Emergencies Act inquiry lawyer calls out an 'absence of transparency' as solicitor-client privilege invoked
The legal opinion the government received on triggering emergency powers is protected
Justice Minister David Lametti has defended his government's decision to invoke the Emergencies Act to deal with anti-public health measure protests last winter — but wouldn't expand on the legal opinion the government received, citing solicitor-client privilege.
That caused some frustration on Wednesday among the lawyers appearing before the Public Order Emergency Commission inquiry — including one representing the commission itself.
"Commission counsel are in a conundrum here," said lawyer Gordon Cameron close to the end of Lametti's testimony before the inquiry.
Cameron said the commission's lawyers have "attempted to find a way to lift the veil that has made such a black box of what has turned out to be a central issue before the hearing."
"We just regret that it ends up being an absence of transparency on the part of the government in this proceeding."
WATCH | Commission lawyer pushes back against government's use of solicitor-client privilege at inquiry:
The inquiry is investigating the government's decision to deploy special emergency powers to deal with the protests. The legal interpretation of the never-before-used Emergencies Act has become a key point as the commission works to determine whether the federal government was justified in invoking the law.
Before Lametti's testimony got underway, a lawyer for the federal government informed the inquiry that it won't be waiving solicitor-client privilege, the legal principle that protects communication between lawyers and their clients.
"I wanted to put on the record that the Government of Canada continues to assert and maintain all of its claims of solicitor-client privilege in respect of all legal advice and opinions," Andrea Gonsalves said.
"We will be objecting to, and Minister Lametti will be refusing to answer, all questions that would delve into areas of solicitor-client privilege."
Gonsalves urged other lawyers to tailor their questions during cross examination to avoid objections.
"OK, well it will be an interesting manoeuvre," said Commissioner Paul Rouleau.
That didn't stop lawyers from trying to get Lametti to react to comments Canadian Security Intelligence Service (CSIS) Director David Vigneault made earlier this week.
CSIS head says he had broad interpretation of act
Vigneault said that while didn't believe the self-styled Freedom Convoy constituted a threat to national security as defined by the CSIS Act, he did support invoking the Emergencies Act.
The top intelligence official testified he sought a legal interpretation from the Department of Justice and that it was his understanding that the Emergencies Act definition of a "threat to the security of Canada" was broader than the one in the CSIS Act.
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Under the Emergencies Act, the federal cabinet must have reasonable grounds to believe a public order emergency exists — which the act defines as one that "arises from threats to the security of Canada that are so serious as to be a national emergency.
The act then points back to CSIS's definition of such a threat — which cites serious violence against people or property "for the purpose of achieving a political, religious or ideological objective," espionage, foreign interference or the intent to overthrow the government by violence.
"You didn't personally believe that section two of the CSIS Act was any different in the Emergencies Act, did you?" Brendan Miller, a lawyer representing some of the convoy organizers, told Lametti during questioning today,
"You're asking me to give legal advice," Lametti replied. "You're asking for advice that I might have given to the Governor In Council."
WATCH | Lametti defines the Emergencies Act for public order emergency commission:
Lametti spoke to commission lawyers in September; he again invoked solicitor-client privilege during that conversation. He did tell them that, in his view, the two laws do not interact in a way that would "effectively provide a single national security agency with a veto on the decision to invoke a public order emergency."
A summary of that conversation was entered into evidence Wednesday.
"He emphasized that cabinet was working with imperfect information, with threats that may or may not have materialized, and that it had a responsibility to factor in these gaps in information," said the interview summary.
"Lametti concluded that it was the government's responsibility to determine whether a threat to the security of Canada existed. He emphasized his view that Cabinet made the right decision."
Cameron said that given the inquiry's tight timeline — Rouleau's final report is due to Parliament in February — commission counsel won't be challenging solicitor-client privilege because it could end up in court.
"Now, if we believed that that prevented you from assessing the basis on which the government came to its conclusion we would ask you for a ruling on it, but we are confident that there are other ways that we can get the same information on the record, or get the same result through legal arguments," he said, addressing Rouleau.
Lametti says tank text message was a joke
Lametti said his office began to look into the Emergencies Act around January 30, soon after convoy trucks first rolled into Ottawa and parked near Parliament hill. He testified that he wanted the Department of Justice to be prepared.
"I knew that we had to begin thinking about it, whether or not it was ever going to be an option," Lametti said.
"The worst scenario would be something explodes, and we are not ready to use it because we haven't done the kinds of consultations necessary, or asked the appropriate questions to the appropriate people in order to get it done. So this is me being prudent."
WATCH | Cabinet minister grilled on texts sent during convoy protest:
Text messages entered into evidence Wednesday showed Lametti and Public Safety Minister Marco Mendicino discussed how to clear the anti-COVID-19 protests — and sometimes joked about it.
Lametti today described the texts as banter with a colleague and friend.
"There will be occasional attempts at bad humour," he said.
On Feb. 2, Lametti wrote to Mendicino that "you need to get the police to move."
"And the CAF if necessary," he added.
"Too many people are being seriously adversely impacted by what is an occupation. I am getting out as soon as I can. People are looking to us/you for leadership. And not stupid people. People like Carney, Cath, my team."
The texts entered into evidence didn't give full names.
"How many tanks are you asking for," Mendicino wrote back. "I just wanna ask Anita how many we've got on hand.
"I reckon one will do!" Lametti texted back.
During cross examination, Lametti said he he wasn't calling for the deployment of the Canadian Armed Forces.
"This is meant to be a joke among two friends," he said.
'Sloly is incompetent,' Lametti told Mendicino
Another set of texts with Mendicino showed Lametti offering harsh words for then-Ottawa police chief Peter Sloly.
On Feb. 4, Mendicino texted that police have the authority to enforce the law on protesters.
"They just need to do exercise it and do their job," texted Mendicino.
"I was stunned by the lack of a multilayered plan," responded Lametti. "Sloly is incompetent."
Lametti testified Wednesday that at the time, he had to move out of his Ottawa residence and was worried about his staffers getting harassed by protesters.
"I was frustrated, I have to admit," he said. "It is frank."
Lametti said he'd soften his language toward the former chief with the benefit of hindsight.
Alghabra questioned about trucker mandate
On Feb. 23, Liberal MP Greg Fergus, who represents an Ottawa-area riding, texted Lametti about the decision to revoke the Emergencies Act.
"But would it have been more appropriate if we waited until Friday? 44 hours after vote seems unseemly," Fergus texted, referring to the vote in the House of Commons which saw the majority of MPs vote to deploy the Emergencies Act.
The Senate was in the midst of debating the act but withdrew the motion shortly after Trudeau announced the decision to revoke the act.
"No we needed to stay ahead of the NDP and senators were saying that they would vote against based on their view that there was no longer an emergency," Lametti wrote back.
Defence Minister Anita Anand also took questions Wednesday. She testified that she was convinced the military was not an appropriate tool to use in response to the protests.
"Our country's soldiers are not police officers," she said. "They are not trained in crowd control. They are not trained in protest management."
During his time in front of the commission, Transport Minister Omar Alghabra was asked about the government's decision to require that Canadian cross-border essential workers — including truckers — show proof of vaccination at a port of entry.
The protests that paralyzed parts of downtown Ottawa and blocked border crossings last winter started as a movement opposed to that mandate before turning into a larger protest against pandemic public health measures and the Liberal government.
Hatim Kheir, a lawyer for the Justice Centre for Constitutional Freedoms, asked if the federal government considered repealing the mandate in the face of the protests.
Alghabra said the government made decisions during the pandemic based on what it believed would protect Canadians.
"So, the government should never change its policies in response to outcry from protesters?" Kheir asked.
"Now, if you're asking me, should government change its policy because people break the law in expressing their opposition? I'd say no," he said.
"Should the government listen to [the] public and consider the sentiment of [the] public? Of course."
The day started with a presentation on what the commission has heard from the public. More than 9,000 Canadians wrote in to the inquiry to share their often divergent views on the protests.
With files from Richard Raycraft