Trudeau’s top bureaucrat tries to rewrite definition of law at inquiry

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Friday at the Emergencies Act inquiry, Canada’s top civil servant attempted to rewrite the law she was there to defend using to justify her actions.

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With Prime Minister Justin Trudeau and much of his cabinet appearing next week, we can expect more of the same.

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The main question the inquiry is charged with answering is whether the government was justified in invoking the act and granting themselves, and police, sweeping powers.

Janice Charette, clerk of the privy council, essentially Trudeau’s top bureaucratic lieutenant, claims they were justified but based on how the government felt about the situation rather than meeting the test set out in law.

The Emergencies Act is a clear and concise piece of legislation that details how and when the government can grant itself these extraordinary powers. The goal of those who wrote the act in the 1980s was to limit the government’s ability to suspend Charter rights and invoke a police state as was available under the previous War Measures Act.

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Yet on Friday, Charette and Deputy Clerk Nathalie Drouin, said time and again that they didn’t believe they needed to find a national security threat as defined in law to invoke the act. It was a shocking exercise in watching bureaucrats attempt to change the plain meaning of the words in the legislation to match the actions they recommended the government take.

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The Emergencies Act clearly states at section 3 that a national emergency is one that “cannot be effectively dealt with under any other law of Canada” and at section 16 that a public order emergency is one “that arises from threats to the security of Canada” and that a threat to the security of Canada “has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act.”

But that wasn’t good enough for Charette.

“There’s nothing in Section 16 which says the governor in council, who is the decision maker, who is being asked to make the decision has to ask CSIS if it’s okay,” Charette said.

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In some ways, she’s right, the governor in council – a fancy way of saying the cabinet – doesn’t have to ask CSIS if invoking the Emergencies Act is okay. But the invocation of that act is required to meet the definition of a threat according to the section 2 of the CSIS Act. That, in itself, should raise the view of CSIS on whether there is a threat to national security up to a higher level.

Yet, not only did we learn this week that RCMP Commissioner Brenda Lucki did not directly brief cabinet before they made the decision to invoke the Emergencies Act, neither did CSIS Director David Vigneault.

If you were invoking, never-before-used emergency legislation, wouldn’t you seek out the advice of the two leaders of the country’s top national security services?

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Most people would, but Justin Trudeau didn’t. His top civil servant Janice Charette didn’t ask for updates and neither Vigneault nor Lucki thought to speak up.

At one point in Friday’s testimony, Charette was asked if the full CSIS report which said there was no national security threat, as defined in law, had been put before the full cabinet. After humming and hawing for quite some time, Charette said that she couldn’t say – which means it wasn’t.

It is shocking beyond all belief that when the Trudeau cabinet was debating invoking the Emergencies Act they not only didn’t hear from leadership of Canada’s national security bodies – CSIS and the RCMP – the full cabinet wasn’t even given the report by CSIS to consider.

Next week we can expect more of this, a revisionist view of history, of what the Emergencies Act means, what it says and likely more evidence that the government, all the way up to cabinet, failed in it’s duties.

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