To Win Public Confidence in Emergencies Act Inquiry, Transparency Is Vital, Says the Law’s Creator

Former defence minister Perrin Beatty, who drafted the Emergencies Act in the 1980s to replace the controversial War Measures Act, says transparency is crucial in the government’s inquiry into the invocation of emergency powers earlier this year.

The inquiry may be able to make its conclusions without interfering with cabinet confidence, but it will be up to the Liberal government to be transparent enough to convince Canadians that the measures were needed, Beatty said in a recent interview with The Canadian Press.

“If you don’t have [transparency], then people will always have their suspicions that something has been withheld,” he said.

“‘Trust us’ is not enough if you want public confidence at the end of the day.”

Beatty noted that transparency was a key issue with the War Measures Act, the predecessor of the Emergencies Act, prompting a need for the new incarnation.

“The government said in essence, ‘if only you knew what we knew, you’d support the invocation of the act,'” Beatty said of the War Measures Act.

“That was very much in my mind at the time that we brought in the new act. To ensure public confidence, you had to have the greatest level of transparency possible.”

Beatty’s efforts are now being tested, as Prime Minister Justin Trudeau’s government launches an inquiry into its use of the Emergencies Act, while the government has not committed to releasing the details of the closed-door discussions that led up to the act being invoked.

Mandatory Inquiry

Trudeau invoked the Emergencies Act on Feb. 14 in response to the Freedom Convoy demonstrations, which called for an end to federal COVID-19 mandates and restrictions and the upholding of Canadians’ charter rights and freedoms.

The three-week-long protests saw massive convoys of the truckers and supporters gathering at the national capital starting in late January. Parallel protests and border blockades at several key Canada-U.S. border crossings were also launched in solidarity with the trucker convoy but had largely ended by the time the act was invoked.

The emergency measures gave the police sweeping additional powers, including physically removing the remaining protesters. The act also allowed financial institutions to freeze the accounts of protestors or convoy supporters that donated money to their cause, without a court order.

The Department of Finance confirmed on May 3 that the agency didn’t verify if financial institutions applied the measures properly, and instead relied on their “good faith” in freezing the accounts.

Beatty said in creating the Emergencies Act, the government set out to create a new law with more checks and balances to curb potential abuses of power, and one of those checks was the mandatory inquiry, which must be launched within 60 days of the state’s emergency declaration.

On April 25, the government appointed Ontario Appeal Court Justice Paul Rouleau to lead the inquiry and report back on lessons learned about how to avoid using the act in the future.

The announcement in the foyer of Parliament’s West Block kicked off a series of back-and-forths between government ministers, members of the opposition, and media, about the purpose of the inquiry and how much information Rouleau would have access to.

Public Safety Minister Marco Mendicino would not say if the inquiry would judge whether the government was justified in invoking the act in the first place, but Beatty said that was exactly the purpose of including a mandatory inquiry as part of the law.

“Was invoking the act the right thing to do in the first place? Did it meet the high threshold that was anticipated, that was required under the act?” Beatty said.

On May 3, Mendicino was again asked whether the government intended to waive cabinet confidence–secret discussions intended only for ministers–for the sake of the Emergencies Act inquiry.

“We’ve afforded Justice Rouleau with the power to compel witnesses, information, and documents and, in fairness, we’ve contemplated that he would get access to classified information,” he said, adding that his government will work with the judge “so that we can be transparent.”

Rouleau, however, hasn’t asked for any classified information so far.

Before being replaced with new legislation, the War Measures Act was used three times in history: during the October Crisis, and the First and Second World Wars.

The old legislation allowed for human rights abuses, like the incarceration of Japanese Canadians during the Second World War, Beatty said.

By contrast, the goal of the Emergencies Act was to figure out how to protect the civil rights of Canadians even under the direst of circumstances and therefore included protections like an expiry date on the government powers, a requirement for parliamentary approval, recourse options through the courts, and the mandatory inquiry.

“The only thing that I can say, as the author of the act, is that wherever you have extraordinary powers, there must be extraordinary accountability,” Beatty said.

The Canadian Press contributed to this report.