This article originally appeared in the National Post.
By Aaron Wudrick, November 28 2022
Now that Canadians have been subjected to six straight weeks of witness testimony at the Public Emergency Order Commission – the statutorily required inquiry called following the Trudeau government’s invocation of the Emergencies Act this past February – they might be forgiven for asking why we even bothered.
That’s because we’re not much closer to being able to understand the legal basis for the government’s use of the Act than we were before it started, other than to learn that there is apparently a legal opinion, somewhere, that says they were justified in doing so.
Who wrote that opinion? What does it say? Sorry, that’s covered by solicitor-client privilege. The absurdity of the situation was such that when Justice Minister David Lametti testified earlier this week, Commissioner Paul Rouleau was left to observe the difficulty of trying to do his job of determining whether the government acted within the law if he is left in the dark as to the government’s understanding of what the law actually required.
To be clear: the federal government is not obligated to waive solicitor-client privilege. We’ve already seen Ontario Premier Doug Ford refuse to waive any privilege at all, opting instead to hide behind parliamentary privilege to avoid appearing at the inquiry entirely. But it’s a bit rich for the federal government to brag about its commitment to transparency and point to its willingness to waive privilege when it refuses to do so in the specific area necessary to allow the inquiry to answer the central question it was established to address.
Instead, Canadians are left to piece together an interpretation of the criteria that must be met for the government to invoke the Emergencies Act that departs drastically from the plain meaning of the words.
The main point of contention surrounds the definition of “threats to the security of Canada,” the threshold for which must be met (along with other criteria) for the government to legitimately use the Act. For the purposes of a “public order emergency” –the category of emergency ultimately used by the government to invoke the Act – this is defined in section 16 as having “the meaning assigned by section 2 of the Canadian Security Intelligence Service (CSIS) Act.”
How does section 2 of the CSIS Act define threats to the security of Canada? In sum: serious espionage and sabotage; pernicious foreign influence; the threat of serious violence; or the threat of a coup d’etat.
Did the convoy protest meet this definition? CSIS Director David Vigneault testified that in the opinion of CSIS, it did not. But there was a catch: Vigneault – and other witnesses besides – said that according to legal advice, this did not prevent from cabinet reaching a different conclusion.
Strictly speaking, this is correct, because the Act only requires that the section 2 criteria be used to determine whether there’s a threat to the security of Canada; it doesn’t say that CSIS has to be the one to make that determination. Cabinet, as the ultimate political decision-maker, has the authority to disagree with CSIS and reach a different conclusion.
That latitude isn’t unlimited, however: section 17 of the Emergencies Act also makes clear that while cabinet makes the final call, they don’t have carte blanche. They still have to have “reasonable grounds” and also apply the same section 2 criteria.
This is what makes revealing the alluded-to legal advice so crucial: without knowing what precisely is different about cabinet’s analysis – variously described by witnesses as “broader” or constituting “different inputs” – it’s impossible to evaluate either the legal soundness of this opinion, or measure the government’s conclusion against this new, unknown threshold.
So we are instead left to guess. In his own testimony, Prime Minister Trudeau gave examples of several factors, such as the weaponization of vehicles and the potential use of children as human shields, that he felt needed to be considered. And while these are very serious concerns indeed, it’s not clear that they wouldn’t already be covered by the official CSIS analysis. And if CSIS did not conclude such factors met the section 2 test, what, if any, separate criteria did the government rely on to reach a different conclusion?
This is not a small question. Even accepting that cabinet has the latitude to take a wider view than CSIS, surely it cannot have a completely free hand. The Emergencies Act is an extreme law that confers immense powers to government, and was explicitly designed to be very difficult to use. If cabinet can simply wave away all the built-in safeguards at its pleasure, it would defeat the entire purpose of having any in the first place.
In retrospect, so long as the government refused to waive the requisite privilege, the entire inquiry process was doomed to reach this dead end. Canadians will apparently just have to trust the government that a legal opinion they’ve never seen gave the government license to apply criteria they won’t discuss, in order to invoke the most draconian law on the books.
Aaron Wudrick is a lawyer and the director of the domestic policy program at the Macdonald-Laurier Institute.