After some 300 hours of testimony, 9,000 documents filed in evidence and some major revelations, the public part of the investigation into the very first use of the Emergencies Act ended Friday with a deep dive into questions about government accountability and transparency.
A roundtable of experts provided insight into a key question for the Emergency Commission to decide: Was the federal government sufficiently transparent about why the cabinet felt legally justified to invoke what is supposed to be a measure of last resort?
Over seven weeks of testimony, it emerged that the government’s interpretation of what constitutes a “threat to the security of Canada” did not conform to the definition set out in the Canadian Security Intelligence Service Act. (CSIS), to which the Emergencies Act refers.
CSIS Director David Vigneault told the commission that the “freedom convoy” protests did not meet the national security threat threshold as defined in the CSIS Act. But he was assured that the cabinet could interpret things differently in the context of a declaration of a state of emergency.
The legal opinion that led Mr. Vigneault, federal officials, cabinet and the Prime Minister to this conclusion was not disclosed to the commission.
The government insists that this legal opinion is protected by solicitor-client privilege.
“It would be hard to say that it doesn’t affect the commission’s ability to come to a conclusion,” said former CSIS director Ward Elcock, when asked about the impact of redacted documents and the non-disclosure of information to the commission of inquiry.
He agreed, however, that there were issues of national security, cabinet confidentiality and, indeed, solicitor-client privilege. Revealing the government’s legal opinion would be a “slippery slope”, admitted Mr Elcock, who has also held several senior federal civil service positions.
Expert round tables
The final week of hearings moved away from the day-to-day protests to focus instead on legislative and societal issues that had contributed to the chaos last winter.
Prime Minister Justin Trudeau invoked the Emergencies Act on February 14 in response to the occupation of downtown Ottawa for a few weeks by “freedom convoy” protesters opposed to health restrictions , and more broadly to the federal government. Other similar protests blocked land border crossings elsewhere in the country, halting hundreds of millions of dollars in trade.
The declaration of a state of emergency granted extraordinary powers to governments, police and financial institutions to limit the rights of protesters to freedom of assembly, freeze bank accounts and force private companies to collaborate with the authorities, the all with the aim of putting an end to the protests.
It was the first time this emergency law had been invoked since it replaced the War Measures Act in 1988, so the legal thresholds for its use had never been tested.
It will ultimately be up to Judge Paul Rouleau, who chairs the commission, to decide whether the Prime Minister’s decision was justified – without ever having seen the legal basis for this decision.
This transparency problem could be solved in the future if the government goes halfway: conveys a general understanding of the legal basis for declaring a state of emergency, Hoi Kong, professor of constitutional law at the Institute, said on Friday. University of British Columbia.
The little bird on the shoulder
As several experts explained on Friday, the simple fact of holding an inquiry is already a means of holding the government accountable, at least politically.
“With these accountability mechanisms, one of the things you want is for decision-makers, when they really have to make a decision like this, to have a little bird perched on their shoulder saying, ‘One day, someone who doesn’t not feel this pressure to act quickly will look at what you have done”, illustrated Kim Lane Scheppele, professor at the School of Public and International Affairs at the American University Princeton.
In this vein of transparency, Judge Rouleau also announced on Friday Ottawa’s decision to make public unredacted versions of 20 documents directly related to the use of the Emergencies Act.
The lawyer for the organizers of the “convoy”, Brendan Miller, had asked the Rouleau commission to make this information public, which should not, according to him, have been protected by parliamentary privilege. These documents include written notes and text exchanges between members of Prime Minister Trudeau’s political staff.
Judge Rouleau said on Friday that the government itself had finally agreed to voluntarily release the unredacted documents.
Since the testimony component of the Rouleau commission is now complete, any new information contained in these documents which are no longer redacted is unlikely to be submitted to witnesses. This information may, however, be taken into account by the commissioner and be commented on in the written arguments of the various groups that took part in the work of the commission.
At the end of the last round table of experts on Friday, Judge Rouleau thanked all the witnesses who appeared before the commission. His work is now shifting into high gear.
The commissioner only has until early February to present his findings and recommendations to Parliament. The report must be made public in both official languages by February 20.