Emergencies Act inquiry: Commissioner warns against ‘adversarial’ proceedings

Click to play video: 'Public inquiry begins into Ottawa’s use of Emergencies Act during convoy protests'
Public inquiry begins into Ottawa’s use of Emergencies Act during convoy protests
WATCH: Public inquiry begins into Ottawa's use of Emergencies Act during convoy protests – Oct 13, 2022

The public hearings for the inquiry into the government’s decision to invoke the Emergencies Act started on Thursday, painting a picture for Canadians of the plan for the weeks ahead — and of the many disagreements that are likely to play out.

In his opening remarks, Justice Paul Rouleau, chair of the Public Order Emergency Commission,  laid out the terms of engagement for those participating in the public hearings over the next six weeks.

“This is not a trial. It’s an inquiry,” Rouleau said.

“I expect everyone will work cooperatively to ensure that the facts and information necessary for the public to understand what happened and why it happened will be elicited.”

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The commission is required by law as a result of the invocation of the Emergencies Act. It is tasked with looking into the government’s justification for declaring the public order emergency earlier this year, including the basis for that choice, the circumstances that led to it, and the “appropriateness and effectiveness” of the measures they enacted, according to the commission’s website.

Over the course of the inquiry, the commission will look at things like the evolution of the convoy, the impact of funding and disinformation, the economic impact on Canada of the convoy blockades, and the efforts of police and other responders to deal with the blockades both prior to and after the declaration.

Here’s what the first day of hearings tells us about what we can expect from the inquiry going forward.

What key debates can we expect?

The overall question the commission will seek to answer is whether the use of the Emergencies Act was justified. With various parties bringing a range of perspectives to the table, Rouleau said he’s prepared for fireworks.

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“While this is not an adversarial proceeding, I recognize that different points of view will be forcefully advanced,” he said.

“This is to be expected and will help ensure that a clear picture of the events is presented and the decisions made or not made by key actors are fully analyzed.”

However, Rouleau warned that disagreements must “at all times” be respectful — and said he will “actively control” the proceedings.

Click to play video: 'Federal Emergencies Act inquiry not a trial, commission chair says'
Federal Emergencies Act inquiry not a trial, commission chair says

A number of different parties have been granted standing in the inquiry, including the Canadian Civil Liberties Association, a group representing protest organizers titled “Freedom Corp,” various police services, and provincial governments, among others.

On Tuesday, these parties each laid out their varied perspectives — and battle lines were drawn.

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“It is our view that there was no justification whatsoever to invoke the Emergencies Act,” said Brendan Miller, counsel to the “Freedom Corp” group that represents convoy organizers, speaking at Thursday’s inquiry.

The governments of Alberta and Saskatchewan agreed with Miller’s position.

“None of the powers that were created under the federal Emergencies Act were necessary. Nor were any of them used in Alberta to resolve the Coutts blockade,” said Mandy England, speaking as counsel for the Alberta government, in reference to the blockade that clogged the border crossing in Coutts, Alta.

Others have firmly spoken in support of the Act’s invocation. The counsel for the Ottawa Police Service, for example, called the occupation “dangerous” and “volatile.”

“This was an unprecedented situation, and it required an unprecedented response by the Ottawa Police Service, along with several thousand other police officers from across the country,” the police service’s lawyer David Migicovsky said.

Counsel for Peter Sloly, who resigned as Ottawa police chief during the protest amid community outcry in response to his handling of the convoy, echoed his former police service’s position.

“The events in Ottawa represented an unprecedented threat to national security, posed as they were by the illegal occupation,” Sloly’s counsel said.

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Governments can invoke the Emergencies Act in response to a variety of emergency situations, but the invocation earlier this year was the first time the legislation has been used since it was created.

Prime Minister Justin Trudeau and federal ministers have characterized the convoy’s blockades of downtown Ottawa and border crossings as a “Public Order Emergency,” which is defined in the legislation as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”

Ottawa residents still 'traumatized,' lawyer says

Speaking Thursday, Trudeau said the Emergencies Act was “necessary to restore order to … Ottawa and to parts of the country that were under real challenges.”

People protesting COVID-19 public health measures descended on downtown Ottawa in February, as well as multiple border crossings, and dug in for weeks. City streets in Ottawa were snarled and businesses were forced to shut their doors as residents were subjected to non-stop honking.

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Click to play video: 'Civil liberties group says feds’ use of Emergencies Act was ‘unlawful’'
Civil liberties group says feds’ use of Emergencies Act was ‘unlawful’

Police said they also received hundreds of reports of abusive behaviour during that period, including harassment of those wearing masks, threats and intimidation, and fireworks being set off in residential areas in the middle of the night.

“The impact on Ottawa for those three weeks of harassment, street blockages, ear-splitting air and train horns and general lawlessness was unprecedented,” said Paul Champ, who is serving as counsel representing the Ottawa Coalition of Residents and Businesses.

Champ said his coalition doesn’t anticipate taking a position on the Emergencies Act invocation, but rather wanted to provide a voice for the residents who endured a “crisis.”

“There were fireworks going off at all hours of the night, pinging off buildings, pinging off windows. … There was no public services: paramedics, ambulances, no busses, no taxis. Grocery stores were closed.”

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Settling the debate at the heart of these arguments, according to Rouleau, will require careful consideration of the evidence supporting — or detracting from — the government’s assertion that the convoy protests across the country constituted “threats to the security of Canada.”

“This is the first time the Act has been used and this is the first time opportunity for its review,” Rouleau said.

“How and why the powers in the Act were invoked are matters of great public interest.

What will the next six weeks look like?

The commissioner and his co-lead counsel kicked off the first day of public hearings by informing the public just how much they must accomplish in the weeks ahead — and how little time they have to do it.

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“This commission will need to hear from dozens of witnesses and examine thousands of documents. Our timelines are tight and there’s little room for error,” Rouleau said.

The timeline for this work is laid out in legal statute, meaning there’s no possibility of an extension. The commission will have to produce a report by Feb. 6, 2023, come rain or shine.

In order to meet that deadline, the commission has laid out a strict timeline for the weeks ahead.

Click to play video: 'Trudeau ‘very much looking forward’ to testifying at public inquiry into Emergencies Act'
Trudeau ‘very much looking forward’ to testifying at public inquiry into Emergencies Act

First, on Friday, they plan to hear from people who lived through the occupation in Ottawa. That includes two city councillors whose ridings were in the occupied zones of Ottawa, as well as Zexi Li, the lead plaintiff in a class action seeking millions in damages over the convoy protest.

Starting early next week, the commission will dig into the municipal response to the occupation in Ottawa, then after that, the police response.

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The inquiry will then call “a number of organizers and participants in the Ottawa protest,” according to Shantona Chaudhury, co-lead counsel for the commission.

After that, the inquiry will discuss the blockades at border crossings in Alberta and Ontario, at which time they will speak to municipalities and police, among others. Chaudhury said the commission will then hear about the provincial response from the Alberta and Ontario governments.

During the final two weeks of the public hearings, the commission will hear from federal witnesses on the invocation of the Act, a process that will see them question senior officials from federal departments and intelligence agencies, as well as cabinet ministers.

This is also the point when the commission will hear from the prime minister.

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While commission counsel will take the lead in asking witnesses about their experiences, others will get a turn, too. Counsel for the parties who have standing in the inquiry will also be offered the opportunity to ask the witnesses questions, followed by the witnesses’ own counsel.

“This commission is about to begin the process of finding answers to the questions assigned to it by Parliament,” Rouleau said.

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“What led the federal government to declare an emergency? How did it exercise the powers that it obtained and where its actions appropriate?”

These questions, Rouleau said, are of “fundamental importance.”

“In the 34 years since its adoption, this is the first time the act has been used and this is the first time opportunity for its review. How and why the powers in the Act were invoked are matters of great public interest,” he said.

“I am confident that the hearings will provide a fair and thorough process for the presentation of evidence required for this commission to be able to give the public the answers to which it is entitled.”

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