Expert views on the Emergency Act
A troubling set of perspectives of little value to ordinary Canadians
Today I sat is on a Zoom meeting of the Nathanson Centre on Transnational Human Rights, Crime and Security entitled “Ottawa and the Emergency Act: A Big Round Table”. I was invited as a graduate student at Osgoode Law School and the event was not open to the public as far as I know.
The discussion was one way - a number of distinguished speakers gave their views on the validity of the Trudeau governments’ invocation of the Emergency Act (the “Act”) and participants who were not speakers were not invited to speak or to ask questions other than through the “chat” function which directed any questions or comments solely to a selected speaker, who had no obligation to respond. As best I could tell, there were no more than a dozen speakers and about 160 participants including the speakers. I have no doubt most of the non-speakers were law students or practising lawyers.
The speakers were legal experts by and large, although one speaker was a post-graduate student named Matthew Green. The cast of characters included Bruce Ryder, Gus Van Harten, Eric Adams, Corey Shefen, Monique Jilisen, Jennifer King, Kent Roach, Francois-Tanguay Renaud and Brendan Van Niejiuhuis. My apologies to any of them if I have mispelled their names since I am relying on my memory which at 76 years of age is not what it was in the 1960’s when I was an undergraduate at Royal Military College of Canada.
I was impressed by the quality of the analysis done by the various speakers and dismayed by the absence of common sense. On balance, they correctly (in my opinion) seemed to be of one mind that Canadian Courts would not overturn Parliament’s decision to invoke the Act notwithstanding the vote ratifying the Prime Minister’s decison was strictly partisan and enforced by the Trudeau’s insistence the matter was a vote of confidence. Several Parliamentarians disagreed with use of the Act but voted to uphold the Act simply to avoid triggering an election, a patently disgraceful abandonment of their duty to their constituents and to Canada.
It was clear from the discussion that the government had many less instrusive options than the Act under the Criminal Code, Municipal and Provincial Laws and access to the Courts for civil injunctions. The civil injunction granted by the Courts against the protesters in Ottawa resulted from a step taken not by government but by an ordinary citizen. The Act on its terms is not available to government until it has exhausted its ability to deal with the issue it confronts under existing laws other than the Act. Notwithstanding, invocation of the Act by Trudeau even if capricious is unlikely to see a Canadian Court intervene since the burden on a complainant is extremely high and our courts will defer to Parliament more often than not.
The discussion on the Zoom call today raised questions like the following:
What are the details and sources of the evidence the Freedom Convoy comprised a national emergency?
To what extent are there additional factors that are not publicly known that guided Parliament or the Prime Minister in invoking the Act?
Were the protesters agents of another country?
Did the protesters have secret plans to kill police or members of Parliament?
The discussion of statutory interpretation was interesting. I learned in my graduate course at Western Law School that law students are encouraged to argue that the correct interpretation of any statute is the one that best fits their client’s interest, not the one that was intended by Parliament or any Legislature, and that is what they are duty bound to argue.
This group of experts clearly had among them those who seemed eager to argue that Trudeau was within his powers to invoke the Act regardless of the evidence. One speaker appeared to suggest that a future government might invoke the Act and declare “climate change” a national emergency. Forget the indisputable fact that the theory of Anthropogenic Global Warming is unproven and demonstrably inconsistent with the laws of physics, as I have written about separately. “Evidence” among many of this group is little more than a claimed fact that supports a political or personal agenda or a potential submission that can be put to a judge in a proceeding. Truth appears to a barrier rather than an objective.
The discussion stopped short of claiming the Freedom Convoy was a Russian conspiracy or a group of terrorists planning to overthrow democracy but came close. It seems that our law schools are long on creative imagination but short on Occam’s Razor - the simplest answer is more often the correct one. In a nutshell, the truckers were opposed to vaccine mandates. That is and was all that was going on. Some experts correctly pointed out that existing laws such as the Criminal Code, Municipal laws and Provincial statutes provided plenty of power to end the Freedom Convoy, while others argued there might be something we don’t know about and will never know about that compelled the use of the Act. It is hard to imagine a circumstance where that argument cannot be made, opening the door to abuse without sanction.
I left with the disappointing conclusion that the experts who spoke were correct that our Courts would be unikely to reverse the invocation of the Act. I also left with a quandary - is Parliament where integrity is left at the door during sessions or is law school where common sense goes to die?
The Act was enacted with clauses to protect Canadians from abuse of the Act by its government. The Freedom Convoy proved you could drive a truck through those protections.