Michael Kempa: Using the Emergencies Act was necessary, if regrettable

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Head of the Canadian Security and Intelligence Service (CSIS) David Vigneault’s testimony on Monday has finally elevated the Public Order Emergency Commission above weeks of squabbling discourse about alleged personal conflicts, failings, and vendettas, to an adult conversation focused on policies and powers.

Over a softly spoken critical 90-plus seconds within his hours of testimony, Vigneault made clear that even though the Freedom Convoy in its totality did not for CSIS’ purposes constitute a “threat to the security of Canada” as is strictly defined in Section 2 of the 1985 CSIS Act, he recommended the Trudeau government invoke the Emergencies Act. As eyebrows were raised around the room, there were some audible gasps when Vigneault went on to say that this extraordinary move was consistent with his reading of the letter of both the Emergencies Act and the CSIS Act to which it refers.

This has been the matter of high-decibel legal debate for many weeks, where on the one hand civil liberties advocates and lawyers for the Freedom Convoy have argued that the government may not declare an emergency unless the precise circumstances defining a threat to the security of Canada in the CSIS Act (to which the EA refers) are observed. Such threats involve either highly organized and coordinated espionage, sabotage or violence campaigns that are purposefully directed to undermine the stability of the Canadian state or achieve a non-democratic political purpose.

On the other hand, to this point, key civil servants, including Jody Thomas, the head national security adviser to Prime Minister Justin Trudeau, and Clerk of the Privy Council Janice Charette, the highest ranking bureaucrat in Ottawa, have begun arguing that these CSIS Act-era criteria are simply too out-of-date to reflect modern threats to security and the contemporary elements of a national emergency. Through their testimony, it began to appear that the government was pinning its hopes on the need to extend the criteria of the CSIS and Emergencies acts through a contemporary lens. While the Emergencies Act could doubtless do with an update along these lines, lawyers representing civil liberties groups and the Freedom Convoy understandably likened this to moving the goalposts after the government had taken its kick.

Vigneault’s position was different and more helpful to sorting out our way forward. He has correctly argued that invocation of the act is indeed tethered to the themes of the old CSIS Act, but added that the government has a lower bar and greater latitude than CSIS to determine if a national emergency exists. Vigneault pointed out that if the issues of concern and the triggering bar was at the same level for both CSIS and the federal government, this would put CSIS in the position of being the final decider of when and whether the Emergencies Act could ever be used. Vigneault is right to say that this would not be an appropriate power for an unelected body — which is in no way aligned with the overall spirit and purposes of either the Emergencies Act or the CSIS Act.

To this, I would add that the unintended consequence of putting the bar at the same level for both CSIS and the government — effectively putting CSIS in the decision-making driver’s seat — would be to place elected government in the too comfortable position of being able to hide behind CSIS on matters of great controversy and national importance: in essence ducking the hardest and most divisive political decisions we elect them to make and be accountable for.

If these themes sound familiar, they should: this is precisely the situation surrounding responsibility for police organizations under the banner of “operational independence.” For 50 years, Canadian political leadership of all partisan stripes has denied any responsibility for the policing of political protest and social unrest under the guise that policing operations are a purely technical matter that are simply none of the business of civilian oversight bodies and political representatives.

Just as Pierre Elliott Trudeau said, “ask the RCMP” in the context of the Macdonald Commission’s interrogation of the domestic political espionage once undertaken by the Mounties in the name of “intelligence,” Doug Ford has said, “ask the OPP and Ottawa police” in the context of the Rouleau Commission’s interrogation of the conjoined political and security management of a national crisis of faith in state, medical and scientific authority. We should be grateful that Justin Trudeau cannot simply say, “ask CSIS” when it comes to his government’s equally politically weighted decision to invoke the Emergencies Act.

Because the Trudeau government was on solid legal footing, however, does not necessarily mean that the decision taken to invoke the Emergencies Act was the right one. Vigneault’s testimony helps the government’s case, but Trudeau and company still have some explaining to do.

As we move into the last days of testimony, and we hear from key members of the federal cabinet and the prime minister himself, it will be helpful to think of the Emergencies Act as a giant empty folder: each time there is an emergency, the government weighs whether to pull that huge folder off the shelf, and then, even more importantly, must decide what laws and powers it thinks would be helpful to slide into it to address the circumstances. In the present case, the government decided to declare red zones banning protests around the parliamentary precinct in downtown Ottawa and critical infrastructure including border crossings across Canada, to compel tow truck drivers to serve the government, and to freeze the assets of protesters who refused to leave protest red zones after being warned.

To answer whether the current invocation of the act was a good decision in addition to being a strictly legal one, the government must explain precisely why the powers they chose to slide into the Emergencies Act folder were the right ones for the circumstances. To do so, it would be helpful for the government to point to specific failings in municipal and provincial policing and its governance, missed opportunities at the level of provincial responses, and shortcomings in the intelligence passed along to them that their chosen powers were intended to help address.

In turn, the commission will concern itself not only with judging the invocation of the act in totality, but also on the quality of the restraint the government showed in mobilizing specific powers with suitable intended purposes. The goal of any such exercise being, of course, to inform any future declaration of a national emergency.

Based on the nuanced testimony of David Vigneault on Monday, I can safely end by predicting that the commission will deem that the invocation of the Emergencies Act either just sneaks past the threshold or at least very closely bumps up against it. It will simply not be the slam-dunk that partisans on either side are looking for to support their equally absurd resting positions that Trudeau is either genius or tyrant. The real story of this commission is the revelation that the Emergencies Act is an imperfect tool in need of reform and a great deal of earlier support: essentially a massive folder sitting high on a shelf that is otherwise dangerously bare.

I am left with repeating my position from February 2022: Using the Emergencies Act was a legal but regrettable necessity this time around, given the extraordinary, outrageous and embarrassing gaps in our ordinary municipal and provincial non-emergency powers and civil institutions that need to be filled if we are to be able to democratically manage the era of division and protest at our feet.

Michael Kempa is an associate professor of criminology at the University of Ottawa. His book on the Canadian state’s response to the freedom convoy will appear via Cormorant publishing in mid-2023. @michaelkempa1