There are practical ways to reform the act to ensure that it does not get abused by future governments
In our view, the invocation of the Emergencies Act was unlawful. The act requires that it only be used when all other legal measures fall short — i.e., it is a last resort. However, it is becoming more and more clear that there were many other legal tools available to police and the federal government, under existing federal, provincial and municipal law.The NP Comment newsletter from columnist Colby Cosh and NP Comment editors tackles the important topics with boldness, verve and wit.
Based on the evidence provided by police witnesses, it has become manifestly clear over the course of the Rouleau commission hearings that existing criminal laws, not to mention provincial emergency laws, would have been sufficient to end the protests in Ottawa. Thus far, witnesses have only said that the emergency was “extremely helpful,” but not absolutely necessary. The act’s requirement that it be a tool of last resort needs to be given teeth.
7. Broadening access to cabinet confidences and expediting judicial review of national security and cabinet privilege: Judicial challenges to the public order emergency have been slowed down because the federal government has claimed that key pieces of evidence cannot be made public due to national security or cabinet confidentiality. Moreover, under the Canada Evidence Act, once governments assert privilege over federal cabinet confidences, courts cannot review those materials. The Canada Evidence Act should be amended to permit courts to set aside claims of cabinet privilege if the circumstances warrant.
The Emergencies Act only calls for the creation of an inquiry into the circumstances that led to the declaration of emergency. It does not spell out the powers of the inquiry. Fortunately, the federal government appointed Justice Paul Rouleau pursuant to the Inquiries Act, which gives him investigative powers, including the power to summon witnesses. The act should be amended to provide that the inquiry occurs under the Inquiries Act.
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