'Emergency is not in the eye of the beholder' says Cara Zwibel of the Canadian Civil Liberties Association

Last week the Public Order Emergencies Commission heard from key federal officials, including the prime minister’s security and intelligence advisor, and according to the Canadian Civil Liberties Association, none were able to back up the claim there was a national emergency as defined by the Emergencies Act.

The Public Order Emergency Commission, led by Commissioner Paul Rouleau, is meeting for six weeks and will hear from more than 50 witnesses and examine thousands of pages of documents which will hopefully shed light on the circumstances that led to the invocation of the Act, including “the evolution of the [Freedom] convoy, the impact of funding and disinformation, the economic impact, and efforts of police and other responders prior to and after the declaration,” according to the Commission’s Web site.

Canadian Civil Liberties Association lawyer Cara Zwibel (left) cross-examines Jody Thomas, Prime Minister Trudeau’s security advisor, November 17, 2022. Screen shot from CPAC.

As I’ve previously reported here, and here, the Canadian Civil Liberties Association (CCLA) argues that the trucker convoy, the Ottawa blockade, and the border blockades did not meet the extremely high threshold laid out in the Act. The group has taken the federal government to court over the matter. The Commission granted the CCLA “standing” in the inquiry, which gives the organization the ability to cross-examine witnesses.

Last week the hearing heard that the Canadian Security Intelligence Service (CSIS) did not believe the “Freedom Convoy” constituted a threat to national security, according to the definition outlined in the Emergencies Act. The Act itself defers to the CSIS definition of national security threat which includes espionage, foreign interference, serious violence against persons or property, or the intent to overthrow a government using violence.

The hearing also heard from Jody Thomas, the prime minister’s security and intelligence advisor, who said the definition of a “threat to security of Canada” under the Act should change to reflect the times. Thomas told the commission that she was aware of CSIS’s conclusion that the Ottawa protests did not meet the threshold necessary to declare a national emergency but she felt the intelligence agency’s mandate needed to be “modernized.” Thomas also told the commission that the definition of a threat to “national security” should be made in a policy not in legislation, and that it should be crafted by Public Safety Canada, the department in charge of public safety.

Deputy minister of Public Safety, Rob Stewart, told the Commission that the government had a broader interpretation of what constitutes a national security threat.

Here is an excerpt from Jody Thomas’ testimony, when cross-examined by Cara Zwibel:

Cara Zwibel (CZ): Your view is that the Emergencies Act should have a broader definition of what constitutes a threat to the security of Canada. Is that right?

Jody Thomas (JT): I think that both acts [Emergencies Act and CSIS Act] were written in the 1980s, and they both need to be modernized to reflect the reality of the nature of threats that are occurring in 2022.

CZ: You understand that in the case of the Emergencies Act, there were reasons why we would want a high threshold?

JT: I'm not disagreeing with the threshold. I'm just speaking about an Act that was written 30 years ago and that needs to be modernized to reflect the reality of the kinds of threats that exist in the world today.

CZ: And we'd want a high threshold because the Emergencies Act allows the government to bypass the parliamentary process and rule out executive order, at least for a brief period of time.

JT: Right. But does allow for all the transparency of going through the parliamentary process and for processes like this one. So, I am not saying that the government should have more expansive power or a lower threshold. I'm saying that the Act should not sit 30 years untouched.

CZ: Although you believe that the definition should be reconsidered in the Emergencies Act, do you understand that currently the definition of a public order emergency in the Emergencies Act is tied exclusively and exhaustively to the definition?

JT: The federal government legal opinion is different and there will be legal arguments to that. And I'm not the person to make that argument.

According to a CCLA release titled “Emergency is Not in the Eye of the Beholder,” the commission testimony so far indicates there was no national emergency “within the meaning of the law.” The release states:

Witnesses have now stated that the government declared an emergency using criteria found outside the confines of the definition of the Emergencies Act. The government’s position seems to be that it was entitled to do so. This is profoundly disturbing. The government witnesses to date have admitted that the government did not feel bound by the plain language of the Emergencies Act. Their understanding of what constitutes a threat to national security was broader and included things the Act does not contemplate. In brief, to deal with a crisis, the government acted outside of the law.

Cara Zwibel is the CCLA Director of Fundamental Freedoms. She says the criteria for using the Emergencies Act is “not a suggestion – it is carefully prescribed law.”

With one week left to go in the inquiry, Zwibel says the evidence so far suggests “it will be very hard for the government to meet its burden.”