LIVE OMAR ALGHABRA PUBLIC ORDER EMERGENCY COMISSION INQUIRY Day 29 - November 23, 2022
Federal government's legal advice on Emergencies Act remains a secret
Federal government says it's maintaining all of its claims of solicitor-client privilege
Justice Minister David Lametti today 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.
Lametti is testifying before the Public Order Emergency Commission inquiry 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 clarified 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."
WATCH | Lametti defines the Emergencies Act for public order emergency commission
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.
- Have questions about the Emergencies Act inquiry? Send them to us in an email to ask@cbc.ca.
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 | AG to convoy lawyer: 'I'm not sure you've understood the point'
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."
Canadian Constitution Foundation lawyer Sujit Choudhry has argued the solicitor-client privilege shielding that legal opinion should be lifted.
"In fairness to the commission's process, the federal government should waive solicitor-client privilege and publicly release this opinion," he said in a media statement Monday.
'Sloly is incompetent,' Lametti told Mendicino
Text messages entered into evidence Wednesday showed Lametti and Public Safety Minister Marco Mendicino discussed ways to clear the anti-COVID-19 protests.
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.
Minister
of Justice and Attorney General of Canada David Lametti appears as a
witness at the Public Order Emergency Commission in Ottawa, on
Wednesday, Nov. 23, 2022. (Sean Kilpatrick/The Canadian Press)
"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!" says Lametti.
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.
Defence Minister Anita Anand and Transport Minister Omar Alghabra will also answer questions before the inquiry today at the Library and Archives building in Ottawa.
The day started with a presentation on what the commission has heard from the public.
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