Michael Kempa: How Trudeau (barely) made his case for using the Emergencies Act

The Public Order Emergency Commission wrapped its evidence phase on Friday, giving the last word to Prime Minister Justin Trudeau. Counter to his usual form of unscripted flubs, it was Trudeau who most effectively articulated the legal basis of his government’s decision to invoke the Emergencies Act this past February.

Discerning the government’s legal position has not been easy. Obfuscating things, the government has relied on attorney-client privilege to refuse to divulge what legal advice Attorney General (and also Justice Minister) David Lametti gave his client — the federal cabinet — to guide their decision. This has set the government’s legal footing within a “black box,” as lawyers for the commission, civil liberties groups, and freedom convoy organizers have lamented.

If ever there was a time to waive such privilege, surely it would be to satisfy the ultimate purpose of a commission of inquiry designed to provide Canadians with the information they need to judge if their government’s exercise of amazing authority over them was legal and reasonable? Common sense. However, there is also the government’s real-world worry that exposing the details would render them vulnerable to coughing up millions through losing the cases of civil litigation open against them.

Despite the black box, top members of government have let slip a great deal about what they understood justified their decision. And after 10 days of such testimony, it can be uncharitably said that this government would have difficulty explaining the preparation of a frozen pizza to anyone, even if armed with the print instructions — so convoluted and, on their face, contradictory, have their utterances and written submissions been.

The written instructions in this most consequential case of deciding if we have crossed the threshold into an emergency posed by “threats to the security of Canada” that justifies mobilizing Canada’s most formidable legal instrument are the now famous section 2 clauses of the CSIS Act. At least one of them must be present and unresolvable through ordinary civil powers and institutions.

They include espionage or sabotage, clandestine or deceptive foreign-influenced activity damaging to Canadian interests, and overthrow of the democratic government. The government has at least made crystal clear that it hangs its hat on the third subsection that rounds out this list of four, involving acts or threats of serious violence against persons or property for political, religious, or ideological objectives. All parties agree that these same standards for defining “threats to the security of Canada” constrain both CSIS and the government.

So far, so good. But, from there, things have gone off the rails. The difficulty we face over the first ever invocation of the Emergencies Act is that CSIS Director David Vigneault has opined that for CSIS’s purposes of seeking warrants to engage in intelligence operations against certain streams of the protest movement, these standards were not met — while, at the same time, both Vigneault and the government claim that they were met for the government’s purposes of restoring public order and safety through invoking the Emergencies Act. How can it be that the same standards, applied in the same ways to two different bodies could yield different results?

There are three possible responses.

The first is the “originalist” position, so-called because its proponents hearken back to some of the Hansard parliamentary records of the genesis of the CSIS Act. This take, associated with prominent academic Leah West and vigorously advanced by civil liberties lawyers at the commission, holds that the words, thresholds, and execution of the section 2 CSIS Act standards must be the same for CSIS and government. By this view, David Vigneault is mistaken that the government was justified in its actions: Justin Trudeau and company dismally fail the threshold test and the current invocation of the Emergencies Act stands as an illegal abuse of Canadians’ rights.

Underpinning the originalist position is the honourable concern that allowing any interpretive daylight between definitions and applications between CSIS and the government would make it far too easy for the government to run roughshod over our rights in the future. However, both Vigneault and Minister Lametti charge that the originalist position gives CSIS an undemocratic veto over the decision-making of elected government — in effect, a well-intentioned map to protect civil liberties that would inadvertently set up a police state. It is for these reasons that the originalist position is likely to be passed over as the gold standard to judge Trudeau by Justice Rouleau.

The second approach, which I advanced in the Post earlier this week, is the “thresholds” position. This is where Vigneault seemed to be going in his testimony, where he stressed that CSIS and the government have very different functions, and so it is important to read and apply the  section 2 standards in different ways. How to define “different” is where the government tied itself into knots this week.

More helpfully, Vigneault and Lametti hinted that, given the different agencies’ roles and activities, the thresholds for the same types of cases might be lower for government. For example, where section 2(c) speaks of violence and damage to property for a political purpose, for CSIS this would normally refer to things like a bomb plot to destroy a building and which might bring imminent loss of life. For government, the same standard might apply to the lower threshold of blocking critical infrastructure in such a way as to substantially damage the economy (a form of property) that would cause loss of livelihoods.

It would seem that by the thresholds approach, the government just passes the legal bar for the current emergencies episode. This approach has its merits: Holding CSIS to the highest standard is aligned with other parts of the parliamentary record outlining why CSIS was created to begin with: to cleave domestic intelligence from the RCMP and pass it to a tightly controlled agency that could never slip any domestic political espionage past the judiciary and responsible minister.

Ministers Bill Blair, Anita Anand and, especially, Chrystia Freeland, echoed many of these views in their submissions and testimony, but then, all concerned also slipped into speaking about the section 2 standards “more broadly,” and, possibly, modernizing them through an “updated” lens. This sent lawyers apocalyptic, on the basic point that you can not move the legal goalposts. As much as we will need to update the old-fashioned CSIS Act definitions of national security, this is a question for the future, not a suitable justification for what has been done.

Trudeau cut through this fog on Friday. When pressed, he was unequivocal that the section 2 CSIS Act standards reflect the “same words” for both agencies. When asked how it could be, therefore, that two agencies working from the same words could come to different conclusions, Trudeau again referred to the fact that both agencies have different functions. The crowd seemed subdued on this point, as it appeared we were continuing down the familiar thresholds path from earlier this week.

1. Michael Kempa: Using the Emergencies Act was necessary, if regrettable

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However, some minutes later, when pressed by civil liberties lawyers on the point of whether the thresholds of these words for CSIS and government were also the same, Trudeau paused, perhaps sensing the anticipation of that moment and replied “yes.” This wrought some more of the gasps of surprise that have emerged at significant moments over the last five weeks of commission testimony. This time, however, the gasps were limited to the two rear rows of seats reserved for journalists, who were the ones in the room tweaked for the significance of such minute legal detail.

The civil liberties lawyer immediately ended her questioning. Had Trudeau stumbled? Had he just admitted that he was wrong to invoke the Emergencies Act? In fact, not in his view. Earlier in his testimony, Trudeau had said that CSIS comes to its view “based on the information it receives for its purposes.” The government also takes information from CSIS, Trudeau continued, but also has a “wider range of inputs” from many other sources who are helping inform government in its consideration of whether the section 2 standards are met.

Trudeau has therefore made clear that the government’s position is an “inputs” argument: CSIS and the government can disagree, and government has the final say, because the government’s functions are broader and thus it receives a wider range of information than CSIS.

By the inputs argument, if Trudeau has successfully established to the public that the government’s information was better than the information CSIS had on its own — and that the government’s belief that we had reached a threat to the security of Canada was reasonable — he will have met the legal bar for the invocation of the Emergencies Act.

Next week, the commission will bring in the “tall foreheads” — experts who will help the commissioner wade through precisely these types of more abstract considerations on policy panels. The likely outcome is that the originalist position will fall, and some version of either the thresholds or inputs approaches will put the government in the legal clear on the invocation of the Emergencies Act. The real test will be what bigger reforms we set in place in our ordinary civil powers and institutions to draw the angry millions back into our democratic fold.

Michael Kempa is an Associate Professor of Criminology at the University of Ottawa. His book on the Canadian state’s response to the freedom convoy will appear via Cormorant publishing in mid-2023. @michaelkempa1