The Commission on the State of Emergency, a public inquiry commission set up by Prime Minister Trudeau on April 25, was tasked with examining the circumstances that led the government to invoke the Emergency Measures Act and the measures taken to deal with the crisis following the illegal occupation of downtown Ottawa, between January 29 and February 20, 2022, by a convoy of truckers. Under the chairmanship of Paul S. Rouleau, it is currently continuing its work and must submit its report to Parliament by February 20, 2023.
Last Wednesday, the Commission heard testimony from the Minister of Justice and Attorney General of Canada, David Lametti. If I have understood correctly, the government is being criticized for having resorted to Emergency Measures Act or, again, of being unable to justify the state of emergency because of the absence of threats to “national security”. For his part, Minister Lametti affirmed “that the government was entirely within its right to invoke the state of emergency”. What should we think of it?
Emergency measures
Adopted in 1988 to replace the War Measures Act, the Emergency Measures Act was invoked on February 14. To say that the Government of Canada was reluctant to declare a state of emergency is an understatement. First, it is clear that a measure limiting rights and freedoms is necessarily very unpopular. And that is without even recalling the police abuses that resulted from the imposition of the War Measures Act during the crisis of October 1970, which are always fresh in mind. Then the Emergency Measures Act provides that the government must cause an investigation to be carried out a posteriori into the circumstances which gave rise to the declaration of emergency. Hence this Commission.
It seems to me at least paradoxical that, during Minister Lametti’s testimony, the discussion focused almost essentially on the question of “national security” and not on the question of “national crisis” (although defined in paragraph 3(a). ) of the Emergency Measures Act).
But beyond the legislative interpretation that could be made, one fact remains: the Government of Canada had a responsibility to ensure that the measures taken to stem the crisis were in accordance with the Constitution and the State of right.
As the European Commission for Democracy and Law (Venice Commission) recalled in a report published on October 8, 2020: “Even when an emergency situation is real, the principle of the rule of law must prevail. Similarly, the Raoul Wallenberg Institute stated in a recent publication on the rule of law that: “When a representative of the state exercises his power, he must have the authority to do so. »
In an article I published in The Press January 8, 20211I specifically called on the Government of Canada and Prime Minister Trudeau to invoke the Emergency Measures Act in order to align the measures taken by governments with the Constitution and the rule of law. By declaring a state of emergency on February 14, 2022, the Government of Canada has shown courage, authority and respect.
In fact, far from infringing on the rights and freedoms of Canadians, the declaration of emergency has rather served to preserve them by ensuring that the measures are taken in accordance with the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. . In fact, the use of Emergency Measures Act was the only way to act in accordance with the Constitution and the rule of law on which Canadian democracy is based.
* A specialist in police law, Alain-Robert Nadeau is notably the author of Federal police law and of Quebec police lawthe latter being published annually.