The below text is a transcript of Sujit Choudhry’s opening remarks at a public hearing of the Rouleau Commission on October 13, 2022. Sujit Choudhry and Janani Shanmuganathan are representing the CCF at the Rouleau Commission and in our separate challenge against the federal government’s use of the Emergencies Act.
Good Morning Commissioner Rouleau,
My name is Sujit Choudhry. I am counsel for the Canadian Constitution Foundation in this Commission. My co-counsel is Janani Shanmuganathan. We are both on Zoom.
The Canadian Constitution has been granted standing jointly with Professor Ryan Alford. Reserve a minute at end for him and would kindly ask that you recognize him when I conclude.
I have four points to make today in my introductory remarks.
First, I would like to introduce the Canadian Constitution Foundation or CCF. The CCF is a legal charity which is dedicated to defending fundamental freedoms in Canada, particularly the freedom to think, believe, and express controversial or dissenting ideas and opinions. The CCF would like to publicly express its appreciation to you, Justice Rouleau, for granting it standing before the Commission.
Second, the CCF sought standing to assist the Commission because it will address questions core to our mandate. The Emergency Proclamation and Emergency Measures Regulations severely restricted the rights to freedom expression, assembly and association. The Emergency Economic Measures Order chilled freedom of expression, by deterring donations to organizations opposed to the public order emergency, such as the CCF. For the CCF, the fundamental question is whether the condition in the final clause of section 3 of the Emergencies Act was met – that the Ottawa protests and border blockades could not be effectively dealt with under any other law of Canada, federal, provincial or municipal. This clause codifies the requirement that the Emergencies Act is a last resort, which can only be triggered when all other legal tools fall short.
Third, although the Commission will necessarily focus on recent events, a sense of history should frame how it approaches this task. The Emergencies Act is a successor to the discredited War Measures Act, which was abused during the FLQ Crisis in Quebec. The Emergencies Act – especially the last resort clause – was drafted to ensure that the Act could never again be used by a federal government against its political opponents.
For 34 years, the Emergencies Act was never used. The public order emergency of 2022 was a historic first. But now that the glass has been broken on the Act it can be used again. The Act was used by this government against individuals protesting vaccine mandates. But a future government of a different political stripe could use the Act in response to protests against pipelines or climate change. When the Commission asks hard questions about the Act’s use in 2022, the Commission must also focus on the Act’s potential misuse in the future and protect the right to protest, parliamentary democracy, and federalism. What the Commission says matters not just to Canada, but globally, where the use of emergency powers is on the rise. The world will be watching our work.
Fourth, the CCF would like thank Commissioner Rouleau and the Commission counsel for taking on this enormous task of public service, in an extremely tight timeline, on an issue of singular and momentous significance. We look forward to assisting you in any way possible.
Thank you.
