Why Rouleau Didn’t Have All the Information Needed to Rule on Emergencies Act Invocation

Feb 22, 2023 | Freedom Forum

VIEWPOINTS published in The Epoch Times Barry Bussey:

Barry W. Bussey February 19, 2023

The report from the Public Order Emergency Commission shows that Commissioner Paul Rouleau was missing key information he needed to make his ruling, in which he said he found “with reluctance” that the use of the Emergencies Act to clear convoy protests was justified.

On the one hand, the report is critical of everyone involved—the police, social media, and the government. On the other hand, it lets the federal government claim a victory. It is, however, a pyrrhic victory, as we will soon see.

There is also the issue of perception. There have been reports of Justice Rouleau’s past work with the Liberal Party. That is not to take away from Mr. Rouleau personally, but in such delicate matters justice must be seen to be done. Let it suffice to say that Prime Minister Trudeau would have better served the Canadian people to have appointed a judge that had a Conservative past.

Rouleau’s decision is akin to the parent recognizing the inappropriateness of a wayward child’s misuse of the family car in knocking down a pedestrian. After a few words of remonstration, the parent hands over the car keys for the child to go cruising with friends. Indeed, anyone who watched the hearings saw firsthand the multiple incidents where government officials redacted documents and ministers, such as David Lametti, refused to answer questions because of a claimed privilege.

It is disappointing that Mr. Rouleau refused to hold the government to account for such lack of transparency. His recommendations reveal that, as a commissioner, he had his hands tied behind his back. He did not have all the information he needed.

With that impediment, however, he did not cry “Foul!” and hold the government accountable. Instead, his ruling effectively whitewashes the abuse of power, and lowers the bar for future governments to impose draconian measures against those with whom they disagree.

The government’s pyrrhic victory is due to the fact that the trucker Freedom Convoy was a pivotal moment in Canadian political history, when the average Canadian who was adversely affected by Mr. Trudeau’s demonization and overreach recognized that they had the wherewithal to peacefully protest. Not even the commission’s contradictory and confusing report will take that realization away. In other words, the “fringe minority” class awareness has not dissipated but is now awakened to ensure that government abuse does not continue.

Rouleau’s recommendations, and particularly numbers 37–49, are evidence that all was not well in his assignment. For example, Recommendation 37 says the Emergencies Act (EA) should be amended to allow any future inquiry be pursuant to Part 1 of the Inquiries Act, which allows the inquiry to be open-ended in getting to the bottom of the matter. That was not done for his inquiry. Note the litany of other recommendations that reveal Rouleau’s uncomfortable position of being asked to review the government’s actions but then not be given the tools to do so.

Consider the following recommendations:

38 – EA should be amended to allow the inquiry to “examine and assess the basis for the declaration and the measures adopted.” This was not clear for Rouleau in the current situation.

39 – The commissioner “should be consulted as to the substance of the terms of reference for the inquiry.” In other words, no longer should the Prime Minister’s Office dictate the terms of the inquiry but all future commissioners should be free to go wherever the evidence leads.

40 – EA needs to be amended “to require the Government deliver to the commission a comprehensive statement setting out the factual and legal basis for the declaration and measures adopted, including the view of the Minister of Justice of Canada as to whether the decision to proclaim an emergency was consistent with … the Emergencies Act, and … with the Charter.” Here is the shocker: Mr. Trudeau’s government did not disclose this very important information to the commissioner. Rouleau obviously was not pleased and hence the recommendation, yet he still let the government off the hook.

41 – EA should be amended to require government elected officials and bureaucracy to maintain “a thorough written record of the process leading to a decision to declare a public order emergency.” That was crucial information not given to Rouleau.

42 – Government should collect all its “documents and information as soon as the declaration of emergency is made” and give them to the inquiry at the outset of its work. Again, not done.

43 – All of the inputs to cabinet and ministers should be given to the inquiry. Not done.

44 – There should be no redactions on government documents (aside from national security confidentiality). Rouleau was given a host of redacted documents.

45 – Create a “working group” to deal with the government’s claims of keeping documents confidential. Government kept Rouleau in the dark on a host of documents.

46 – EA should be amended to allow the commissioner to appoint a judge to resolve any claim of privilege by government. Obviously, Rouleau was frustrated with the government’s constant claim of privilege.

47 – A Federal Court judge should be appointed to determine the government’s claims of privilege on an expedited basis. Rouleau was forced to accept the government’s claims of privilege at face value. As a result, scads of material were denied his review.

48 – EA needs to be amended to give the inquiry power to order anyone to hand over all information. Rouleau did not have that.

49 – EA needs to be amended so that a parliamentarian cannot claim parliamentary privilege to refuse to testify. Doug Ford got off the hook on this one.

These recommendations, in my view, suggest that Rouleau did not have the information he needed to properly carry out the inquiry. No wonder he said that it was “with reluctance” that he decided the government met the threshold to invoke the Emergencies Act. It appears to me that Rouleau recognized the inadequacies of the commission’s investigatory powers, yet he gave the government a pass in the most serious abuse of power ever seen in a federal government.

 It behoves us, as Canadians, to remain vigilant in these uncharted waters of increased government power. We cannot afford to give the government the benefit of the doubt.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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