There are three ways to look at the Federal Court ruling, released Tuesday, that found the Justin Trudeau-led Liberal federal government was unjustified and unreasonable when it invoked the Emergencies Act to end the convoy crisis almost two years ago.
The first, of course, is legal, and this is an area I’m not particularly equipped to handle. I have read Justice Richard Mosley’s ruling and found it both surprising and not. I was surprised at what seemed a very narrow interpretation of danger, risk, and harm, and that may well be — as Mosley himself grants — overturned on the appeal the Liberals have already promised. But I was not surprised to see him focus on exactly the issues I have been wondering about myself ever since the Emergencies Act was used. Even those who disagree with Mosley (and, good Lord, there are a lot of them) should be able to agree that there were legitimate questions and concerns about the wording of the act — it relies on the Canadian Security Intelligence Service Act for some of its critical definitions, and the CSIS Act is quite strict on what constitutes a threat to the security of Canada. It’s a high bar, and it’s not wildly implausible that a legal expert would conclude the government failed to clear it.
There were also legitimate concerns — I had and still have them — as to whether the crisis, as serious as it was, could not have been handled under the existing laws of Canada, as the act explicitly requires. There was an unwillingness to take action, in Ottawa and at Queen’s Park, especially, but it has never been clear to me that an unwillingness and an inability are the same thing. Mosley had the lousy luck of being the guy who had to make a decision on that and put it into writing. I have the more comfortable job: I can hum and haw and wait for the courts to eventually settle this issue for good.
So that’s my legal analysis, for whatever it’s worth from a non-expert: mildly surprised by parts of it, but not at all surprised to discover what specific issues gave Mosley pause. I’ll leave the legal analysis be for now and wait for the appeal(s), but indulge me this parting observation: I have already seen genuine legal experts weighing in on this ruling, and while I admire their insight and perspective, I’ve yet to see someone who’d long felt the Trudeau government overreached disagree with Mosley’s ruling, and I’ve yet to see anyone who supported using the act laud Mosley’s ruling as wise and valid and persuasive. I most cherish those experts open to changing their minds. I can only presume they still exist.
The second way of looking at this is, of course, political. And, here, the news for the government is bad, but not too bad. The bad news comes in two forms: it is obviously and clearly bad for a sitting government to be found by a judge to have violated the civil rights of Canadians and to have used our most serious piece of emergency legislation inappropriately. It will embarrass and distract the government, it will embolden critics of the government, and it may well give the convoy movement itself, which continues to exist in a low-energy state, a shot in the arm. It’s also bad for the government simply in the sense of timing: the Liberals are just coming out of their cabinet retreat in Montreal, which was supposed to be a good-news event, a happy occasion for them to gather, bond, and roll out some cheerful stories and announcements that they hoped would begin to arrest their pretty spectacular collapse in the polls. Instead, they got this.
If I may repurpose an old joke: “Other than that, how was the cabinet retreat, Mr. Trudeau?”
But. And it’s an important but. Public opinion on the convoy is pretty thoroughly baked in, and it’s baked in lopsidedly in the government’s favour. There hasn’t been recent polling on it, but the public supported Trudeau’s use of the Emergencies Act at the time and in the months after, and by a massive margin.
Further, there were few undecideds — whether you were for or against the EA, most Canadians made up their minds a long time ago. Trudeau has all kinds of political challenges right now, but this isn’t likely to dramatically add to them. At this point, his decision to use the EA is probably roughly triple as popular as his government is overall. In a strange way, the Liberals may welcome the chance to remind Canadians that they used it. Even if not, the risk of significant further political damage from this seems limited. I’m trying to imagine one of the increasingly hard-to-find Trudeau supporters reading Mosley’s ruling, angrily slapping their palm down on a nearby tabletop, and shouting to anyone in earshot that they are done with that Justin fellow. I can’t really see this being a common reaction.
And that brings us around to the third issue this ruling brings, and it’s, to my mind, by far the most serious one. And that issue is, if I may summarize it somewhat glibly, “What the f*ck do we do now!?”
In a columnpublished here over a year ago, during the Public Order Emergency Commission hearings, I worried that we were heading to a worst-case-scenario outcome from Justice Paul Rouleau’s work. It would have been better, I wrote then, if the case for or against the use of the Emergencies Act was an absolute slam dunk: an emergency so serious that the use of the EA was unquestionably warranted. Barring that, it would have also been fine (well, you know what I mean) if the EA’s invocation had been an abuse of power so egregious that no one could defend it, and the government responsible doomed to an electoral reckoning for their shocking behaviour at the first opportunity.
What I worried we were going to get instead, I wrote, was a highly conditional, fraught ruling with no real clear lesson, and, worse, one where at least some of the government’s defence came down to information that had been kept from public view, either due to national security secrecy or cabinet confidentiality.
And that is basically exactly what we got: Rouleau did not have full access to the information the government claimed to have when it made its decision. And, while he concluded that using the act was justified, he did so only “reluctantly.” That was bad!
And now we have this, making it even more bad. Mosley ruled against the government, but fairly narrowly and also while noting that it wasn’t an easy call: he stated that the government’s hand might have been forced by the precise wording of laws in need of revisiting or revision and that he might have felt differently if he were an elected official and not a judge. He also added that his original view had been that the use of the act was justified and that he’d been gradually persuaded to the opposite view by the arguments put before him during the court process.
That’s admirable, in a way. It’s nice to know in this strange age that there are at least some people open to changing their minds. But between Mosley’s gradual and subtle move to believing that the Emergencies Act’s use was not justified and Rouleau’s reluctant acceptance that it was lies an impossibly narrow middle position, where, theoretically, the act could be properly used.
But no one knows what exactly that position or circumstance is, because, after two serious and thoughtful reviews, we have a split decision — and neither of them a particularly resounding one.
The Emergencies Act exists for a reason. It covers four broad categories of emergency. Two relate to international matters: wars or international crises that may lead to war, respectively. The other two broad categories cover domestic emergencies: major disasters at home or internal security crises (that last one being the category that was used two years ago). These are all extremely serious threats, and given the state of the world today, none of them seems particularly far-fetched or remote. It is not at all hard to imagine an emergency, or a series of them, developing in the near future that would arguably be captured by any one of those categories of severe crisis and threaten to overwhelm the ability of the government to respond using normal legal powers.
And right now, today, I’m not sure that this government, or any likely successor government, can really claim to know, based on the work of Justices Rouleau and Mosley, just what exactly their proper emergency powers would be, just how and when the Emergencies Act can be used or not used. This isn’t good. Until and unless Mosley’s ruling is appealed to a final conclusion, we exist in a state of legal uncertainty regarding the laws we’d turn to only in dire emergencies.
That is decidedly suboptimal. And we should all be able to agree on that, whether we prefer Rouleau’s finding or Mosley’s. A swift appeal isn’t just in the Liberals’ political interest — it’s clearly very much in our national interest. And the sooner we get final clarity, the better. Because, until then, we live in an increasingly unstable and dangerous world with unclear federal emergency powers. That’s unacceptable and unsustainable. I hope it is addressed as quickly as the Canadian court system allows. Tomorrow would be ideal.
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