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

Tries to follow the threads that led to the the federal government’s historic invocation of the Emergencies Act in February fell on a knot – the question of who, if anyone, provided the advice that led the government to declare an emergency.

Untangling this knot is essential to understanding how the Emergencies Act was used to disperse the so-called “freedom convoy”. But getting that understanding might require the authority of Judge Paul Rouleau and the Public Order Emergency Commission.

“Where efforts using existing authorities have proven ineffective,” Public Security Minister Marco Mendicino said last month during his appearance before the special joint committee now studying the emergency declaration, “the council received was to invoke the Emergencies Act”.

The Minister mentioned this advice more than once in his testimony.

“We invoked the law because it was the opinion of nonpartisan professional law enforcement that existing authorities were ineffective at the time in restoring public safety at all of the entry points you mentioned. “said Mendicino in response to questions from Liberal MP Rachel. Bendayan.

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

“There was a very strong consensus that had to be invoked,” the minister added later.

But the minister did not say who provided the 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 are really clear about how we made the decision and we made the decision very carefully assessing the state of emergency that existed last winter,” he said. he declares.

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

CACP President Chief Bryan Larkin of the Waterloo Regional Police Service called the February events “unprecedented demonstrations, protests, occupations and acts of civil disobedience” in a letter he wrote to Mendicino and Emergency Preparedness Minister Bill Blair on February 19 — five days after the declaration of the state of emergency.

The government public record of the consultations leading up to the declaration of emergency says Blair and Mendicino met with Larkin on February 3 and 13.

Mendicino said consultations with law enforcement before invoking the Emergencies Act “included conversations about the specific powers we would prescribe … to address the gaps and challenges that existed with respect to pre-existing authorities”.

The government has also “consulted within our own community with public safety partners and the national security arm,” he added.

RCMP and OPS say they didn’t ‘request’ the deed

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

During her own appearance before the special committee, RCMP Commissioner Brenda Lucki was asked if she had requested that the Emergencies Act be invoked. “No, there was never any question of asking for the Emergency Measures Act”, she replied.

Last week, while testifying before another committee, Ottawa Police Service (OPS) Acting Chief Steve Bell was asked the same question. “We did not make a direct request for the Emergency Measures Act,” he said.

Conservatives suggested last week that those answers contradicted Mendicino’s account. Mendicino argued that the question of whether law enforcement officials requested an emergency declaration “operates from the incorrect premise that it was up to law enforcement to initiate the exercise.”

“It’s always been up to the government to invoke the law,” Mendicino said.

If there is a material difference between asking for something and advising, it remains to be seen what exactly this advice entailed.

What the police said – and won’t say

Lucki told the special committee she could not “speak specifically about the advice that was given to the firm” and the RCMP declined to comment on the advice when contacted on Friday.

The OPS also declined to provide further comment on Tuesday. But during his testimony before the public safety committee in March, Bell thanked the federal government for invoking the act. He also said that “the legislation has given PAHO the ability to prevent people from participating in this illegal protest” through powers to restrict movement, secure protected areas, target protest funding and require that third parties help remove the trucks.

Larkin was unavailable for an interview, but his Feb. 19 letter also expressed CACP’s support for invoking the law and said the legislation “complements existing law enforcement tools and fills gaps.” unintentional deficiencies in legislative powers”.

David Vigneault, director of the Canadian Security Intelligence Service, told the special committee that CSIS was among the departments and agencies whose advice informed the decision to invoke the law. He said “the intelligence and advice we provide to the government is classified to protect our sources and methods.”

Towards transparency

Beyond national security issues, any advice to ministers could be withheld on the grounds that it is covered by cabinet confidentiality.

As Mel Cappe and Yan Campagnolo — a former Clerk of the Privy Council and a former legal adviser to the Privy Council Office, respectively — explain in a new trythe principle of cabinet secrecy exists for good reasons.

But they also argue that it “should not be used to impede the search for truth when the validity of government action is seriously challenged and the law requires that it be reconsidered, as is the case with the recent declaration of emergency in response to trucker protests from convoys and blockades.”

In other words, it’s just not any cabinet decision.

Police enforced an injunction against protesters in Ottawa – some of whom had camped out in their trucks for weeks – on February 19. (Evan Mitsui/CBC)

The special committee of MPs and senators could try to demand that the government disclose the substance of the advice it has received. But the government may find it harder to say no to Judge Rouleau, who will lead the investigation that Prime Minister Justin Trudeau was required to open under the Emergencies Act.

“As an experienced trial judge and appellate judge, [Justice Rouleau] is very familiar with both the constitutional principles that underlie national security confidences and confidences and why they are there, but also understands the need for openness and transparency,” Mendicino said last week. robust and fully transparent review of the decision to invoke the Emergencies Act…

“As he begins to make his requests for information, we will cooperate fully with him, including, as I think we all contemplate, a request for information which may otherwise be protected by Cabinet secrecy.”

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