In rare move, federal government to give cabinet secrets to Emergencies Act inquiry

The federal government has agreed to provide cabinet secrets to a public inquiry studying the controversial decision to invoke the Emergencies Act to deal with so-called “Freedom Convoy” protests this winter.

in to statement Tuesday, lawyers for the Public Order Emergency Commission said the government agreed to provide “all the inputs that were before cabinet” when it decided to declare an emergency under the act on Feb. 14. The commission welcomed the move as an “exceptional step” that recognizes the importance of its work.

The inquiry, led by Ontario Justice Paul Rouleau, had requested access to all information — including documents covered by cabinet secrecy — that prompted Prime Minister Justin Trudeau and his ministers to invoke the Emergencies Act on Feb. 14, before lifting the temporary order and special police powers on Feb. 23.

The inquiry’s statement said this is only the fourth time over the course of 371 public inquiries since the Confederation that access to cabinet confidences have been granted. It added that the inquiry expects to receive cabinet documents “shortly.”

“It is in the public interest that this public inquiry be fully informed of the circumstances that led to cabinet’s decision to declare the emergency and adopt the measures,” said inquiry lawyers Shantona Chaudhury and Jeffrey Leon.

“We appreciate that the government has acknowledged this and co-operated by making this voluntary disclosure. This is an important step in moving the commission’s work forward.”

Michael Tansey, a spokesperson for the inquiry, said the government hasn’t yet provided a list of cabinet material it will hand over. But he said they’ve committed to providing “all of the documentary inputs that were before the Incident Response Group, other Cabinet Committees and Cabinet itself” relating to the emergency declaration and special powers it created to deal with the convoy protests.

The inquiry was launched in April to study why the government turned to the never-before-used Emergencies Act to deal with the protests that occupied downtown Ottawa for three weeks and blocked key border crossings. It is also tasked with studying the emergency powers granted through the act, which allowed police to declare protests “unlawful” in certain areas and frozen protesters’ bank accounts.

Public Safety Minister Marco Mendicino had previously expressed openness to sharing some classified information with the inquiry, while Trudeau recently hinted to the CBC that the government would provide material to Rouleau, including “situational reports and the reality that we were facing across the country.”

It is not yet clear if Tuesday’s decision means the government will also disclose cabinet secrets in other venues. Opposition parties have been pushing the Liberals to waive cabinet confidence for documents sought by a parliamentary committee of senators and MPs that is also studying the invocation of the Emergencies Act.

The Canadian Constitution Foundation is also seeking access to cabinet confidences, which is a convention of the Westminster parliamentary system meant to allow ministers to have robust discussions in secret. The foundation is challenging the basis for the use of the Emergencies Act in Federal Court, and wants its lawyers to review secret material — including minutes from meetings of ministers in the days before the act was invoked — before a judge in a closed-door session .

In a statement to the Star on Tuesday, foundation lawyer Sujit Choudhry expressed hope the government would also allow lawyers to review cabinet secrets on a confidential basis, so the court can also provide oversight over the contested decision.

Choudhry also said he would like further details on what exact documents will be turned over to the inquiry, and who will be able to see them.

“We are pleased that the government will not claim privilege over documents before cabinet when it proclaimed the public order emergency. But we need important details,” he said.

The inquiry is slated to hold public hearings this fall before it submits its final report to the government by Feb. 6, 2023.


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