The public inquiry into the federal government’s use of the Emergencies Act ended Friday with Commissioner Paul Rouleau’s mammoth five-volume report that found Prime Minister Justin Trudeau met the threshold to invoke the act.
While the prime minister met the bar for invoking wide-sweeping powers to address protests in Ottawa, and at key Canada-U.S. border crossings, that took aim at anti-COVID-19 restrictions and anti-government, the commission concluded this move could have been avoided if it wasn't for "a series of policing failures" and all levels of government failing to "rise above politics."
Rouleau’s 273-page executive summary states that the series of events that transpired can be seen as "a failure of federalism" as Canada's leaders failed to anticipate or properly manage the "torrent of political protest and social unrest" that was exacerbated by the COVID-19 pandemic and shaped by online disinformation.
Here is a transcript of Commissioner Paul Rouleau’s full statement about the government’s decision to invoke the Emergencies Act. Portions of this statement have been translated from French and edited for clarity.
FULL TRANSCRIPT
Today, I am very pleased to announce that the report of the Public Order Emergency Commission has been submitted to Parliament. It will soon be available on the Commission’s website.
I would like to firstly acknowledge that I am making this statement from the traditional territory of the Algonquin Anishnaabeg People, at the National Archives of Canada, just steps away from where many of the events that led to this inquiry took place.
The Public Order Emergency Commission was established on April 25, 2022 as a result of the Government of Canada’s decision to invoke the Emergencies Act in response to protests in Ottawa and elsewhere in Canada in January and February of 2022.
The Commission was directed to examine and report on the circumstances that led to the declaration of a public order emergency, and the measures taken by the government for dealing with the emergency.
The Commission was also tasked with examining, to the extent relevant to the circumstances of the declaration of emergency and the measures taken, the following questions:
• The evolution and goals of the convoy and blockades, their leadership, organization and participants;
• The impact of domestic and foreign funding, including crowdsourcing platforms;
• The impact, role and sources of misinformation and disinformation, including the use of social media;
• The impact of the blockades, including their economic impact; and
• The efforts of police and other responders prior to and after the declaration.
This was a monumental task for the Commission, particularly in light of the fact that this report had to be completed in less than 300 days.
Thanks to the hard work and dedication of too many people to name, I am proud to say that we have carried out the important task assigned to us by Parliament, we’ve produced a thorough and comprehensive report, and we have met the deadline set by the statute.
On previous occasions, I have said that this Commission’s task is first and foremost to be a tool of accountability and to foster public confidence.
The invocation of the Emergencies Act was a significant event. Members of the public have a right to know what the government did, and why they did it.
The Commission has already contributed to the public’s right to know through its public hearings.
For over 30 days in October, November, and December 2022, the Commission heard from 76 witnesses, and 50 experts.
Many senior government officials were examined, both by Commission Counsel, and by counsel for the 22 parties to whom the Commission granted standing to participate in the hearings.
The witnesses who testified included organizers of the convoy, citizens affected by the protests, police, public servants, and elected officials at the municipal and federal levels. Even the Prime Minister testified, providing his own account of the events in question.
There was also unprecedented access to documents produced by dozens of different entities, including the federal government.
Commission counsel were security cleared and able to review documents that were otherwise classified or protected by national security or other public interest privilege.
For only the fourth time in Canadian history, cabinet confidence was waived over records containing the “inputs” that were before Cabinet when it deliberated over the use of the Emergencies Act.
Approximately 28,000 documents were disclosed to the parties who participated in the hearings, and approximately 9,000 of those were introduced into evidence.
The proceedings became a rare public examination of decision making by the federal government, other governments and government agencies.
Thousands of people watched the proceedings, read the transcripts, and examined the exhibits.
From these proceedings, the public has already been exposed to an immense amount of information.
Individuals have been able to form their own views about the events of early 2022.
Today, with the publication of my report, the Commission contributes to public accountability in a second way: by setting out my findings, conclusions and recommendations following the events in question.
My report contains over 2000 pages, spread across five volumes.
It consists of an executive summary, two volumes of analysis, a detailed record of the Commission’s activities, a report summarizing the over 8,800 submissions received in our public consultation process, and a collection of expert policy papers produced for the Commission.
In the report, I chronicle the origins of the “Freedom Convoy.”
I conclude that it was not an organization with clear leadership, rather, it was a movement comprised of people who shared certain social, economic and political grievances, but also had countless individual views.
Many of the protestors’ concerns long pre-dated the COVID-19 pandemic. They were rooted in feelings of loss of place within Canadian society, alienation, economic anxieties, and loss of faith in government.
That said, the pandemic and responding public health measures were an important motivator that caused the “Freedom Convoy” to mobilize.
Some will want my report to make findings or conclusions about COVID itself, or the correctness of how government responded to it. Those people may be disappointed.
My mandate is not about the pandemic or public health policy. Those are important topics, but not ones with which I have been tasked.
I do, however, make two observations.
First, the COVID-19 pandemic was perhaps a once-in-a-generation crisis. Governments – federal, provincial, municipal – responded in good faith to circumstances as they understood them.
Second, however one views those responses, they imposed real hardship on thousands of Canadians.
People did not only lose family and friends to the disease. Some also lost jobs, businesses, homes and savings. Many more, such as health-care workers, laboured under extremely difficult circumstances.
Truckers were another group that felt a heavy weight from the pandemic, sometimes made more difficult by health measures put in place by governments.
When new rules that limited the ability of unvaccinated truckers to cross the Canada-U.S. border were announced, this served as a rallying point for those who disagreed with government policy.
These individuals organized, mobilized and became what would come to be known as the “Freedom Convoy” movement.
One of the most cherished rights enjoyed by Canadians is the right to engage in political protest.
The ability of individuals and groups to publicly voice their dissent enriches and empowers our democracy.
It is hardly surprising that government health measures would cause some form of protest in response, given their impact on peoples’ lives.
What was surprising was the size and scale of these protests, and the way in which they proliferated across the country.
The majority of those who participated in the protests were animated by a genuine desire to engage in peaceful demonstrations so that their voices would be heard by leaders in government.
They wished to exercise their fundamental right to express their political views, and they had a right to do so.
However, like any large group, there were a diversity of views and intentions amongst the participants of the “Freedom Convoy.”
Amongst the many who intended to protest peacefully were others who had more sinister goals, or who were willing to engage in dangerous conduct to achieve their desired ends.
For reasons that I discuss in my report, what began as a massive protest evolved into something entirely unprecedented: an occupation of the core of the nation’s capital.
The events of January and February 2022 were not limited to Ottawa.
As I describe in my report, protests were occurring across the country in places such as Coutts, Alta; Emerson, Man.; and Windsor, Ont.
These protests were also diverse. They ranged from peaceful marches to blockades of critical infrastructure.
The size and scope of these protests was truly unprecedented. Police and governments alike struggled to respond.
Ultimately, the federal government’s response was to declare a public order emergency.
One of the most difficult questions that I have faced is what role I should play in assessing Cabinet’s decision to invoke the Emergencies Act.
There is no precedent that helps to answer that question.
Some parties have argued that I should not opine on the appropriateness of the decision and whether government met the statutory requirement to declare the public emergency order was not within my mandate.
They note, quite properly, that determining the legality of the government’s actions is the role of the courts of law.
Others, however, have argued that pronouncing on the decision is the raison d’être – the very reason – for this commission.
In my view, the role and focus of a commission of inquiry into the use of the Emergencies Act will depend, to a certain extent, on the context in which the Act is invoked.
In some instances, it may beyond doubt that the conditions for invoking the Act were met, but there may be other questions that require careful review.
In the present situation, however, I am faced with a statute that has never been used or judicially interpreted. Serious questions have been raised as to whether the legal thresholds to use the Act have been met.
My assessment of the circumstances surrounding the invocation of the Act therefore inevitably involved a consideration of the Act’s requirements.
While nothing in my report is in any sense binding on the courts that may hear legal challenges to the use of the Act, I have decided to set out my own views on the invocation of the Act, and the measures taken under it.
After careful reflection, I have concluded that the very high threshold required for the invocation of the Act was met.
In particular, for reasons that I discuss in detail in the report, I have concluded that, when the decision was made to invoke the Act on February 14, 2022, Cabinet had reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.
I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming. Reasonable and informed people could reach a different conclusion than the one I have arrived at.
I also reach this conclusion reluctantly.
The state should generally be able to respond to circumstances of urgency without the use of emergency powers.
It is only in truly rare instances, when the state reasonably believes that it cannot otherwise fulfill its fundamental obligation to ensure the safety and security of people and property, that resort to emergency measures will be appropriate.
In other words, the Emergencies Act is not a tool of convenience but rather, it is a tool of last resort.
The fact that circumstances evolved to the point where Cabinet reasonably considered it necessary to invoke the Act is regrettable because, in my view, the situation that led to its use could likely have been avoided.
As I have explained in my Report, the response to the “Freedom Convoy” included a series of policing failures, though I have also identified sound practices employed by some police services in their response to relevant events.
Some of the missteps may have been small, but others were significant. Taken together, they contributed to a situation that spun out of control.
The failures were not only in policing.
Preparing for and responding to situations of threat and urgency in a federal system requires governments at all levels, and those who lead them, to rise above politics and collaborate for the common good.
In January and February 2022, this did not always happen.
Had police forces and governments better anticipated and prepared for the extent of political and social discontent exacerbated by COVID-19 pandemic, particularly in the environment of misinformation and disinformation so prevalent today, and had they collaborated more effectively, there could have been a different response to this unprecedented situation.
It’s likely that such preparation could have avoided the necessity of invoking the Emergencies Act.
In addition to making findings on the invocation of the Act itself, I have also reached conclusions on the appropriateness and effectiveness of the measures taken under it.
While I have ultimately concluded that the federal government was justified in invoking the Act, I reach a more qualified conclusion with respect to the measures that the government adopted.
I determined that the measures taken by the federal government were, for the most part, appropriate and effective, and contributed to bringing a return to order without loss of life or serious injury to people or property.
I also found, however, that in a number of respects, these measures were deficient. These included important aspects of the Emergency Economic Measures Order such as the absence of any discretion related to the freezing of accounts or assets, and the failure to provide a clear way for individuals to have their assets unfrozen once they were no longer engaged in illegal conduct.
I also discuss aspects of the Emergency Measures Regulations that caused me concern, including the vagueness of its provisions related to securing of places, and its potential impact on freedom of the press.
Drawing on lessons learned through this Inquiry, my report concludes with a set of 56 recommendations.
My recommendations relate to six broad areas:
1. Policing;
2. Federal intelligence collection and coordination;
3. Critical trade corridors and infrastructure;
4. Reforms to the Emergencies Act;
5. Other areas for further study; and
6. Follow-up and accountability following the release of my report.
I hope that these recommendations will go some way to addressing the various issues and deficiencies of a systemic nature that I identify in my report.
Before ending these remarks, I would like to make a few comments about the Emergencies Act itself.
I have already commented that it is regrettable that the situation across Canada deteriorated to the point where Cabinet reasonably believed that the use of the Act was necessary.
We can all hope that such an exceptional confluence of events and circumstances does not occur again.
However, even if it does, and if once again the very high threshold for declaring an emergency is met, members of the public should recognize that the Act contains significant safeguards.
Although the Emergencies Act is often referred to as a replacement for the War Measures Act, it is in fact a very different statute.
The Emergencies Act was designed to respond to a much broader range of emergencies. It was also intentionally designed to provide extensive checks, balances and limits to guard against abuse.
There are significant limits on the kinds of measures that the government can take during an emergency.
The law permits legal challenges to use of the Act, and the measures adopted under it must remain compliant with the Canadian Charter of Rights and Freedoms.
Parliament is given extensive powers of review and control over the executive’s use of the Act. Although Cabinet can unilaterally declare an emergency, Parliament can revoke the declaration at any time.
And, of course, a commission such as this one is mandatory.
Provided that future commissions are, like this one was, created pursuant to the Inquiries Act and given access to the necessary documents and information, they will ensure that the government’s conduct will be subject to meaningful independent scrutiny.
It is notable that the protections that the Emergencies Act contains far exceed those of any provincial or territorial emergencies statutes in Canada, and even in other countries.
While I have made recommendations for various reforms to bring the Emergencies Act into the 21st century, to ensure the effectiveness of future inquiries, and to strengthen government accountability, I am also convinced that there is much in the Act that is commendable.
The Parliament that passed the Emergencies Act in 1988 went to great lengths to ensure that its use would be subject to robust accountability and public scrutiny. I hope that this Inquiry, and my report, have contributed to achieving this.
Thank you.
With files from Senior Digital Parliamentary Reporter Rachel Aiello
