Areas of
Practice

Rouleau Inquiry gives standing to law groups, ‘Freedom Convoy’ organizers but not Conservative Party

Tuesday, June 28, 2022 @ 4:46 PM | By Cristin Schmitz


The independent commission reviewing Ottawa’s declaration of a public order emergency during COVID-19 vaccine mandate protests last winter has granted standing to 20 of the 39 individuals and groups who asked to participate — including legal and civil liberties groups and “Freedom Convoy” organizers, but not to the Conservative Party of Canada (CPC).

Citing the need to keep the proceedings independent and non-partisan, Public Order Emergency commissioner Paul Rouleau, an Ontario Court of Appeal judge (who was a federal Liberal partisan before he joined the bench 20 years ago) concluded that the CPC does not meet the two-pronged threshold of having a “substantial and direct interest in the subject matter” of the public inquiry nor would it “provide necessary contributions to the public inquiry.”

On June 28, the commission also announced that the minority Liberal federal government has agreed to the commissioner’s request that it not claim cabinet privilege over the documents that cabinet considered in making its decision to declare a public order emergency and implement special measures for dealing with that emergency in February 2022.

The commissioner dismissed the CPC’s application for full standing, as well as funding, at the public inquiry, which is reviewing the Liberal government’s declaration of a public order emergency last February.

Justice Rouleau noted that there is another significant accountability and review mechanism: the Special Joint Committee of the Senate and House of Commons on the Declaration of Emergency — a body on which the Conservatives sit, and actively participate.

“There is good reason for a separation between these mechanisms,” he wrote. “Both ought to operative independently from one another.”

Justice Rouleau echoed the views of commissioner Dennis O’Connor in the 2000 Walkerton Inquiry, who was then also sitting on the Ontario Court of Appeal, that “there is a danger” that a political party’s participation in a public inquiry could be seen by the public as politicizing the inquiry in a partisan way, and that it “is generally undesirable to use public inquiries to have political parties advance their positions or policies. There are other appropriate arenas for them to do so.”

Justice Rouleau explained he is not saying that political parties should never be granted standing in public inquiries — every application must be assessed on its own merits. “However, the existence of the Joint Committee, and the concerns about avoiding partisanship in the inquiry process are, in my view, important factors that weigh against granting standing when assessing the CPC’s application.”

The CPC pointed to its particular role as the official opposition in the Commons (and its possible future role as government), and identified a range of important factual and public policy issues on which it could contribute.

However, commissioner Rouleau said “it is not clear to me how its interest differs from that of the public generally, and I am not satisfied that the CPC has a direct or substantial interest in those matters.”

He noted the inquiry makes its report to Parliament, and it is only then that political considerations might come into play. “I do not believe, however, that they have a role to play in this inquiry.”

Commissioner Rouleau also said his views are similar to those expressed by Justice John Gomery as commissioner for the 2004 Sponsorship Inquiry, who stated that it was not at all apparent that a political party, in that case one opposed to the party in power, “has a direct and substantial interest of its own in these questions, other than its partisan interests. These play an essential role within the political system but should not form part of the commission’s proceedings. ... On the other hand, to the extent that the applicant’s interests are not purely partisan and are those of the public interests, they are not distinct from those of every citizen concerned to understand the matters which are the object of the inquiry.”

Commissioner Rouleau did not accept the CPC’s contention that the party’s own reputational interests are engaged by the inquiry, given that critical comments were made against it in the Commons by another political party. “The comments that the CPC relies on were comments made in the course of partisan debates in the House of Commons,” he remarked. “Such debates do not, in my view, give rise to the sort of reputational concern that would justify standing in a public inquiry.”

In his 41-page decision, Justice Rouleau granted full or limited standing to:
  • Law enforcement groups, comprising the Ottawa Police Service, Ottawa ex-police chief Peter Sloly, the OPP, the Canadian Association of Chiefs of Police and the National Police Federation.
  • The governments of Canada, Alberta, Saskatchewan and Manitoba.
  • Nine community and business associations in Ottawa representing residents and businesses in the capital “which can provide broad insight” into questions around the convoy’s impact on them.
  • Industry and trade organizations, i.e. the Insurance Bureau of Canada, the Calgary Chamber of Commerce.
  • The National Crowdfunding and Fintech Association.
  • NGOs and civil society: including the Canadian Constitution Foundation and Lakehead University law professor Ryan Alford; the Justice Centre for Constitutional Freedoms, the Canadian Civil Liberties Association; and the Criminal Lawyers Association (Ontario) jointly with the Canadian Council of Criminal Defence Lawyers.

Commenting on the application from the defence bar, Justice Rouleau said the use of police and criminal law powers are likely to play an “important role” in the inquiry.

Among those who were denied standing were 11 individual applicants who were present at, supported or participated in the protests in Ottawa, who the commissioner determined did not have a sufficiently “substantial and direct” interest in the subject matter of the inquiry, nor would they provide necessary contributions to the inquiry.

Commissioner Rouleau also denied standing to a number of applicants personally impacted by the events. Including some who had their personal bank accounts frozen.

However, he granted full standing to some organizations representing convoy participants, protesters and other affected people, which he said are “able to do so from a broader, more representative perspective.”

This includes Convoy organizers, such as Tamara Lich, Chris Barber, Daniel Bulford and others, including the Freedom 2022 Human Rights and Freedoms not for profit corporation — several of whom had their assets frozen pursuant to measures taken under the Emergencies Act.

Commissioner Rouleau noted that the organizers played a key role in the events that led to the declaration of emergency, and can shed light on the inquiry’s mandate to examine “the evolution and goals of the convoy and blockades, their leadership, organization and participants.”

The inquiry plans hearings in September and October. Its mandate is to “examine and assess the basis for the federal government’s decision to declare a public order emergency, the circumstances that led to the declaration, and the appropriateness and effectiveness of the measures selected by the government to deal with the then-existing situation.”

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613 820-2794.