Yesterday, Justice Rouleau, Chair of the Public Order Emergency Commission (POEC), announced that its hearings will be postponed until October 13, due to unexpected surgery he must suddenly undergo.

While we certainly wish Justice Rouleau a speedy recovery, this unfortunate delay of accountability and transparency spurred TBOF to take a closer at the Emergencies Act, POEC’s establishment, and some of the actors involved.

As we all tragically recall, the current Liberal Government invoked the Emergencies Act on February 14, setting martial law and suspending constitutionally guaranteed freedoms across all of Canada. The Liberals claimed police forces requested the additional powers in order to deal with the Freedom Convoy and that Canada’s existing laws were insufficient to deal with the situation. These were all lies of course. The RCMP, OPP, and Ottawa Police have all testified before Parliament that they never requested the Act be invoked.

As the Act’s invocation had to be ratified by the Senate, and it was looking likely that the Senate would vote against the Government’s clear overreach, the Government revoked the Act’s application on February 23.

The Act requires its use to be immediately followed by the establishment of both an independent Commission and a special parliamentary joint committee to review the invocation’s appropriateness.

What kind of accountability can we expect from these two review mechanisms?

Well, the parliamentary joint committee includes participation from Liberal MPs, who belong to the minority Government that invoked the Act in the first place. The committee also includes NDP MPs, who, right after the Act’s use, deemed the Liberal government sufficiently aligned with their own principles that they agreed to support them in a de facto coalition government until 2025. Finally, we have the Conservative MPs, who predominately stayed silent throughout the pandemic as the Government enacted patently discriminatory and unconstitutional health measures, enabling the conditions that gave rise to Freedom Convoy in the first place.

In fairness, these committee proceedings have exposed significant holes in the Government’s justification, they ultimately apparently seem to compel the Government to tell the truth. As evidenced by Deputy Prime Minister Freeland’s testimony, and that of various senior public servants, government witnesses can evade, obfuscate, or simply outright refuse to answer questions or provide documents. Information which they state justifies they actions, but which they apparently cannot necessarily recall or disclose. Moreover, it is unclear just what the committee can even do in terms of sanction.

The POEC is much more nuanced and interesting. At first blush, it seems more robust, independent, and capable of compelling Government testimony. Upon taking a closer look, the deck seems stacked against holding any Government meaningfully accountable for invoking the Act, let alone reprimanding them.

The first issue is the Act authorizes the Government that invoked the Act to be the one that constitutes the Commission and its Terms of Reference.

You read correctly. The folks who have to defend their use of Canada’s most dire legislative instrument, get to pick the judges and tell them what questions to ask and issues to consider. For example, the Commission has been instructed to examine the following:

(A) the evolution and goals of the convoy and blockades, their leadership, organization and participants,

(B) the impact of domestic and foreign funding, including crowdsourcing platforms,

(C) the impact, role and sources of misinformation and disinformation, including the use of social media,

(D) the impact of the blockades, including their economic impact, and

(E) the efforts of police and other responders prior to and after the declaration

After reading that, you would be forgiven if it was the Freedom Convoy being investigated and not the Government. Only perhaps item (E) seems to orient the Commission to consider the Government’s judgement and justification.

Delving further, what about the Commission itself?

The Commission, strangely, consists of a single member, former judge Paul Rouleau. Justice Rouleau has served as Justice for various courts in Ontario and the Territories.

More interestingly, Justice Rouleau was once a partner at the now defunct law firm, Heenan Blaikie (specifically, their Montreal office). The firm had strong connections to the Liberal Party and is where former Prime Minister Pierre Trudeau settled after retiring from government. Several of Justice Rouleau’s appointments have been made by provincial or liberal governments.

Former UK Chief Justice Gordan Hewart once said, “justice must not only be done but must manifestly and undoubtedly be seen to be done”.

The standard for public conflicts of interest is not just that there, objectively, is no conflict, but that a reasonable person would also not perceive a conflict to exist. The tolerance for what may be a “perceived conflict” is often proportionate to the stakes at hand. The more sensitive or vital the issue, the more important that even perceived conflicts are either avoided or steps taken proactively to minimize them.

It is unsettling that the Commission consists of a single individual who just so happens to have strong historical ties to not just the governing party, but the current Prime Minister’s father’s old law firm. Perhaps a panel of three Commissioners from more diverse backgrounds would have been prudent. Perhaps the Government invoking the Act should not be selecting the Commissioner in the first place!

Regardless of this potentially real or perceived bias, Justice Rouleau seems fairly constricted with the direction and to the extent he can review the “appropriateness and effectiveness” of the Government’s conduct. He seems to have been predominately pointed toward the hundreds of thousands of Canadians that participated in or supported the Convoy, rather than the Government who invoked the Act.

Finally, Justice Rouleau has no mandate to sanction or reprimand the Government in any way shape or form. Apart from perhaps a few days or weeks of bad press, POEC’s mandate is simply to provide Parliament with a report. This report can include suggestions on how the Act could be modernized. POEC has no mandate to suggest what should be done to the Government, or any of the key cabinet ministers, who invoked the Act in the first place.

And so, in reality, POEC and the Parliamentary Committee seem to be two sides of the same coin. Potential for spectacle and embarrassment for the Government, but no real accountability or potential for sanction or immediate change.

This is not accountability.

This is Government stacking the deck and giving us the false sense of security that we live and are governed under fair system where the rule of law applies equally to everyone. If you or I make a misstep, we do not get to pick our judges or set the questions they get to ask us.

And given the stakes of what is emerging weekly as the consequences and unscientific justifications for governments’ restrictions and mandates for the past 2.5 years, can we really expect much different if any other issues are scrutinized by the very government’s that invoked by incumbents, or new governments that would have to wear the fault of their predecessors?

This is precisely why Taking Back Our Freedoms announced in June that it is collaborating with various other civic advocacy organizations across Canada to establish a National Citizens’ Inquiry (NCI).

The NCI will be truly independent from governments, and completely citizen-led and citizen-funded. Some initial information is available here, and detailed information, including the NCI’s terms of reference, will be announced in the near future as TBOF and its partners continue to develop the initiative.

Government will never hold itself accountable. It is up to all of us as citizens, and the NCI will enable all Canadians to participate and share their stories with how governments’ COVID-19 policies and conduct may have impacted them.

You can support the NCI’s development by donating here.