Thread by @NChartierET

🧵 On... you guessed it #POEC and the #EmergenciesAct. If you're a jurist and I'm wrong, let me know.

The core issue is whether the threshold was met to use the blunt instrument.

From what I understand, the EA has a double test that needs to be met to declare an emergency. 1/

For a "public order emergency," there needs to be a threat as defined under section 2 of the CSIS Act.

2a) espionage & sabotage; 2b) foreign influenced activities; 2c) threat of or serious violence motivated by ideology (ie not plain homicide); 2d) violent overthrow of govt. 2/

As well it must meet section 3 of the EA, which mentions a situation that exceeds provincial capacity, that threatens sovereignty, and that no normal law can tackle. 3/

We've heard an array of interpretations from federal officials testifying last few days.

CSIS Director said protests didn't meet a threat to national security, but he advised for the act to be invoked based on broader unspecified circumstances. 4/

The National Security and Intelligence Advisor said that the CSIS Act was too narrow to assess threats and she invented "national security threats" that should be considered, along with naming threats already covered by the CSIS Act (IMVE). 5/

Public Safety Minister Mendicino gave a definition of the threshold being met by mixing and amalgamating parts of section 2 of the CSIS Act and section 3 of the EA. 6/

Emergency Preparedness Minister Bill Blair said there was a threat of serious violence, hence meeting CSIS 2c (hence contradicting CSIS), but couldn't give a specific example, instead mentioning that people felt threatened and intimidated. 7/

The Deputy Clerk of the Privy Council Nathalie Drouin said the ground for invocation was mainly 2c of the CSIS Act (contradicting CSIS). 8/

RCMP Commissioner did not comment on the threshold for invocation, but she said the protests were not a national security threat. She had said on the eve of invocation that not all tools had been exhausted. 9/

An important opinion was given today when Justice Minister Lametti chimed in, since he and his department would have given advice to other ministers and agencies on the legal threshold for invocation. He claimed solicitor-client privilege, so we're in the dark. 10/

What he did say is this: “What Parliament did not do with the creation of the Emergencies Act was delegate the decision-making to CSIS.”

“The decision-making power is always in the hands of cabinet.”

Now what are the implications of this? 11/

1. If the professional and hopefully unbiased opinion of CSIS is not taken into consideration to evaluate threats under its own mandate, who provides the opinion? There are intelligence analysts in PCO and lawyers everywhere, but... 12/

If they come to a different conclusion than CSIS with roughly the same set of facts, the position is questionable and becomes open to challenge. Like the challenge Clerk of the Privy Council Janice Charette suspected would come after providing her advice to the PM to invoke. 13/

2. Another implication is an erosion of the rule of law, with the use and consideration of factors that are not on the books, which leads to decisions being made on how things are felt or perceived rather than through applicable statutes. 14/

If section 2 of the CSIS can be interpreted adequately by cabinet, PCO, etc. and CSIS can be openly circumvented, what of section 3 of the EA?
Were provinces unable to deal with the situation? No EA powers were used anywhere else than Ottawa.
And for Ottawa you have... 15/

The OPS and the OPP that have said the protest would have been cleared without the EA (granted they don't want to seem helpless), and the RCMP and OPP Commissioners who said not all tools had been exhausted.
(And please let's not get into tow trucks). 16/16 END