The architect of the Emergencies Act is concerned that Parliament’s hyperpartisan atmosphere will prevent it from providing proper oversight on the unprecedented use of the legislation, as the reckoning begins on the government’s decision to invoke it in the first place.
“What I regret in looking at the situation today is how poisoned with partisanship Parliament has become, which then undercuts the ability of Parliament and of parliamentary committees to actually contribute to the legislative process,” said Perrin Beatty, who introduced the Emergencies Act in 1987 while serving as defence minister in Brian Mulroney’s Progressive Conservative government.
“I’m worried that the environment in which we’re operating today is not the environment in which I brought in the act,” Beatty told the Star in an interview this week.
The federal government used the act for the first time on Feb. 14, in response to the so-called Freedom Convoy protests in Ottawa’s downtown core and blockades at key border crossings. Prime Minister Justin Trudeau declared an end to the public order emergency on Wednesday.
A joint House-Senate committee will soon review how the government used the powers it assumed, and a final report must be presented within seven sitting days of the emergency declaration being lifted. That clock starts ticking on Monday when the House of Commons resumes, but the process has been stalled by parties bickering over the structure of the committee.
Like Beatty, national security expert Wesley Wark believes the committee is destined to be marred by partisan bickering, particularly between Liberals and Conservatives.
“People are not going to park their political views at the door of a parliamentary committee in a way which must happen with an inquiry,” Wark said.
An inquiry into the circumstances that led to the declaration of emergency is also required under the act. It must be called within 60 days, and its findings must be delivered within one year.
Experts say the inquiry should answer questions about what led the government to invoke the Emergencies Act, whether its use was necessary, and how a government might deal with a similar situation in the future without having to trigger the act.
The Prime Minister’s Office did not answer the Star’s questions about how the inquiry will ultimately take shape, but it will likely proceed in one of two ways.
One is a judicial inquiry, a more “politically neutral” pathway that tends to be viewed by the public as more trustworthy and objective, Wark said.
“But judicial inquiries are hampered by the tendency to go very slowly at their issues,” he said, adding that a final report would need to be produced faster than usual to meet its deadline.
The inquiry could also be led by other “independent-minded” individuals, Wark said, including people like retired judges, retired politicians or those working in the private sector. While such an inquiry would proceed more quickly, it might be perceived as more partisan, he said.
Another national security expert said she hopes that the inquiry finds good reason for invoking the act and determines that it wasn’t done arbitrarily.
“That is going to be important for the Canadian public to move past this and have confidence in the government and its decision here,” said Leah West, an assistant professor at Carleton University’s Norman Paterson School of International Affairs.
“And if it turns out it wasn’t necessary, that’s really important because it will help us understand perhaps ways it could have been avoided, alternatives to the act, or if the act itself is insufficient to deal with modern security threats.”
Wark said that while he agreed with the invocation of the act, it will be critical for the inquiry to closely examine its modernization, given that it was conceived during “an entirely different time.”
“The government had to get creative in using the Emergencies Act to meet the circumstances that they were faced with,” he said, pointing its decisions to target crowdfunding platforms and announce other financial measures not outlined in the legislation.
“But more broadly, the main weakness of the Emergencies Act other than its age, is that it doesn’t recognize that in a 21st-century world. One of the major threats that a country like Canada faces in terms of security threats are threats to critical infrastructure,” Wark said.
While the Emergencies Act requires the government to call the inquiry, it doesn’t specify whether the inquiry should be public or if it will be governed by the Inquiries Act. West believes the inquiry would fall under the Inquiries Act, whereby commissioners would have the power to compel the production of documents as well as witnesses to testify under oath.
For Paul Cavalluzzo, a constitutional lawyer who served as commission counsel to the Walkerton and Maher Arar inquiries, the degree to which the inquiry will be public is a key question.
“Since the declaration relates to public order, it means that there must have been a threat to the security of Canada — and when you’re dealing with threats to the security of Canada, you’re dealing, for the most part, with top secret evidence, which will not be public,” Cavalluzzo told the Star.
“It just seems to me that this inquiry is going to be fraught with difficulties as to what will be heard in secret and what will be heard in public.”
Beatty said his impression is that the government would have “enormous discretion in terms of what it could do,” but said his “strong advice” is that the inquiry be entirely independent with a broad scope.
“The goal in drafting the act from start to finish was to create as much accountability and scrutiny as possible,” he said, “and if you want people to be satisfied that the right decisions were made, then you have to have processes that are completely transparent.”
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