Use of the Emergency Measures Act | No commitment to modify the definition of threat to national security

(Ottawa) The Trudeau government is not committing, for the moment, to better defining threats to national security in the Emergency Measures Act, as Judge Paul Rouleau recommended a little over a year ago. The Minister of Public Safety, Dominic LeBlanc, must unveil on Wednesday the government’s response to the 56 recommendations of the Commission on the state of emergency.

“There is ongoing litigation regarding this issue and the government will carefully review these decisions, along with other factors, to determine whether changes to the Emergency Measures Act are necessary,” he wrote in the 25-page document.

The government intends to consult the provinces, territories, indigenous representatives and civil society on the 22 recommendations of the Rouleau report which relate specifically to this exceptional legislation which replaced the War Measures Act. The government used it for the first time since its adoption in 1988 to put an end to the “freedom convoy” in February 2022. Thousands of truckers then paralyzed downtown Ottawa for three weeks, unprecedented in the federal capital.

Other trucks also blocked the Ambassador Bridge in Windsor and border crossings elsewhere in the country, including Coutts, Alberta. The demonstrators were opposed to mandatory vaccination for truckers and other health measures imposed during the COVID-19 pandemic.

Judge Rouleau’s report was made public on February 17, 2023. The government had one year to respond. One of its main recommendations was to replace the definition of national security threat that applies to the Canadian Security Intelligence Service (CSIS) with a new definition in the Emergency Measures Act to better understand situations that could pose “a serious risk to public order” today and in the future.

The justification for the historical recourse to Emergency Measures Act was based on CSIS’s definition of a national security threat which includes espionage or sabotage, foreign interference, use of serious violence, or actions aimed at overthrowing the government. The law specifies that this definition does not apply to lawful demonstrations.

Judge Rouleau still concluded that the freedom convoy and the blockades of border crossings elsewhere in the country did indeed constitute a threat to national security, even if there was no serious and widespread violence.

This interpretation was criticized by organizations that defended the protesters such as the Legal Center for Constitutional Freedoms. The Canadian Civil Liberties Association won its case after challenging the use of this sweeping legislation in court with other groups.

Federal Court Judge Richard Mosley therefore came to the opposite conclusion in January. The use of this exceptional legislation was not justified and contravened the Canadian Charter of Rights and Freedoms, according to him. He acknowledged that these protests harmed the Canadian economy, as the government argued, but that it did not constitute “a threat or use of serious violence against people or property.”

“Although these events are all concerning, the evidence does not allow us to conclude that the convoy had created a critical, urgent and temporary situation of national concern and which could not be resolved effectively with any other law of Canada,” he said. concluded.

The government appealed this judgment a little over a week ago. He plans to wait for the legal outcome of this case, which could reach the Supreme Court, before deciding whether he will modify the legislative definition of a threat to national security.

“Future governments must have a full range of tools and instruments at their disposal to be able to respond [aux] anticipated and unforeseen challenges, he underlines in his response to the Rouleau report. However, we hope that in the future, the use of Emergency Measures Act will remain exceptionally rare. »

It also rejects the recommendation to require the Minister of Justice to provide the legal advice he would give to the government if the legislation were invoked again. The government refused to reveal it during the Rouleau commission hearings. He also does not accept the recommendation to lift the confidentiality of Cabinet documents during a future public inquiry even if he had chosen to do so for some of these documents. It will be up to the government in place to decide whether it still uses this law in a new extraordinary situation.