Expert proposes changes to the Emergencies Act | Commission of Inquiry into the State of Emergency
Public hearings on the unprecedented use of the Emergencies Act began Thursday in Ottawa.
When the Trudeau government invoked the Emergencies Act to end the truckers' protest, it knew its decision would be scrutinized. The law itself automatically provides for the holding of a public inquiry if it is used and the creation of a parliamentary review committee. But, according to an expert, this is not enough to force the government to be completely transparent.
In a document submitted to the Rouleau commission, Ryan Alford, professor at the Lakehead University School of Law, proposes four amendments to the Emergencies Act to correct some problems. Interview.
You are proposing that the parliamentary review committee be chaired by a member of the opposition and not an elected government official. Why?
It is customary for a review committee to be chaired by the opposition. It is related to the principle of natural justice. One of the key elements of natural justice is that you cannot be both judge and jury.
The committee is called upon to consider whether the government invoked the Emergencies Act with justification. Who should answer this question? At present, it is the chairman of the committee who is a member of the party that forms the government. This is a real problem because he finds himself judge of his own cause.
The examination committee must therefore be organized in such a way as to respect parliamentary conventions , which includes a chair held by members of the opposition.
Bloquiste Rhéal Fortin is one of the co-chairs of the parliamentary review committee and has repeatedly decried the redacting of multiple documents of the government.
By giving more power to opposition parties in this way, isn't it dangerous that the process will not become more partisan?
It's an interesting question. Rules govern the operation of parliamentary review committees. It is up to the opposition to avoid the appearance of partisanship. This is an opportunity to rise above the political game.
If elected officials show up to the parliamentary review committee with the sole intention of scoring political points on the back of the government, Canadians would realize that. This partisanship would be against their interests.
Senior officers from the various police forces present during the truckers' convoy are part of the commission's witness list Roller.
Let's talk about the commission of inquiry. In your view, it is inappropriate for the government, the very government that invoked the emergency measures, to choose the commissioner. Why is this a problem?
The people who have power over the commissioner's appointment process are the same people he must judge. So you have an order in council issued by the federal cabinet that appoints the commissioner. The question that will be asked is: why was this person appointed by the government?
I am convinced that, in a completely transparent process, the government would be able to justify its choice objectively. [Paul Rouleau] is perfectly bilingual. He has a long experience in the Court of Appeal. Prior to that, he was a trial judge. But the very fact that people can ask this question and speculate on the benefits of this appointment [for the government] is a real problem. We could avoid all of this if the appointment of the commissioner resulted from the unanimous recommendation of all the members of the parliamentary review committee.
Commissioner Paul Rouleau watches a lawyer appear via videoconference during the first day of proceedings of the Public Order Emergency Commission inquiry.
In your view, the commission of inquiry should have the explicit mandate to determine whether the government had reasonable grounds to conclude that there was a threat to national security and whether this met the thresholds established in the Emergencies Act. Why should this mandate be defined more clearly in the law?
The government should not have flexibility where it could try to influence the mandate of the commission; the latter must be confined to the law. At the heart of these legal requirements is the central question of whether the government had the basis to use the emergency powers.
In this case, Commissioner Rouleau was very clear about the nature of its mandate in the spirit of the law, but we cannot expect that to always be the case in the future. It cannot be taken for granted that a commissioner will carry out an in-depth legal analysis of his mandate.
The government should not be given the opportunity, when submitting the documents to establish the commission, to use the opportunity to shirk accountability and responsibilities.
Prime Minister Justin Trudeau and seven of his ministers will be called to testify before the commission.
You suggest that a commission have the power to quickly go to court when the government wants to keep information confidential for national security reasons. What would this change?
The problem is that the government could try to use certain legal doctrines so that, for example, the director of the Canadian Security Intelligence Service testifies in camera, without the presence of the parties and their lawyers. He could file secret evidence that cannot be revealed – even in summary form – contradicting testimony offered publicly before the commission.
This creates conditions favorable to abuse. The best solution would be to give the commission and the parties involved the power to quickly obtain a judicial review where the court could decide and say: Okay, the government has no justification for withholding this information.
The commissioner explained several times that he was working under very tight deadlines. It therefore depends on the goodwill of the government in a context where we know that it has not always acted in good faith in such circumstances, when the time comes to claim confidentiality in matters of national security. The government's track record in past public inquiries [like Air India's] is not good. It seems inappropriate to put the commissioner in a position where he does not have the means to know if the government is trying to sabotage the investigation.
* Some words have been shortened or edited for clarity and precision.
With the collaboration of Marie Chabot-Johnson