As I read the Emergencies Act, the Cabinet decision to invoke that law, turns on whether there were reasonable grounds to believe that the conditions for doing so existed, at the time that it chose to act. NOT that those conditions did, in fact, exist; but rather whether there was a reasonable basis for believing that they did. …
As I read the Emergencies Act, the Cabinet decision to invoke that law, turns on whether there were reasonable grounds to believe that the conditions for doing so existed, at the time that it chose to act. NOT that those conditions did, in fact, exist; but rather whether there was a reasonable basis for believing that they did.
This is a bit like the police power to do a personal search if they reasonably believe a crime has been committed, even though the proof of that allegation will be sorted out, later, and, in a criminal setting, beyond a reasonable doubt.
In other words, the EA trigger engages a reasonableness test, not a correctness test; moreover it is one in which both the affirmative and the negative answers to the question (should we act or not?) rest on degree of speculation, along with the meaning of some words that are open to contextual interpretation. And of course a factual context is not static, but dynamic and evolving and subject to uncertainty.
It is therefore entirely possible for Cabinet to have been mistaken and still to have acted both properly, and in good faith and, of course, in a way that was effective and beneficial. Especially if the EA is read as a prophylactic tool that is intended to avoid harm, not just a reaction to what has already happened. That is, relying on the precautionary principle, that surfaced, so often, during the pandemic.
Because of course, the political game (and to some extent the medial game) is about assigning or avoiding blame, and has very little to do with an objective assessment of the public interest.
But the issue at hand is: If CSIS thinks that they would not have had reasonable grounds to cite a threat to national security to tap a convoy organizer's phone, why did cabinet think it had reasonable grounds to invoke the Act?
I'm not sure that the answer is Ottawa was wrong to invoke the act. But it's a tricky issue.
I take no position on the point. But it is not at all unusual for a form of words in one one statute or legal context, to mean something different, or be used in a different way, in another legal context. To take a simple example, you can be an "employee" for some purposes and not for others. Words take their meaning from the context and purpose for which they are used, so it is not wrong to pay attention to the setting. And yes, it is tricky, particularly because, as I said, it requires a degree of speculation about what is likely to happen if you do nothing or if you do something. And because, as here, the government is empowering OTHERS to take action, or not, in accordance with THEIR judgement about whether the new tools are needed. Finally, there is the psychological impact of the declaration, which was obviously significant, in the way that a mere injunction from a Judge was not.
As I read the Emergencies Act, the Cabinet decision to invoke that law, turns on whether there were reasonable grounds to believe that the conditions for doing so existed, at the time that it chose to act. NOT that those conditions did, in fact, exist; but rather whether there was a reasonable basis for believing that they did.
This is a bit like the police power to do a personal search if they reasonably believe a crime has been committed, even though the proof of that allegation will be sorted out, later, and, in a criminal setting, beyond a reasonable doubt.
In other words, the EA trigger engages a reasonableness test, not a correctness test; moreover it is one in which both the affirmative and the negative answers to the question (should we act or not?) rest on degree of speculation, along with the meaning of some words that are open to contextual interpretation. And of course a factual context is not static, but dynamic and evolving and subject to uncertainty.
It is therefore entirely possible for Cabinet to have been mistaken and still to have acted both properly, and in good faith and, of course, in a way that was effective and beneficial. Especially if the EA is read as a prophylactic tool that is intended to avoid harm, not just a reaction to what has already happened. That is, relying on the precautionary principle, that surfaced, so often, during the pandemic.
Because of course, the political game (and to some extent the medial game) is about assigning or avoiding blame, and has very little to do with an objective assessment of the public interest.
You're quite right.
But the issue at hand is: If CSIS thinks that they would not have had reasonable grounds to cite a threat to national security to tap a convoy organizer's phone, why did cabinet think it had reasonable grounds to invoke the Act?
I'm not sure that the answer is Ottawa was wrong to invoke the act. But it's a tricky issue.
I take no position on the point. But it is not at all unusual for a form of words in one one statute or legal context, to mean something different, or be used in a different way, in another legal context. To take a simple example, you can be an "employee" for some purposes and not for others. Words take their meaning from the context and purpose for which they are used, so it is not wrong to pay attention to the setting. And yes, it is tricky, particularly because, as I said, it requires a degree of speculation about what is likely to happen if you do nothing or if you do something. And because, as here, the government is empowering OTHERS to take action, or not, in accordance with THEIR judgement about whether the new tools are needed. Finally, there is the psychological impact of the declaration, which was obviously significant, in the way that a mere injunction from a Judge was not.