Federal government’s legal advice on Emergencies Act to remain secret as justice minister testifies

Justice Minister David Lametti is expected to face questions about the legal advice the federal government received before invoking the Emergencies Act to deal with anti-public health measure protests last winter as he tests before the public inquiry today.

But the attorney general is unlikely to give thorough answers.

Before Lametti’s testimony before the Public Order Emergency Commission got underway, a lawyer for the federal government clarified they won’t be waiving solicitor-client privilege.

“I wanted to put on the record that the Government of Canada continues to assert and maintain all of its claims of solicitor-client privilege in respect of all legal advice and opinions,” Andrea Gonsalves said.

“We will be objecting to and Minister Lametti will be refusing to answer all questions that would delve into areas of solicitor-client privilege.”

Gonsalves urged other lawyers to tailor their questions during cross examination to avoid objections.

“OK, well it will be an interesting manoeuvre,” said Commissioner Paul Rouleau.

  • Have questions about the Emergencies Act inquiry? Send them to us in an email to ask@cbc.ca.

Earlier this week, the commission heard that while Canadian Security Intelligence Service (CSIS) Director David Vigneault didn’t believe the self-styled Freedom Convoy constituted a threat to national security as defined by the CSIS Act, he did support invoking the Emergencies Act.

He testedified he sought a legal interpretation from the Department of Justice and that it was his understanding that the Emergencies Act definition of a “threat to the security of Canada” was broader than the one in the CSIS Act.

Canadian Constitution Foundation lawyer Sujit Choudhry argues the solicitor-client privilege shielding that legal opinion should be lifted.

“In fairness to the commission’s process, the federal government should waive solicitor-client privilege and publicly release this opinion,” he said in a media statement Monday.

In a statement to CBC News, a spokesperson for Lametti said the principle of solicitor-client privilege is vital to the judicial system.

“Minister Lametti is committed to transparency and assisting the investigation led by Commissioner Justice Rouleau in their work,” Chantalle Aubertin said in an email.

“[But] he is unable to speak on matters that are covered by solicitor-client privilege without violating his obligations to the government as his client and affecting ongoing legal proceedings.”

Justice Minister David Lametti is tested before the Emergencies Act inquiry Wednesday. (Sean Kilpatrick/Canadian Press)

The legal interpretation of the Emergencies Act has become a key point as the commission works to determine whether the federal government was justified in invoking the law.

Under the Emergencies Act, the federal cabinet must have reasonable grounds to believe a public emergency order exists—which the act defines as one that “arises from threats to the security of Canada that are so serious as to be a national emergency.”

The act then points back to CSIS’s definition of such a threat — which cites serious violence against people or property “for the purpose of achieving a political, religious or ideological objective,” espionage, foreign interference or the intent to overthrow the government by violence.

Defense Minister Anita Anand and Transport Minister Omar Alghabra will also take questions today from the Library and Archives building in Ottawa.

The day will start with a presentation on what the commission has heard from the public.

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