The Public Order Emergency Commission’s public hearings into the federal government’s use of the Emergencies Act last winter kicked off on Oct. 13 with introductory remarks from various parties who have been granted standing in the proceedings, allowing all sides to essentially make their opening arguments.
From federal officials outlining why they think the national inquiry into the government’s invocation of unprecedented powers through the Emergencies Act will conclude that its use was warranted, to lawyers for the central ‘Freedom Convoy’ protest organizers arguing that the government exceeded its jurisdiction, here are the key positions presented on day one by central players in the commission:
GOVERNMENT OF CANADA
“It is important for Canadians to understand the unprecedented critical situation that the country was facing earlier this year. The evidence will show that the invocation of the Emergencies Act was a reasonable and necessary decision given the escalating volatile and urgent circumstances across the country… Government witnesses will outline the deliberate step-by-step process in which careful consideration was given to all the available options which led to the declaration of a public order emergency as a matter of last resort,” said Robert MacKinnon, who is one of the lawyers representing the federal government.
“It is our view that there was no justification whatsoever to invoke the Emergencies Act. The Emergencies Act requires several things. One, it could be invoked due to espionage and sabotage. Are you going to hear any evidence about espionage and sabotage? The answer to that is no. It could be invoked on the basis of clandestine or deceptive foreign influence, or foreign influence that involves a threat to a person. Are you going to hear evidence about that? The answer to that is no. It also can be invoked on the basis of threats or use of acts of serious violence against persons or property. Are you going to hear evidence of violence against persons or property? The answer’s no. Lastly, it can also be invoked if there is a group or persons trying to destroy or overthrow by violence, the system of government of Canada. Are you going to hear evidence about individuals trying to do that? The answer is no,” said Brendan Miller, one of the lawyers representing the convoy organizers.
“Saskatchewan’s position is that the federal government had already determined that a nationwide emergency would be declared, before the First Ministers call on February 14. The call was not so much about consulting as it was about telling… The government is concerned that residents’ rights may have been unnecessarily infringed by these measures,” said Michael Morris, one of the lawyers representing the Saskatchewan government.
“Alberta believes it is important to share with Canadians the facts about how Alberta was able to effectively deal with the international border blockade in Coutts, Alta., prior to the invocation of the federal Emergencies Act. Alberta’s evidence will show that the existing law enforcement tools that were already in place were completely sufficient and they were successfully used… None of the powers that were created under the federal Emergencies Act were necessary, nor were any of them used in Alberta,” said Mandy England, one of the lawyers representing the Alberta government.
CITY OF OTTAWA, RESIDENTS
“The impact on Ottawa for those three weeks of harassment, street blockages, ear-splitting air and train horns, and general lawlessness, was unprecedented… Many people in Ottawa felt like they were prisoners in their own home, and they felt abandoned, and they felt unsafe by the police and by all the levels of government… Make no mistake: It was a crisis in downtown Ottawa. There was disorder. There was chaos. There were propane tanks, gasoline, jerry cans everywhere. There were fireworks going off at all hours of the night… There was no public services, paramedics, ambulances, no buses, no taxis… businesses were closed… The people in Ottawa are still traumatized, commissioner,” said lawyer Paul Champ, who is representing the Ottawa Coalition of Residents and Businesses.
“The first convoy participants arrived in Ottawa not far at all actually from where we sit today, on Jan. 28, and they remained in our city for approximately three weeks. I expect you will hear from witnesses about the significant impacts on the city’s residents and businesses. And you will also hear about the city’s efforts to support the police-led response to the convoy and to mitigate impacts on city services,” said City of Ottawa legal representative Anne Tardif.
“There is a well-established process you will hear, that the Ottawa Police Service follows when protests occur… The Ottawa police, you will hear, followed that well-established process that had always worked with protesters this time as well, and were prepared for an event. But, not for the event that occurred. Why? What you will hear is that this protest was unique in Canadian history. The police had little time to prepare… None of the intelligence predicted in the very brief period of time prior to the convoy’s arrival was the level of community violence and social trauma that was inflicted upon the city and its residents,” said lawyer David Migicovsky, who is representing the Ottawa Police Service.
“The City of Ottawa was ground zero for the protests that occurred… And chief Sloly will assist you in understanding the challenges faced by the Ottawa police service in addressing the evolving illegal occupation. As he will explain, the events represent a paradigm shift in public protests. In particular, he will explain to you the limited resources available to the Ottawa police service to deal with a massive occupation, the limited nature of the intelligence available to OPS about what was coming Ottawa’s way, the importance of the right of lawful protests in our democracy, and the limits of authority of the Ottawa Police Service to deal with protesters,” said former Ottawa police chief Peter Sloly’s representation, Tom Curry.
CIVIL LIBERTY, CONSTITUTIONAL ADVOCATES
“For 34 years the Emergencies Act was never used. The public order emergency of 2022 was a historic first, but now that the glass has been broken on the act, it can be used again. The act was used by this government against individuals protesting vaccine mandates. But, a future government of a different political stripe could use the act in response to protests against pipelines or climate change. When the commission asks hard questions about the act’s use in 2022, the commission must also focus on the act’s potential misuse in the future and protect the right to protest parliamentary democracy and federalism. What the commission says matters not just to Canada, but globally where the use of emergency powers is on the rise. The world will be watching our work,” said Canadian Constitution Foundation representative co-council Sujit Choudhry.
“There are many issues that the commission will be examining which are central to CCLA’s work, including: the lawful scope of the right to protest, the role of police in facilitating protests while protecting public city, the relationship between policing authorities, civilian oversight bodies, and government actors, and the surveillance of those involved in dissenting social movements… The CCLA views the commission that is an instrumental part of achieving the goals of transparency and accountability,” said the Canadian Civil Liberties Association representative Cara Zwibel.
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