To understand Ottawa’s use of the Emergencies Act, we need to know what the cabinet knew

Attempts to follow the discussions that led to the historic invocation by the federal government of the Emergency Act in February have come to a head – the question of who, if anyone, gave the advice that led the government to declare a state of emergency.

Unraveling that knot is essential to understanding how the Emergency Act was used to disperse the self-proclaimed ‘freedom convoy’. But getting that understanding may require the authority of Justice Paul Rouleau and the Public Order Emergency Commission

“When attempts to use existing authorities proved ineffective,” said Public Security Minister Marco Mendicino last month during his appearance before the special joint committee now studying the emergency declaration, “the advice we were given was to appeal to do on the emergency law.”

The minister referred to this advice more than once in his testimony.

“We invoked the law because it was the advice of impartial professional law enforcement officers that the existing authorities at the time were not effective in restoring public safety at all the gateways you mentioned,” Mendicino said in response to questions from Liberal MP Rachel. bendayan.

Public Security Minister Marco Mendicino has said the federal government has acted on the advice of law enforcement. (Adrian Wyld/Canadian Press)

“There was a very strong consensus that we had to rely on,” the minister added later.

But the minister did not say who gave that advice to the cabinet – and none of the committee members asked for names.

In an interview with CBC News late last week, Mendicino was more specific.

“I think it’s important that we’re really clear about how we made the decision and we made the decision by reviewing last winter’s state of emergency very carefully,” he said.

“And that assessment was based on conversations we had with law enforcement, including the Ottawa Police Department and the RCMP and other officials who, in their words, described these events as an ‘unprecedented’ act of civil disobedience…in the words of the Canadian Association of the Chiefs of Police.”

The CACP’s chairman, Chief Bryan Larkin of the Waterloo Regional Police Service, described the February events as “unprecedented demonstrations, protests, occupations and acts of civil disobedience” in a letter he wrote in February to Mendicino and Minister of Preparedness at emergencies, Bill Blair. 19 — five days after a state of emergency was declared.

from the government public record of the consultations preceding the emergency declaration says Blair and Mendicino met Larkin on February 3 and 13.

Mendicino said consultations with law enforcement leading up to the invocation of the Emergency Act “included discussions about exactly what powers we would prescribe…to address the gaps and challenges that existed with regard to authorities already in place.”

The government was also “consulting within our own community of public safety partners and the national security branch,” he added.

RCMP and OPS say they didn’t ‘ask’ the act

The minister’s references to “advice” have caused some consternation.

In her own appearance before the special committee, RCMP Commissioner Brenda Lucki was asked if she had asked to invoke the Emergency Act. “No, there was never any question of applying for the Emergency Act,” she replied.

Last week, when he testified before another commission, Interim Chief of the Ottawa Police Department (OPS), Steve Bell, was asked the same thing. “We did not ask for the Emergency Act directly,” he said.

Conservatives suggested last week that those comments contradicted Mendicino’s story. Mendicino argued that the question of whether law enforcement officers requesting an emergency declaration “is based on the incorrect premise that it was for law enforcement officers to initiate the exercise.”

“It was always the government’s power to invoke the law,” Mendicino said.

If there is a material difference between asking something and advising, the question remains what exactly that advice entailed.

What the Police Have Said – And Won’t Say

Lucki told the special committee she was unable to “speak specifically about any advice being done in cabinet” and the RCMP declined to comment on any advice when contacted on Friday.

The OPS also declined to comment on Tuesday. But while Bell . testified before the public safety commission in March, thanked the federal government for invoking the action. He also said that “the legislation gave the OPS the ability to prevent people from participating in this illegal protest” through powers to restrict movement, secure protected areas, target protest funding and ask third parties to assist in truck removals. .

Larkin was not available for an interview, but his Feb. 19 letter similarly expressed the CACP’s support for the invocation of the law, saying the legislation “supplements existing law enforcement tools and closes unintended loopholes in legislative authorities.”

David Vigneault, director of Canada’s Security Intelligence Service, told the special commission that CSIS was one of the departments and agencies whose advice informed the decision to invoke the law. He said that “the information and advice we provide to the government is classified to protect our resources and methods.”

Achieving transparency

Aside from issues of national security, any advice could be withheld from ministers on the grounds that it falls under cabinet confidentiality.

As Mel Cappe and Yan Campagnolo—a former Privy Council Clerk and a former Privy Council Office Solicitor, respectively—explain in a new essaythe principle of government confidence does not exist for nothing.

But they also state that it “should not be used to hinder the search for the truth where the validity of government action is seriously contested and the law requires it to be reviewed, as is the case with the recent emergency declaration in response to the truck driver convoy.” protests and blockades.”

In other words, this just isn’t it each decision of the cabinet.

Police issued a warrant on Feb. 19 against protesters in Ottawa — some of whom had camped in their trucks for weeks. (Evan Mitsui/CBC)

The special committee of MPs and Senators could try to make the content of the advice received publicly available to the government. But it may be harder for the government to say no to Judge Rouleau, who will lead the investigation that Prime Minister Justin Trudeau had to call under the Emergency Act.

“As an experienced judge of first instance and judge of appeal, [Justice Rouleau] knows very well the constitutional principles underlying trusts and national security trusts and why they are there, but also understands the need for openness and transparency,” Mendicino said last week. “And the government is committed to ensuring that there will be a robust and fully transparent review of the decision to invoke the Calamity Act…

“As he begins to make his requests for information, we will cooperate fully with him, including, as I believe we are all considering, a request for information that would otherwise be protected by Cabinet trust.”

It will be difficult to describe a review as robust or fully transparent if it does not include an account of what the cabinet was told before the Emergency Act was invoked. And without a detailed explanation of that advice, it may be impossible for Canadians to fully understand this historic decision.

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