Inquiry to probe legal advice government received on Emergencies Act as justice minister testifies

Justice Minister David Lametti is expected to field questions about the legal advice the federal government got before invoking the Emergencies Act to deal with anti-public health measure protests last winter when he testifies before the public inquiry later today.

The attorney general is one of three federal ministers before the Public Order Emergency Commission today, which gets underway at 9:30 a.m. ET.

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 testified 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.

A spokesperson for Lametti told CBC that the principle of solicitor-client secrecy is vital to the judicial system and the minister doesn’t have the authority to waive it in this case.

“Minister Lametti is committed to transparency and assisting the inquiry led by Commissioner Justice Rouleau in their work,” the spokesperson 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.” 

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 order emergency 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.

Defence 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.