Those hoping the Public Order Emergency Commission’s report on the use of the Emergencies Act would be a silver bullet of truth undoubtedly felt a bit of a gut punch last Friday.
The long-awaited report found that Justin Trudeau’s government was justified in invoking the Emergencies Act to clamp down on the Freedom Convoy just over a year ago.
Despite Commissioner Paul Rouleau’s caveat that a reasonable person might reach a different conclusion than he did, his report defends Trudeau’s use of the act, and most of the tools he gave himself under it.
I’ve long held the view that optimism is a dangerous characteristic when awaiting a judicial (or quasi-judicial, in this case) decision. It’s easy to read evidence and hear testimony in a way that affirms your pre-existing bias and then be surprised when a judge finds the opposite.
Even so, the battle over whether the Emergencies Act was justified came down to whether a threshold that is clearly spelled out in the legislation was met. The government had to be facing a threat to the security of Canada so severe it could not effectively be dealt with by any other existing laws in Canada.
Canadians who watched the weeks of commission hearings last fall heard law enforcement officials testify that the Emergencies Act wasn’t necessary. They heard claims of “violence” reduced to hearsay or vague feelings of violence. They heard the government of Canada build its case based on a technical interpretation of the statute rather than any set of facts supporting the idea that the Freedom Convoy constituted an emergency of any kind, let alone one so dire as to require wartime legislation.
Canadians who followed this closely were particularly blindsided by Rouleau’s report. As a result, there’s been a wave of criticism of Rouleau, much of it accusing him of being biased, corrupt, or partisan.
One of the more pervasive bits of misinformation swirling is that Rouleau was related by marriage to Justin Trudeau. The conclusion hinges on the premise that Rouleau has a brother named Pierre who was married to Trudeau’s aunt Suzette.
Trudeau’s aunt (Pierre Elliott Trudeau’s sister) did marry a Pierre Rouleau, but he has no relation to Paul Rouleau (nor does the latter have a brother named Pierre).
Another claim is that Rouleau is a long-time Liberal donor. There is a Paul Rouleau from Port Colborne, Ont. who appears in Elections Canada’s records as a Liberal donor, but this, as Brian Lilley confirmed, is a different man from the Public Order Emergency Commissioner.
Rouleau the commissioner does have Liberal pedigree: he worked for Liberal leader John Turner and helped select Turner’s short-lived cabinet back in the 1980s. Whether Rouleau votes Liberal today I have no idea, though the most brazen claims of active Liberal ties do not hold up under scrutiny.
These claims may be a convenient way for people to make sense of a report that seems so at odds with the facts and the law, but there is a far easier explanation: it’s a bad report.
Canada is a country in which expecting good judicial decisions almost always leads to let-down, so why should the Public Order Emergency Commission be any different? It’s unnecessary to create a conspiracy theory to explain away a judge taking a deferential approach to a government’s abuse of rights and freedoms.
As Joanna Baron of the Canadian Constitution Foundation wrote, Rouleau’s report “implies an extraordinary amount of deference to assiduously shielded government decision-making.”
Rouleau leaned heavily on the Emergencies Act’s requirement that cabinet believes there to be a national emergency, even in the absence of cabinet ponying up the legal opinion used to justify reaching such a conclusion.
CSIS and law enforcement officials, as well as the thousands of Canadians who visited Ottawa themselves, saw there was no threat to the security of Canada, let alone any of the other constituent parts of a national emergency.
A lawyer for the Public Order Emergency Commission even chided the government for creating a “black box around what has turned out to be a central issue before the hearing,” which is to say the aforementioned legal advice, which Attorney General David Lametti refused to disclose, citing solicitor-client privilege.
At one point, Rouleau asked Lametti if the commission should just “presume good faith,” which he apparently did in his report.
Other holes in Rouleau’s report include his conclusion that existing laws were insufficient to deal with the convoy, despite all police witnesses saying the opposite.
Rouleau’s report carries no civil or criminal weight, but will undoubtedly be used to inform and influence future use of the Emergencies Act, and possible amendments to the act.
It was never going to be the undoing of Trudeau, even if it had been a scathing indictment of his use of the Emergencies Act.
But Canadians need not place it in a context of corruption when the real culprit, yet another deferential judge, is readily on display.
