Rouleau Report: The evidence contradicts the conclusion

“I have concluded that in this case, the very high threshold for invocation [of the Emergencies Act] was met.  I have done so with reluctance.” Thus concludes Justice Paul Rouleau in a report exceeding 2,000 pages. The grounds for his reluctance are very strong. In fact, the evidence supports his reluctance more than it supports his conclusion.

For the declaration of a public order emergency to be justified, Justice Rouleau states that all of the following must be met:

1. There was an urgent and critical situation of a temporary nature that seriously endangered the lives, health, or safety of Canadians;
2. The emergency arose from activities directed toward the threat or use of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective;
3. The emergency was of such proportions or nature that it exceeded the capacity or authority of a province to deal with;
4. The emergency could not be effectively dealt with by any other federal law; and
5. The emergency required the taking of special temporary measures.

The evidence placed before the Public Order Emergency Commission in the fall of 2022 fails to support these legal requirements.

First, while some Ottawa residents were certainly inconvenienced by the peaceful protest, these inconveniences do not constitute a “serious” endangerment of the lives, health, or safety of Canadians as a whole.

Second, while the protesters did seek a political or ideological objective (to end mandatory vaccination policies and lockdowns), there was no credible evidence showing “the threat or use of serious violence against persons or property.”

Third, if Ontario failed to deal with the protest appropriately, this does not mean that the province lacked “capacity or authority” to manage the protest. As Justice Rouleau puts it: “The response to the Freedom Convoy involved a series of policing failures. Some of the missteps may have been small, but others were significant, and taken together, they contributed to a situation that spun out of control.” Government incompetence is not the same as government lacking capacity or authority.

Fourth, the municipal (Ottawa) and provincial (Ontario) governments failed to use the law enforcement tools that were available to them: (1) issuing tickets for noise, parking, and traffic violations; (2) removing and storing trucks that impeded or blocked the normal and reasonable movement of traffic on roads; and (3) obtaining an injunction; using Ontario’s Emergency Management and Civil Protection Act whereby police can order individuals to stop disrupting ordinary economic activity, to disperse, and to move their vehicles.

Fifth, police could have issued criminal charges against protesters for mischief, intimidation, disobeying a court order, causing a disturbance, or loitering … if protesters had committed any of these crimes. But prior to the invocation of a “national emergency” on February 14, 2022, there were virtually no criminal charges laid against Freedom Convoy participants.

In short, the lives, health, and safety of Canadians were not seriously endangered. There was no “threat or use of serious violence against persons or property,” other than Antifa vandals who cut the airlines and slashed the tires of the truckers’ vehicles. The federal, provincial, and municipal governments did not lack the “capacity or authority” to manage the protest, but instead, they failed to make use of the tools that were in their toolbox. 

How and why then did Justice Rouleau conclude that a peaceful protest in one city could constitute a “national emergency”? This will remain forever a mystery, but his lengthy report drops some hints.

Throughout his report, Justice Rouleau asserts repeatedly that those opposed to Covid restrictions were heavily influenced by “misinformation” and “disinformation.” That governments and media could spread accidental “misinformation” and deliberate “disinformation” is not seriously considered as possible.

When referring to Covid as “an unprecedented public health crisis” Justice Rouleau obviously accepts the narrative of governments and of government-funded media, ignoring the fact that Covid’s impact on humanity differs little from the Asian Flu of 1957–1958 and the Hong Kong Flu of 1968–1969. What was “unprecedented” was not Covid but a brand new experiment of locking down entire populations of healthy people for months on end.

Justice Rouleau casually uses terms like “violence,” “harassment,” and “intimidation” without defining them or explaining what such conduct might refer to, specifically. He complains about “unlawful” and “non-peaceful” conduct without making specific reference to actual Criminal Code violations. This loose use of language ignores the crucial distinction between criminal conduct and conduct that causes some people to feel upset because they are seeing or hearing opinions that they strongly disagree with.

Justice Rouleau appears to ignore the fact that a few days after the truckers arrived in Ottawa, they themselves imposed a mandatory quiet time from 8 p.m. to 8 a.m. daily. They, too, did not want to hear the air horns when they were trying to sleep. While asserting that “no one person or group spoke for all protesters, or even most of the protesters” and that “there was no true central organization of the protests over the course of the three weeks,” he still faults Chris Barber and Tamara Lich for somehow failing to stop the horn-honking of some individuals who disregarded the truckers’ self-imposed restriction.

Claiming the situation in Ottawa to have been unsafe and chaotic, Justice Rouleau cites the potentially dangerous blockage of emergency lanes on Kent Street. Yet he does not fault government for failing to use available law enforcement tools to clear that street. In other words: government incompetence somehow justifies using the Emergencies Act to bring a violent end to a peaceful protest.

Justice Rouleau complains about an unknown number of “controversial” and “extreme” individuals who espoused “reprehensible” views, as though this is legally relevant. In a country like Canada, which is supposed to be based on the rule of law, the only thing that matters about protesters is their behaviour, not whether their opinions are popular or unpopular.

Justice Rouleau also explains that he was deeply troubled by the non-violent protests that “targeted” Prime Minister Trudeau’s campaign bus during the 2021 election. Some of them were (gasp!) “anti-vaccine” protesters who held flags and banners, used bullhorns, yelled, and in some cases even heckled Mr. Trudeau. Like the presence or absence of people with “extreme” views, this is legally irrelevant to whether a violent crackdown on the peaceful Freedom Convoy protesters in 2022 was justified or not. 

Fortunately, Justice Rouleau has stated that “nothing in the report is in any way binding on the courts that may hear legal challenges to the use of the Act.” This provides helpful clarity for the Federal Court, which is hearing an action seeking a declaration that the Prime Minister acted illegally when he declared that a peaceful protest in one city constituted a “national emergency.”

John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca), which supports a Federal Court action seeking a declaration that the government acted illegally when declaring a national emergency.