The federal government’s use of the Emergencies Act from Feb. 14 to 23 is challenged in Federal Court, as “unnecessary, unjustifiable and unconstitutional” by the Canadian Civil Liberties Association (CCLA), as well as by the Canadian Constitution Foundation and two other groups — with all four judicial reviews expected to be heard together in July.
As attorney general, Lametti is trying to get the actions dismissed as moot, but he and Public Safety Minister Marco Mendicino defended the government’s actions on the merits, during a three-hour grilling April 26 before Parliament’s Special Joint Committee on the Declaration of Emergency — one of two review bodies the Emergencies Act mandates to ensure the government is transparent and accountable for its rollout of extraordinary emergency powers.
The Senate-Commons committee is required under the Emergencies Act to review the federal government’s declaration of an emergency, as well as the government’s exercise of its powers and performance of its duties and functions pursuant to that declaration.
However, an air of frustration hung over opposition MPs and some senators as they pumped the cabinet ministers for information, including for details of the government’s legal analysis that the declaration of an emergency was constitutionally compliant, only to be met with non-responsive answers or assertions of cabinet confidentiality, solicitor-client privilege and litigation privilege.
Justice Minister David Lametti
Asked by NDP MP Matthew Green to explain why the government considered that the temporary powers it created pursuant to the emergencies declaration — including warrantless freezing of the bank accounts of convoy participants — were proportional, and reasonably and demonstrably justified under s. 1 of the Charter, Lametti reiterated his bald assurance that all the government’s actions were “consistent with the Constitution, including the Charter of Rights and Freedoms.”
“I can’t go into detail because that’s solicitor-client privilege,” Lametti responded, when Green pressed the justice minister to be more forthcoming in accounting for the government’s actions.
“I have given what are in effect the conclusions that we have reached as a result of the Charter analyses that we did,” Lametti said.
As for the ongoing court challenges, the justice minister observed, “that's, sadly, another form of privilege, which is litigation privilege. We will make arguments in court, the attorney general will make arguments in court in those cases. I think we will prevail in those cases, but you will see those arguments when we make them. I will not ... impede our arguments, by giving those arguments or …”
Interjected Green, “perhaps you’re not impeding your arguments, but you’re certainly impeding the process through which we can get clarity.”
Lametti replied, “as attorney general, I also have the duty to protect solicitor-client privilege, which enables Canadians not just in government, but Canadians across Canada, to get good, honest, legal advice, even when it's not what they want to hear. ... Canadians, I think, will understand that as attorney general, I have to protect that privilege.”
(Asked for her reaction, Cara Faith Zwibel, director of the CCLA’s fundamental freedoms program, agreed solicitor-client privilege is an important principle, “but I think in this case there’s a good argument that it could, and should, be waived so the committee can examine the [government’s] justification. ... Ultimately what’s going to happen in court is that they are going to have to put a Charter justification forward, whether it’s the one that they got as advice at the time [of invocation], or a new one that they’ve crafted in response to the litigation. But they’re going to have to put that justification forward in one way or another.”
As for the minister’s prediction that the government will prevail in court, Zwibel told The Lawyer’s Daily “I don’t usually try to crystal ball what the courts are going to do, but ... we thought there is a good case here for judicial review,” she said. “The process of having a judicial review, and an independent judge assess whether the government’s actions were appropriate, that is an important process, regardless of the outcome.”)
Lametti was pressed by Conservative MP Glen Motz to account for the government’s appointment April 25 of Ontario Court of Appeal Justice Paul Rouleau (who worked for the Liberals before his appointment to the bench two decades ago) to head the independent inquiry required by the Emergencies Act. The inquiry is to review the Liberal government’s rollout of emergency powers — an inquiry whose mandate critics complain fails to focus on the government’s actions.
Calling the Rouleau Inquiry the “so-called independent inquiry,” Motz asked Lametti “was his Liberal pedigree essential to his selection or merely a bonus? Can you help us understand how you ... came to choose Justice Rouleau? How many justices were consulted before you chose Justice Rouleau? And how many declined that opportunity?”
Lametti replied that the Privy Council Office handled the appointment process.
“Let me just say that judges who are appointed of whatever political stripe — plenty were appointed by Conservatives, plenty been appointed by Liberals — do their job to the best of their abilities in a neutral fashion,” he said. “We have an outstanding judiciary in Canada. I would be proud, and proud that Justice Rouleau is taking part of this.”
(Before his appointment to the Ontario Superior Court by the Jean Chretien government in 2002, Justice Rouleau was active in Liberal politics, notably helping John Turner win the Liberal leadership and advising him in the Prime Minister’s Office before Turner was replaced as prime minister by Brian Mulroney in 1984.)
In defending the government’s use of emergency powers, Lametti said all the measures were “consistent with the Charter. Individual rights and freedoms were not suspended,” he said in French. “The Charter continued to protect the rights and freedoms. The government had taken necessary, lawful and proportionate measures to deal with illegal demonstrations and blockades.”
Lametti said the government “will always protect and defend the rights of Canadians to peaceful assembly and to express their views freely. But the blockades and occupation of downtown Ottawa were not peaceful assembly. The protests and blockades that we witnessed in February were illegal, intimidating, harassing, and a threat to Canada’s security.”
Public Safety Minister Marco Mendicino
“At the end of January 2022, members of the so-called Freedom Convoy demanded that all vaccine mandates be revoked failing which the Governor General should unilaterally remove the prime minister from office,” he said. “Others incited the violent overthrow of the government with one threatening, and I quote ‘The only way that this is going to be solved is with bullets.’
“These ideologically extreme goals helped incite thousands to form massive blockades at our borders, legislatures, monuments, and here in Ottawa in front of Parliament Hill.”
Mendicino said the daily cost to the economy at each of the blockaded ports of entry was “astronomical” — citing the disruption at the Ambassador Bridge in Windsor, where “we lost about $390 million a day in trade. Plants were closed, workers were laid off, the manufacturing sector was stalled.”
Mendicino said the ability to import essential medical supplies, food and fuel was compromised, while the U.S. expressed concern to the federal government. In Ottawa, residents were “under siege” for a month, many small businesses closed down, and people could not get to work or take their children to school, he said.
“911 here was flooded with calls putting at risk people in distress, requiring first responders assistance, and the seat of the federal government here on Wellington Street was completely overrun by blockaders who entrenched themselves with structures and propane tanks, who parked a crane in front of the Prime Minister’s Office and Privy Council Office and who repeatedly intimidated and harassed residents 24/7 making it unbearable and unsafe,” he said. “When police repeatedly told the blockaders to go home, using their authorities to keep the peace, they were swarmed and threatened. When media tried to report what was going on. They were pushed and spit at. By any sensible definition, this was a massive illegal occupation in Ottawa for nearly a month.”
Mendicino said that when existing legal authorities did not suffice to enable police to effectively deal with the situations, “the advice we received was to invoke the Emergencies Act.”
“At all times, we were guided by a simple principle of limited use,” he said. “Put simply, when it came to the Emergencies Act, we were reluctant to invoke, and eager to revoke.”
The government should only roll out emergency powers when “absolutely necessary,” Mendicino acknowledged. “However freedom in a democracy never includes the freedom or licence to trample on the rights of others,” he said. “And we should never, ever encourage or countenance or be complicit in illegal behaviour, for it is an affront to the administration of justice, to the rule of law.”
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