Rouleau’s Overreach: (Mis)interpreting Section 63 of the Emergencies Act

Abstract

Commissioner Paul Rouleau’s conclusion that “the very high threshold for invocation [of the Emergencies Act] was met” unsurprisingly dominated coverage of his final report. This paper argues that, in opining on the scope of the government’s authority, Commissioner Rouleau exceeded his own. Section 63(1)’s text, context, and legislative history all confirm that the purpose of the mandatory public inquiry is to find facts concerning “the circumstances that led to the declaration” and “the measures taken”, not to answer questions of law or of mixed law and fact. With judicial review applications underway in the Federal Court that will determine whether proclaiming a “public order emergency” under section 17(1) was warranted, Commissioner Rouleau’s intervention invited a risk of duplication and a multiplicity of proceedings. It also established a problematic precedent for future commissioners who, under the Act, need not be current or former judges, or even lawyers, but who will generally be appointed by the same government that invoked the Act. This paper makes the case for why Commissioner Rouleau ought not to have pronounced on the “threshold,” even in the face of widespread expectation from the public and from inquiry participants that he would do so.