Transcript: Ryan Alford

My interview with the Canadian professor and constitutional law expert

Canada has, once again, made international headlines. The Federal Court has ruled the government’s invocation of the Emergencies Act, in response to the trucker protests, was illegal. My guest on this week’s program argued during the crisis that the government had done something that it had no constitutional power to do — and he joins me on the program this week to talk through this historic court decision.  

Ryan Alford is a constitutional law expert, a law professor at Lakehead University, and a senior fellow at the Macdonald-Laurier Institute.

This is an edited transcript for paid subscribers. You can listen to the interview for free here.

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TH: Ryan, welcome to Lean Out.

RA: Glad to be here, Tara.

TH: The Federal Court has ruled that the invocation of the Emergencies Act, in response to the trucker protests, was illegal and unreasonable. We will get to the decision. But first, some context for our listeners outside of Canada. Can you give us a brief explainer on what the Emergencies Act is, and what the government's rationale was for invoking it almost two years ago?

RA: The Emergencies Act was brought in in 1988 as a replacement for a statute called the War Measures Act, which had existed since the First World War. The notion being that when the country is in a state of war, there are crises that it can face that are outside of the scope of any other legislation. So, essentially it's about what kind of legislative framework you have for the government to respond quickly to things like foreign invasion or insurrection, problems of that nature. Its particular form in 1988 was a reaction to what happened, quite belatedly, in 1970. When the current Prime Minister Justin Trudeau’s father Pierre Trudeau used the War Measures Act during peacetime to send in the military into Quebec to deal with a terrorist incident.

TH: Walk us through what the government's rationale was for invoking it.

RA: Right. There were protests popping up across Canada, some of which were at border crossings, notably at Coutts and then at Windsor. And the question was: Were the local authorities, particularly the provinces, ready, willing, and able to deal with those problems? At the same time, there was a relatively intractable protest, a long, sustained, to some degree disorganized and disruptive protest in downtown Ottawa. So the question was: Did this constitute the kind of emergency that would call for the proclamation of a state of emergency under the Emergencies Act? And the federal government said yes. And that's the decision of the government, rather than a decision of the Canadian Parliament.

TH: One last background question. What did the government use those special powers for during the nine days that the Act was in effect?

RA: To some degree, that's the central question. Looking at it retrospectively, it doesn't seem that [the government] needed any of the extra powers that the Emergencies Act gave them. So, for instance, there was a lot of discussion — including at the public inquiry into the Emergencies Act — about the availability of tow trucks. The notion that, “Well, we couldn't otherwise get tow trucks to come and tow away particularly big rigs in downtown Ottawa.” That doesn't withstand any serious legal scrutiny. Because the police essentially have the power using their normal range of Criminal Code powers to compel people to cooperate with them in this respect. Not doing so would be a Criminal Code offence.

The other question — and this goes back a couple of decades — is why, when there was this occupation at a place called Oka, which was a very serious incident … why did the Canadian government at the time not need to use the Emergencies Act? Because they sent in the military. Now, a lot of people said, “Isn't that, in fact, more serious — that you use the military? We didn't want to do that. So instead we declared a state of emergency under the Emergencies Act.”

But unfortunately, it's the other way around. The federal government controls the military. They can use something called the National Defence Act, as they did during the Oka Crisis, to deal with the situation, without expanding the scope of the cabinet's own powers, or expanding the scope of the powers of the federal government vis-a-vis the provinces. When you see these discussions about how, “We don't want to use the military, or we don't want to use Criminal Code powers to compel people to tow trucks” — that's really damning on the question of whether or not they had a principled legal basis to invoke the Emergencies Act.

TH: You and I last spoke during the period that the Act was in effect. You had signed an open letter from lawyers rejecting the use of the Act. You maintained that the government had done something that it had no constitutional power to do. And that its actions represented “a layer cake of constitutional violations.” Let's now turn our attention to the Federal Court decision from Justice Mosley. Several groups applied for a judicial review, including the Canadian Civil Liberties Association — I also interviewed executive director Noa Mendelsohn Aviv during the Emergencies Act period — as well as the Canadian Constitution Foundation. And its executive director Joanna Baron has also been on this show. Now, at the time, the Prime Minister maintained that the invocation did not violate Charter rights, but Mosley has ruled otherwise. Can you walk us through the basic outlines of the judge's decision here?

RA: Unfortunately, we're back to the layer cake. In order to violate Charter rights, the government had to commit even more fundamental violations. The actual key point of the ruling is not that Charter rights were violated, but rather that the declaration itself was ultra vires. What you have is a situation where the government did something unconstitutional at this more fundamental level. Which is to say, to invoke its own emergency powers when it had no legal basis to do so. Having done that, it then put orders into effect that implicated Charter rights, more specifically freedom of expression.

Mosley was very clear on this. At the time when the emergency measures were passed, people made this point, and I have to refer to the litigation director of the Canadian Civil Liberties Association, Cara Zwibel, on this point, because it's a very trenchant point. If one person had shown up on Parliament Hill with a sign and that sign said, “I do not support the Emergencies Act” … Or, let's just say it's me and my sign is “There is no legal basis for the proclamation of the emergency” — I would be guilty of a Criminal Code offence that has just been created by the cabinet. 

That in itself, ultra vires, would also have been a clear violation of my right to freedom of expression in a way which is also not justifiable under the framework of Section One of the Charter. So, it infringes, and that limitation is not justifiable in a free and democratic society. That was one of the rulings that Justice Mosley made.

Other ones, including related to bank seizures say, “Okay, well you're seizing people's bank accounts in a completely arbitrary manner with no process whatsoever. That's also affecting their spouses, it's affecting their children.” And that's not a hypothetical. We had actual people in that litigation who were directly affected by bank seizures, by the freezing orders, who were testifying to this. This is a violation of Section Eight rights, and a very serious one. But more fundamentally, it didn't even have the legal power to do what it did, that then infringed the Charter.

TH: I am glad you raised freedom of expression because I did argue at the time that this was a threat to freedom of expression. This was a very unpopular position in the media at that time. We will come back to the media shortly, but I want to talk for a moment now about the government response. So Chrystia Freeland immediately came out and said the government would appeal Mosley’s decision. I want to just read some of her statement here: “I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision. The public safety of Canadians was under threat. Our national security, which includes our national economic security, was under threat.” What do you make of the government's response?

RA: It's shocking. So that phrase — “including our economic security” — that was discussed extensively at the Public Order Emergency Commission. The notion that you could retroactively insert economic security into the definition of a national emergency. Interestingly, the Public Order Emergency Commission was also charged … and this is a problematic element of its mandate, that at the same time it's supposed to evaluate whether or not there was a case for the invocation of the Emergencies Act, the government defined its mandate to give recommendations about whether or not the Emergencies Act should be expanded. And one of the things that was squarely on that agenda during what was called the policy phase of the Commission was whether it should be expanded to include economic security. So that, in fact, is an admission that it isn't already in there. And the government didn't get what they wanted. Justice Rouleau was even, I would say, even-handed on the question of whether or not that's a good idea — to expand it out that way. But there's no question that it wasn't in the currently prevailing definition of national security that the government was bound to respect when it brought the proclamation of the emergency.

Chrystia Freeland is trotting out this rationale of economic security, but people have said, “Think about the implications of this.” I would just point to the testimony of Professor Leah West at the Commission about this in particular. People want to look at that. Think about the implications of this. Essentially anything would then be covered by the possibility of a national emergency.

But they're admitting that they didn't have the rationale at the time when they relied upon this definition that includes explicitly economic security. And that's quite shocking. What they're saying, in fact, is, “We get to rewrite the law that defines our emergency powers whenever we see fit. And if courts don't like it, we'll just keep going until they agree.”

TH: I want to put some objections to this decision to you, now, that I have encountered so far this week. The first is referring to the Public Order Emergency Commission, which was triggered by the invocation of the Act, which you were granted standing at and participated in. So the argument is: This was incredibly comprehensive. It involved some 300 hours of testimony, including from our Prime Minister, and the release of thousands of pages of documents. Justice Rouleau concluded that it had been appropriate for the federal government to invoke the Act, though he did say that he came to that conclusion reluctantly. So, as this line of argument goes: One Liberal-appointed judge decided yes, the other Liberal-appointed judge said no — so, it's basically a wash. How do you respond to that thinking?

RA: I think we have to think about the function of a public inquiry and the function of judicial review. One metaphor you can use is focus — the clarity of the picture is often defined by the tightness of the focus. What was put before Justice Mosley in the Federal Court was precisely the issue of whether or not the government was acting within the range of its statutory authority under the Emergencies Act. Laser-like focus on that particular legal question. 

Unfortunately, it's not merely that you take a look at the Public Order Emergency Commission and say, “Well, who's making the decision?” et cetera. You take a look at what decision was called for to be made by the mandate of the Commission.

Because essentially, it’s not merely — or, to pick up that line of criticism, that someone gets to choose the judge of their own cause … which you do in a public inquiry, just formally, the Governor in Council appoints the Commissioner, right? So, the cabinet, just wearing a different hat says, “Someone says we should evaluate our own conduct. Well, let's find the person to do that.” And they go out and do that. But they also define the charge sheet against them. So when someone's charged with murder, it would be very nice if you chose the judge of your own murder trial. But it would be even nicer if you got to say, “The question is: Was it bad? Was it wrong in this situation?” George Costanza saying, “Is that frowned upon?” You had to just broaden it out. The question is: Is this justifiable? Is this acceptable? Is it reasonable under the circumstances?

Now, I understand that Justice Rouleau did approach it more legally. But the question is, as Commissioner, when he's also asked about the circumstances, about recommendations, about how the Act should be redefined — all of these things tend to filter this general determination.

So, people say, “Look at the scope of the findings of the Commission.” Well, that's the problem, right? Look at the breadth of it. Look at the depth of it. I would counterpose that — and I would point people to the ruling of Justice Mosley, which is quite easy to read, even for a layperson, I would say at least comparatively, with respect to many court judgements. It has a very precise focus. And that is its strength.

TH: Another point I'm seeing circulating is that Mosley himself said in the decision that we now know way more than we did at the time. The fog of war defence. Does that hold any weight with you?

RA: If you're talking about the conclusions for the Public Order Emergency Commission, to which I think Justice Mosley wants to be sensitive. Justice Rouleau spent a tremendous amount of time taking testimony, working on the volumes of the report. That kind of determination is a fair one. That it was difficult to make a decision under these circumstances.

But. The more important determination is whether or not they violated the Constitution and exceeded their statutory authority. That's what Mosley is actually opining on. Everything else — lawyers have a term called obiter, short for obiter dicta. It's something you just say in passing, or besides the point. There's a lot of that in Justice Rouleau's remarks. But it tends to be in the context of a Commission report, where he has this free-ranging mandate to discuss these things. 

Justice Mosley, you can much more easily distinguish between what we call the ratio, or the reasons for decision — everything that had to go into the logical framework that comes to that particular conclusion about constitutionality and legality. And then you can say, “Well, other things are obiter.” It's very nice to point to some obiter and say, “There was some fog of war for the government.” But look, what we're talking about now is accountability for having gotten it wrong. And there should be some. 

TH: Would that also apply to his comment — you see this circulating online right now too … “People have not fully read his decision. If they read it, they would see that he says he may have invoked the Act himself.” Would that same logic apply to that comment?

RA: It's clearly obiter, because the question of whether or not a judge in that situation would have made the same decision is not him saying this is what defines legality or constitutionality. I think he was very deferential to the government in their factual determinations. Something that's quite important when you consider issues like appeal. Which as you said, Minister Freeland is talking about that at this very moment. 

Additionally, I would just say: Go through and read it, and figure out for yourself what you think is more important. The comments about whether or not it was difficult to make this decision under the circumstances? Or whether the government violated a statutory authority and infringed the Constitution. You have to make your own decision as to what you think is more important in your society — that you have this grace for politicians who have a difficult job, or whether or not they're held accountable for when they do that job in a way that infringes the Constitution.

TH: I want to spend a moment now on the media. Mosley said in his decision that he was actually leaning the other way before he examined all the evidence. He pointed to arguments of the Canadian Civil Liberties Association and the Canadian Constitution Foundation in changing his mind. This is a win for civil liberties advocates in this country, I do believe that. But it does seem, to me, like a loss for the media. Which I think — with some notable exceptions — tended to uncritically accept the government narrative on these protests. This is something that Justice Rouleau actually wrote about for the Commission. He talked about how the truckers were victims of misinformation, as well as spreaders of it. Victims in the sense that media coverage often amplified this small extremist element. One of the examples he gives is the apartment arson allegations, which we now know were not connected to the protests at all. In your view, as someone who participated in the Commission, who has followed this very closely, what role do you think the media contributed to this?