(Version française disponible ici)
In February 2022, the federal government declared a controversial national state of emergency after a convoy of protesters from across the country blocked access to downtown Ottawa and key border crossings in Ontario, Manitoba and Alberta. While the “spark” for the protests was opposition to vaccine mandates, there was evidence that some of the protesters were connected to right-wing extremist groups, and there were reports of racism, sexism and homophobia associated with the convoy.
There were also concerns that some of the protesters were seeking to undermine the country’s democratically elected government. Protest leaders demanded to form a new government with the Governor General and the Senate (a constitutional non-starter), and a large cache of weapons was later found at the homes of participants in the Alberta border blockade. Several politicians tried to balance expressing support for the convoy and endorsing their mission while also condemning unlawful behaviour.
By the time the formal declaration of emergency was issued, the protesters and their trucks had been occupying Ottawa for three weeks, and there was mounting criticism about the ineffectiveness of the police response. The declaration was in place for nine days before being rescinded and as required by legislation, a commission was struck. Its mandate was to examine “the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” One year later, in February 2023, Paul Rouleau delivered his report, which spans four volumes and several hundred pages. The commissioner concluded that the government was justified, if narrowly, in declaring the emergency.
The report contains recommendations that touch on a number of different policy areas. It deals with important questions of law, such as whether the Emergencies Act was lawfully invoked, and whether constitutional rights were respected. But the report also implicates issues of federalism, multi-level governance, national security and intelligence, policing, the financing of social movements, misinformation and disinformation, public health and the protection of critical infrastructure.
This Policy Options series dives into the findings of the Rouleau commission report and considers what we can learn from this moment in Canadian history. Prior to February 2022, the Emergencies Act had never been invoked, and its procedures were therefore never tested against the cut-and-thrust of real-life events. How robust was the legislative framework, which was designed to both allow the executive to respond to an emergency, as well as prevent abuses of power? What use did the police make of their emergency powers? How did Canada-U.S. relations influence the decision whether to declare an emergency? And what happens next in terms of the continued challenges to the government’s decision to invoke an emergency and possible law reform? All of these questions are considered, inspired by a one-day conference held at the University of Ottawa in March 2023.
The series kicks off with a piece by Carissima Mathen, who examines the implications of the public order emergency for the Charter freedom of peaceful assembly. She notes that freedom of peaceful assembly is a qualified freedom – only “peaceful” assemblies are protected – and that it is also subject to reasonable limits. Section one of the Charter permits the state to limit rights and freedoms in ways that can be demonstrably justified in a free and democratic society. In evaluating the actions of public authorities during the convoy, it is important not to treat freedom of peaceful assembly as being absolute. To do so would be to distort the public conversation about the scope of this freedom, and the limits that can legitimately be placed on freedom of assembly when a protest becomes highly disruptive.
In his contribution, Paul Daly looks into the ongoing court challenges to the federal government’s decision to declare a public order emergency, and the regulations promulgated pursuant to that declaration. He suggests that the report is only the first chapter in a much longer process of reckoning with the public order emergency. The courts may well reach a different conclusion about whether the declaration was lawful and consistent with the Charter. He also notes that the legal issues addressed by Rouleau and the courts are not identical, and that this too could produce different outcomes.
Next, Nomi Claire Lazar reflects on what Canada’s recent experience with invoking the Act might teach us about future declarations of emergency. She notes that there are several weaknesses in Canada’s overall emergencies infrastructure that require an overhaul as this country prepares for the complex, multivariate emergencies of the future, such as inevitable climate crises. In particular, she points to weak provincial emergencies frameworks, challenges in coordinating across jurisdictions, the way that emergencies legislation is drafted to respond to discrete, time-limited rather than the more fluid emergency situations that we may see in the future and the limitations of the existing categories of emergency.
Vanessa MacDonnell (a co-author of this introduction) analyzes how Canada-U.S. relations affected the decision to declare a public order emergency. She explains that American politicians’ concerns about the economic impact of the border closures played a significant role in the decision to declare a public order emergency. This may have been partly intended to communicate to the Americans that Canada was willing to take the steps necessary to preserve its most important trading relationship. She also argues that more attention needs to be paid to the role American financing played in supporting the convoy’s activities. The movement of funds across the border suggests that American extremist groups are willing to provide material support to encourage the spread of their ideology in Canada.
Our newsletter about the public service.
Nominated for a Digital Publishing Award.
Michael Kempa examines two recently released commission reports – the Rouleau commission report and the Mass Casualty Commission report from the province of Nova Scotia – and considers what lessons can be learned from reading them together. Both have important implications for how policing is organized and conducted in this country. He concludes that action is needed on “the two essential fault lines in Canadian policing” – the breakdown in police oversight and accountability mechanisms, and a policing culture that continues to be shaped by a lack of professionalism and problematic biases and stereotypes.
Eric Champagne explores the multi-level governance issues that arise in managing this type of crisis in his piece on the complex relationship between the city, the province and the federal government during events that Rouleau (borrowing from Leah West) termed a “failure of federalism.” He also explores corporate governance issues in the relationship between the Ottawa Police Services Board and the Ottawa Police Department. The commissioner observed serious problems of coordination, communication and misunderstanding between the police department, local elected officials and city administrators. Champagne raises several questions. Why was the Ottawa Police Services Board not able to play a key role in the risk analysis and management of this crisis? Could it have played a more critical role in resolving this crisis? His article concludes that the governance structures were not up to the task and that lessons must be learned.
Each commission of inquiry is an opportunity to learn more about Canada’s political and administrative systems. The contributors to this series set out to understand the historical events that occurred in January and February 2022, and to draw lessons from the Rouleau commission report. In the current social and political environment, other social crises could reappear sooner rather than later. Academics have an obligation to contribute to an in-depth reflection on these events, and to continue to shine a light on these issues so that the next time an emergency occurs, public authorities are better positioned to react.
This article is part of the Lessons from the Rouleau Commission special feature series.