection and distribution through possible changes to key legislation, including the CSIS Act. One aim is to give federal security agencies the legal ability to disclose information about threats to a wider range of recipients.

The government agrees with Rouleau's call to identify critical trade corridors and infrastructure in consultation with provincial, territorial and Indigenous groups. It says a new national strategy for critical infrastructure will be released before the end of the year. 

The Canada Border Services Agency has already made security improvements at 11 ports of entry and updated its border management plans in response to the 2022 blockades.

A working group that includes the Public Safety Canada, Public Services and Procurement Canada and the Privy Council Office, as well as parliamentary partners and law enforcement agencies, is examining policing issues unique to the parliamentary precinct and surrounding area, the response says. 

It reaffirms the federal commitment to continue discussions with the City of Ottawa to transfer a portion of Wellington Street, which runs in front of Parliament Hill, to the federal government. 

The goal is to mark the legal and geographic boundaries of the precinct and clarify security and policing roles and responsibilities, the response adds.

Overall, the government praises the commission report as an important milestone in the process of restoring public confidence and healing the divisions across Canadian society. "The government's actions and commitments outlined in this response represent an important step in achieving this goal."

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