Amid the media praise for Prime Minister Justin Trudeau’s performance as the final witness at the public inquiry into his invocation of the Emergencies Act, keep in mind his government refused to give the inquiry a key piece of evidence Justice Paul Rouleau wanted to see.
That was the legal brief prepared by the federal justice department — referred to by Canadian Security and Intelligence Service (CSIS) director David Vigneault in his testimony — which Trudeau and his cabinet used to justify invoking the EA.
Vigneault and other government witnesses repeatedly referred to this government document as the reason they supported invoking the EA, even though the Freedom Convoy didn’t fit the definition of a threat to national security that it contains.
Without that, the EA is not supposed to be used.
The government’s position — based on legal advice it received from itself — was that the EA could be applied to broader situations than those specified in the EA, which cites another law, the CSIS Act, in defining security threats.
Obviously, this legal opinion is significant when it comes to why Trudeau and his cabinet invoked the EA.
As inquiry legal counsel Gordon Cameron put it on Wednesday — two days before the testimony phase of the inquiry ended:
“We would observe that … from the beginning of this proceeding until now, we have attempted to find a way to lift the veil that has made such a black box of what has turned out to be a central issue before the hearing … We just regret that it ends up being an absence of transparency on the part of the government.”
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On the same day, Justice Rouleau, in questioning Attorney-General David Lametti, who repeatedly invoked solicitor-client privilege in refusing to answer questions about what was in the justice legal brief, said he still didn’t know what Trudeau and his cabinet members were thinking when they invoked the EA.
“And I guess the answer is, we just assume they acted in good faith in application of whatever they were told. Is that sort of what you’re saying?” Rouleau asked Lametti.
Lametti responded, “I think that’s fair.” Translation, “trust us.”
Except this was an inquiry, not a trial. No one will be charged with a crime and it was the government’s own witnesses who repeatedly referred to the legal brief as their reason for invoking the EA.
To equate that with the need to ensure confidentiality between lawyers and clients is absurd.
As Cara Zwibel of the Canadian Civil Liberties Association said:
“The government is relying on solicitor-client privilege to shield the legal advice upon which cabinet relied from the commission and the public … This does hamper the commission’s ability to carry out its mandate.
“While the government has been content to have its own witnesses testify that their understanding of the Emergencies Act was based on legal advice, it now refuses to disclose that advice. Its selective approach to privilege undermines the transparency of the process.”
Judge Rouleau said following Trudeau’s appearance Friday, as the last witness in the testimony phase of the inquiry, that he now has the information he needs to make a decision about the government’s use of the EA.
But make no mistake, the inquiry itself has already said the Trudeau government wasn’t transparent on the issue of why it decided to invoke the EA — the question the inquiry has to answer.