Opinion: Cabinet has lots of explanations, but no answers, for why it invoked the Emergencies Act

Over the past six weeks or so, members of cabinet have offered a potpourri of reasons to explain why the federal government took the unprecedented step of invoking the Emergencies Act back in February. There have been many explanations – just no real answers.

Public Safety Minister Marco Mendicino has said on multiple occasions that the decision was made on the recommendation of police. His testimony before the special joint committee struck to investigate the invocation of the act was unequivocal: “We invoked the act because it was the advice of non-partisan professional law enforcement.”

Yet law enforcement, including RCMP Commissioner Brenda Lucki and the interim Ottawa police chief, said they never requested the invocation of the act.

Emergency Preparedness Minister Bill Blair offered a modified explanation when it was his turn to appear before the committee. He said that though law enforcement didn’t specifically ask for the Emergencies Act, they did say they needed more tools to clear the blockades and restore order to downtown Ottawa. “We made a determination based on information that we were receiving from our officials and from local law enforcement about the challenges they were facing,” he said, pointing to the difficulty that some jurisdictions were having in securing tow trucks as one example.

Yet Mr. Blair also acknowledged that the protest at the Coutts border crossing in Alberta was cleared by the RCMP before the Emergencies Act was invoked, suggesting police were quite capable of dispersing protesters without extraordinary powers. Mr. Blair nevertheless insisted that the wider threat posed by other demonstrations meant police needed to be given additional tools.

When it was her turn to appear before committee, Deputy Prime Minister and Finance Minister Chrystia Freeland said the justification for invoking the act was economic. “I was very gravely concerned about the damage to our trading relationship with the United States and our reputation as a reliable partner,” she said.

But when asked by the NDP’s Matthew Green to provide specific evidence that the economic fallout would be so severe as to meet the threshold of a threat to the security of Canada as defined by Section 2 of the CSIS Act, Ms. Freeland dodged the question. “Let me again be really, really clear,” she said, before listing off vague observations about what the disruptions meant for business and trade.

Was the Emergencies Act justified? Without knowing what cabinet knew, it may be impossible to say

If Marco Mendicino misled Parliament, he has to go

These committee hearings have so far revealed, therefore, that the Emergencies Act was invoked because it was specifically asked for by law enforcement (but also never requested by law enforcement); because police asked for additional tools (which were not needed to clear the Coutts and Windsor, Ont., blockades); because the protests were affecting our trade relationship with the U.S. (you’ll have to just take Ms. Freeland’s word on this one); and also because, as Ms. Freeland implied back when the act was first invoked, there was concern about terrorism and money laundering (though FINTRAC deputy director of intelligence Barry MacKillop seemed to suggest there was little by way of evidence when he appeared before the committee in May).

Even if these explanations were suitably coherent and backed up by evidence, they still would not address why the government believed the legal threshold to declare a public order emergency was met: how cabinet came to be of the opinion that the situation could not effectively be dealt with under any other law and why it believed the situation was so critical as to rise to the level of a threat to the security of Canada. To take the explanations that have currently been offered at face value would be to accept that the Emergencies Act may be invoked at some future time when, for example, the police are stumped about how to handle a demonstration, or if and when energy activists try to disrupt crude exports to the U.S.

Cabinet members’ appearances before the committee make clear that they have no real intention of actually providing evidence to their parliamentary colleagues – never mind to Canadians – to justify their decision to invoke the act. Ms. Freeland evaded even the more mundane questions – about whether she discussed with her U.S. counterparts their offer to provide tow trucks (“The conversations with me focused on the economy”), whether bank CEOs and FINTRAC expressed any reservations about Emergencies Act measures (“Their job was to act in accordance with the law we had passed”) and just who first raised the prospect of invoking the act (“It was a collective decision”). The government appears to be merely humouring this exercise in accountability just long enough for Canadians to forget and move on. Unfortunately, as a political gamble, it’s not a bad bet.

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