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Feds still considering whether 'imperfect' Emergencies Act needs an update

Police enforce an injunction against protesters near Parliament Hill on Feb. 19, 2022. (Evan Mitsui/CBC - image credit)
Police enforce an injunction against protesters near Parliament Hill on Feb. 19, 2022. (Evan Mitsui/CBC - image credit)

The federal government says it's still considering whether the Emergencies Act needs to be updated to sharpen the definition of what constitutes a threat to national security.

On Thursday, Public Safety Minister Dominic LeBlanc published a six-month progress report updating Prime Minister Justin Trudeau on the recommendations coming out of last year's public inquiry.

While LeBlanc said in the report that many departments and agencies continue to review Commissioner Paul Rouleau's findings, he did not say one way or another whether the government will act on some of the more contentious recommendations.

Earlier this year, Rouleau released a highly-anticipated report that found Trudeau's government met the "very high" threshold needed to invoke the controversial legislation in February 2022 to address the occupation of downtown Ottawa by the convoy protest.

But Rouleau, an Ontario Court of Appeal justice, also wrote that the protests that gridlocked downtown Ottawa in early 2022 constituted an emergency that could have been avoided. He made 56 recommendations to improve the way police forces respond to large protests and how they communicate with each other, and suggested amendments to the Emergencies Act itself.

One of the sticking points during the six weeks of testimony last year was whether the government had met the legal threshold to invoke the act.

The act says cabinet must have reasonable grounds to believe a public order emergency exists — which the Act defines as one that "arises from threats to the security of Canada that are so serious as to be a national emergency."

The act defers to the Canadian Security Intelligence Service's definition of threats — which includes serious violence against persons or property, espionage, foreign interference or an intent to overthrow the government by violence.

Canadian Security Intelligence Service Director David Vigneault responds to a question from counsel as he testifies at the Public Order Emergency Commission, Monday, Nov. 21, 2022 in Ottawa.
Canadian Security Intelligence Service Director David Vigneault responds to a question from counsel as he testifies at the Public Order Emergency Commission, Monday, Nov. 21, 2022 in Ottawa.

Canadian Security Intelligence Service Director David Vigneault responds to a question from counsel as he testifies at the Public Order Emergency Commission on Nov. 21, 2022 in Ottawa. (Adrian Wyld/The Canadian Press)

CSIS Director David Vigneault testified that he supported invoking the Emergencies Act, even if he didn't believe the self-styled Freedom Convoy met his agency's definition of a threat to national security.

In his final report, Rouleau argued that the definition of "threats to the security of Canada" in the CSIS Act should be removed from the Emergencies Act.

"The commission's final report noted that while the act is in some respects imperfect or outdated, it is firmly anchored in the principles of the rule of law and public accountability," wrote LeBlanc in the report to Trudeau.

"Nonetheless, the recommendations related to the act and its proposed amendments are being given thoughtful consideration as part of the government response, which will outline a path forward for the act and help ensure that the federal government is better positioned to respond to future similar events of national significance."

RCMP considering ways to improve protest policing 

Rouleau wrote at length in his final report about police dysfunction in the capital during the convoy protest. Twenty seven of his recommendations focus on policing. Several address improvements to how law enforcement agencies work together and how intelligence is gathered and shared.

In response, LeBlanc pointed to three reports — either in the works or recently completed —  that likely will shape the RCMP for years to come: his government's ongoing review of the RCMP's contract policing program, an upcoming report by the National Security and Intelligence Committee of Parliamentarians on federal policing and last March's Mass Casualty Commission report.

That commission studied the 2020 mass shooting in Nova Scotia and made 130 recommendations, including measures to improve the way the RCMP manages crises.

LeBlanc said in the report the RCMP is "considering" ways to improve policing during public order events and is working with the Criminal Intelligence Service Canada, a group made up of about 400 law enforcement agencies, "to explore whether and how intelligence on serious criminality associated with public order events can be jointly managed and retained."

Police enforce an injunction against protesters, some who have been camped in their trucks near Parliament Hill for weeks, on Feb. 19, 2022.
Police enforce an injunction against protesters, some who have been camped in their trucks near Parliament Hill for weeks, on Feb. 19, 2022.

Police enforce an injunction against protesters near Parliament Hill on Feb. 19, 2022. (Evan Mitsui/CBC)

Transport Canada is consulting with the provinces, municipalities and Indigenous groups to identify critical trade transportation corridors and infrastructure and establish protocols to protect them from interference in the future, wrote LeBlanc.

The Department of Finance is reviewing the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and how cryptocurrencies fit in, said LeBlanc in the report.

The Emergencies Act report also laid blame on Ontario Premier Doug Ford's government over its "reluctance" to act.

Rouleau wrote that greater involvement would have let the public know they had "not been abandoned by their provincial government in a time of crisis."

LeBlanc wrote to the prime minister that many of Rouleau's recommendations need support from the provinces and territories.

"Given the specific recommendations for Ontario, I have written to the Solicitor General of Ontario seeking to better understand Ontario's intentions to consider the recommendations from the Commission's report directed at the province, and to offer collaboration on areas of mutual interest with officials," LeBlanc wrote.

A spokesperson for LeBlanc said he has not yet received a response but the letter was sent only recently.

While Rouleau called on the government to identify within a year the recommendations it accepts, LeBlanc's report said the government does expect to present a "comprehensive" response by February 2024.

Rouleau found most measures 'appropriate'

Trudeau invoked the Emergencies Act on Feb. 14, 2022 to end the protests that had blocked downtown Ottawa's streets for nearly a month.

Many of the protesters were angry with the government's response to the COVID-19 pandemic, including vaccine requirements. They parked large vehicles on key arteries in the capital city and honked their horns incessantly for days.

It was the first time the Emergencies Act had been triggered since it was created in 1988.

By invoking the law, the federal government gave law enforcement extraordinary powers to remove and arrest protesters — and gave itself the power to freeze the finances of those connected to the protests.

The temporary emergency powers also gave authorities the ability to commandeer tow trucks to remove protesters' vehicles from the streets of the capital.

Rouleau found that most of the measures put in place by the federal cabinet were "appropriate and effective," but he said elements of the emergency economic measures fell short.

For example, the commissioner said, there should have been a "delisting mechanism" for frozen accounts.