Hearing ends with words on responsibility, transparency

OTTAWA • After 300 hours of testimony, 9,000 exhibits and a few major revelations, the public portion of on investigation into the first-ever use of the Emergencies Act ended Friday with a deep dive into questions about government accountability and transparency.

A panel of experts offered insight into a key issue the Public Order Emergency Commission will have to decide: whether the federal government has been forthcoming enough about why cabinet felt legally justified to invoke what is supposed to be a measure of last resort.

Over seven weeks of testimony it came to light that the government’s interpretation of what constitutes a threat to Canada’s national security was not in line with the one laid out in the Canadian Security Intelligence Service Act, which is cited in the Emergencies Act.

CSIS director David Vigneault told the commission the “Freedom Convoy” protests did not meet the threshold for a national security threat as defined in the CSIS Act, but he was assured that cabinet could interpret things differently in the context of declaring a public order emergency.

The legal advice that led Vigneault, federal public servants, cabinet and the prime minister to that conclusion was not released to the commission. The government insists it is protected under solicitor-client privilege.

“It would be hard to say that it does not affect the ability of the commission to reach a conclusion,” former CSIS director Ward Elcock said, when asked about the impact of redacting documents and otherwise withholding information from the inquiry.

There are, however, issues of national security, cabinet confidence and, indeed, solicitor-client privilege that the government is “unable to make public,” he said.

Giving up the government’s legal opinion would be a “slippery slope,” said Elcock, who also served in several roles in the federal public service.

The final week of hearings steered away from the events of the “Freedom Convoy” protest, and focused instead on legislative and societal issues that contributed to the chaos earlier this year.

Prime Minister Justin Trudeau invoked the Emergencies Act on Feb. 14 in response to the weeks-long occupation of downtown Ottawa by “Freedom Convoy” protesters opposed to COVID-19 public health restrictions and the federal government, as well as similar protests blockading land borders across the country, halting hundreds of millions of dollars in trade.

The emergency declaration granted extraordinary powers to governments, police and banks to limit the protesters’ rights to freedom of assembly, freeze bank accounts and more in an effort to stop the demonstrations.

It was the first time the legislation was invoked since it replaced the War Measures Act in 1988, so the legal thresholds for using it are still untested.

It will be up to commissioner Paul Rouleau, tasked with leading the inquiry, to decide if the prime minister’s decision was justified, without having seen the legal basis upon which it was formed.

In that vein of transparency, Rouleau released a decision Friday to say the government had agreed to unredacted information it previously withheld on the grounds of parliamentary privilege in 20 documents that were submitted as evidence.

Brendan Miller, a lawyer for the Ottawa protest organizers, applied to have the information released, arguing it should not be privileged.