There will likely be a test of the Emergencies Act in court — specifically, were the regulations and orders made and implemented in a way that infringed Canadians' Charter rights? The answer will almost certainly be "yes." Then, of course, comes the s.1 Oakes test: Were those infringements reasonable…
There will likely be a test of the Emergencies Act in court — specifically, were the regulations and orders made and implemented in a way that infringed Canadians' Charter rights? The answer will almost certainly be "yes." Then, of course, comes the s.1 Oakes test: Were those infringements reasonable and proportionate given the circumstances? I think the answer will likely be "yes," although certain aspects of those orders may have been written too broadly.
Now the other test is whether the government met the threshhold set out in the act. That's really where this Commission is going to focus on. So, yes, they have to have reasonable grounds to believe there was a threat to the security of Canada. But if this Commission finds that those reasonable grounds were not met, then that's an issue. So, at the risk of getting a bit convoluted, it doesn't matter if Ottawa was 'reasonable' in its quest to make the case it had reasonable grounds to believe. Either the threshhold was met, or it wasn't.
Further complicating matters: We don't actually know how to assess that treshhold. CSIS has the benefits of decades of case law from the Federal Court. We've never invoked this act before, so we don't actually know how to assess that threshhold.
I agree with you on this. But I don't think we can know how a Court would interpret the elastic escape clause in section 1 of the Charter, nor, of equal importance, whether any remedy would flow from such over-reach. Remember that the ES is empowering and it does not, necessarily, oust the normal rules that apply in a civil or criminal proceeding. A breach of the Charter doesn't necessarily lead to a remedy for the aggrieved felon, who is otherwise guilty of a civil or criminal wrong.
My bet is that by the end of the day, the partisan focus will shift to attacking the enquiry process and the Judge himself. And everyone will forget the real issue in this case: which is about the rule of law and the ability of partisans to cause disruption and economic loss to others, with relative impunity, winning partisan applause along the way. And of course, what to do about it when it happens again, as it most certainly will.
Because in my view, all that has happened here, is that the illegal tactics of aboriginals (like in Caledonia, or railway blockade in 2020), or green progressives, have, in this instance, been embraced by a populist cause, which was then seized upon by opportunistic politicians.
And the lesson remains what it was been since 1995: so long as you are (mostly) non-violent, you can unlawfully impose economic and social costs on other citizens and businesses and you will almost certainly get away with it.
Just keep shouting “freedom!” and referring to that magic talisman the “Charter of Rights” ; and your illegal nuisance will become protected speech and insurance against having to compensate those whom you were damaged and discomfited.
That was the lesson for the local Ottawa citizens who started to organize themselves to block access to their neighbourhoods, in order to prevent their occupation by protesters, because the local police would not do so. And it seems to me that that erosion of trust is a very dangerous development.
Since the Ipperwash enquiry (which was mentioned in this one), police have privileged keeping the peace over enforcing the law, which does not properly protect the rights of bystanders and until that balance is struck, I suspect we will see more of these problems. Because "the right" has recognized the utility of the tactices pioneered by "the left".
We saw the same development in the labour relations world when plant occupations became the tactic of choice to avoid the closure of floundering firms.
So I think there's two things to that.
There will likely be a test of the Emergencies Act in court — specifically, were the regulations and orders made and implemented in a way that infringed Canadians' Charter rights? The answer will almost certainly be "yes." Then, of course, comes the s.1 Oakes test: Were those infringements reasonable and proportionate given the circumstances? I think the answer will likely be "yes," although certain aspects of those orders may have been written too broadly.
Now the other test is whether the government met the threshhold set out in the act. That's really where this Commission is going to focus on. So, yes, they have to have reasonable grounds to believe there was a threat to the security of Canada. But if this Commission finds that those reasonable grounds were not met, then that's an issue. So, at the risk of getting a bit convoluted, it doesn't matter if Ottawa was 'reasonable' in its quest to make the case it had reasonable grounds to believe. Either the threshhold was met, or it wasn't.
Further complicating matters: We don't actually know how to assess that treshhold. CSIS has the benefits of decades of case law from the Federal Court. We've never invoked this act before, so we don't actually know how to assess that threshhold.
Clear as mud, eh?
I agree with you on this. But I don't think we can know how a Court would interpret the elastic escape clause in section 1 of the Charter, nor, of equal importance, whether any remedy would flow from such over-reach. Remember that the ES is empowering and it does not, necessarily, oust the normal rules that apply in a civil or criminal proceeding. A breach of the Charter doesn't necessarily lead to a remedy for the aggrieved felon, who is otherwise guilty of a civil or criminal wrong.
My bet is that by the end of the day, the partisan focus will shift to attacking the enquiry process and the Judge himself. And everyone will forget the real issue in this case: which is about the rule of law and the ability of partisans to cause disruption and economic loss to others, with relative impunity, winning partisan applause along the way. And of course, what to do about it when it happens again, as it most certainly will.
Because in my view, all that has happened here, is that the illegal tactics of aboriginals (like in Caledonia, or railway blockade in 2020), or green progressives, have, in this instance, been embraced by a populist cause, which was then seized upon by opportunistic politicians.
And the lesson remains what it was been since 1995: so long as you are (mostly) non-violent, you can unlawfully impose economic and social costs on other citizens and businesses and you will almost certainly get away with it.
Just keep shouting “freedom!” and referring to that magic talisman the “Charter of Rights” ; and your illegal nuisance will become protected speech and insurance against having to compensate those whom you were damaged and discomfited.
That was the lesson for the local Ottawa citizens who started to organize themselves to block access to their neighbourhoods, in order to prevent their occupation by protesters, because the local police would not do so. And it seems to me that that erosion of trust is a very dangerous development.
Since the Ipperwash enquiry (which was mentioned in this one), police have privileged keeping the peace over enforcing the law, which does not properly protect the rights of bystanders and until that balance is struck, I suspect we will see more of these problems. Because "the right" has recognized the utility of the tactices pioneered by "the left".
We saw the same development in the labour relations world when plant occupations became the tactic of choice to avoid the closure of floundering firms.