The Minister of Justice: Two Hats, no Rabbits
The Minister of Justice and Attorney General testifies
The Minister of Justice and the Attorney General of Canada, two hats one person, testified before the the Public Order Emergency Commission on the morning of November testimony. David Lametti’s appearance followed a summary report on the mass of public submissions made to the Commission—totalling some 9,500 inputs. (I may write about this material at a later date when it is available on the POEC website. It constitutes an important oral history source for the events of the Freedom Convoy protest)
The Justice Minister is a very experienced legal academic, having formerly been a law professor at McGill University prior to entering politics in 2015. He has served as Minister of Justice and Attorney General since 2019.
It was clear at the outset that this session of POEC was going to be different and difficult. Not surprisingly, the government asserted the protection of solicitor-client privilege in terms of any legal advice the Minister as Attorney General provided his client, the government (e.g. the Cabinet) regarding the invocation of the Emergencies Act. No rabbits were going to be pulled out of hats in public.
The door was not entirely closed to the Commission in terms of understanding that legal advice, it just won’t be part of the public hearings. We are told, instead, that counsel for the Government of Canada will make legal arguments in submissions to the Commission, following the public hearings, about the invocation of the Emergencies Act. Whether those legal arguments will become part of the public record eventually, is not clear. How far they will go in opening up the details of the legal advice provided by the Attorney General is also unclear.
But, here is the worrying note. There may be no flourishing of white bunnies, ever.
In response to a question from the Commissioner at the conclusion of his testimony, the Minister suggested that that the Commission may have to be satisfied that the Cabinet acted on good faith and with full knowledge of the Emergencies Act, based on the explanation of the legal framework of the Emergencies Act provided to it by the Attorney General. The Commissioner is surely right to wonder how exactly he can fulfil his mandate without knowing more about the legal advice provided to Cabinet.
Commission lead counsel took Minister Lametti through the history of the CSIS Act and of the Emergencies Act, arguing rightly that both were sensitive pieces of legislation because they touched on democratic rights. All good so far. The rest tended to constitute a kind of banter back and forth with frequent interruptions by Government counsel to assert solicitor-client privilege.
Testimony did make clear that the Minister supported the use of the Emergencies Act. Beyond that what we have is the “Section 58” explanation.
So a quick note here. Section 58(1) of the Emergencies Act is a requirement that the Government must gain Parliamentary assent to the invocation of the Emergencies Act. The Government must present a motion for a vote that includes an explanation of why the emergency was declared.
The government did lay such a motion before Parliament on February 17 and it passed with the support of the New Democratic Party. The Conservatives and Bloc Quebecois opposed. The same motion was before the Senate, but Senate deliberation did not conclude before the Emergencies Act was revoked on February 23. Minister Lametti explained that the government was confident that it would have won Senate approval, batting back any suggestion that the government quickly revoked the Emergencies Act to avoid an embarrassing defeat in the Senate.
The Section 58 explanation included five rationales for invoking the Emergencies Act:
the impact of continuing blockades
adverse impacts on the Canadian economy and undermining of economic security
adverts effects on Canada’s trading relations, including with the U.S.
breakdowns in supply chains
potential for increases in the level of unrest and violence
https://publicorderemergencycommission.ca/files/documents/Presentations/Section-58-Explanation.pdf
https://publicorderemergencycommission.ca/files/exhibits/COM00000670.pdf?t=1669262335
These five rationales must engage the legal thresholds in the Emergencies Act, including the presence of a national emergency, the absence of any other effective legislation to meet the emergency, and a threat to national security as defined in the CSIS Act.
The question of identifying a threat to the security of Canada as defined in law has been the most contentious issue in the debate over the Emergencies Act usage, and throughout the Commission hearings.
Of these five rationales, some find no direct referential language in the Emergencies Act and amount to novel interpretations—these include impacts on the Canadian economy; adverse effects on trading relations; and breakdowns in supply chains.
But there are two that speak directly to the CSIS Act definition of threats to the security of Canada embedded in the Emergencies Act. One was the threat of continuing blockades, which was characterized as involving the ”threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada.” The blockades referred to included the occupation of Ottawa as well as a series of border blockades. The key thing here is the explicit linkage of threats to property as including threats to critical infrastructure, which is a reach beyond the classic understanding of threats to property imagined in terrorist terms in the original CSIS Act.
The elaboration of this threat contained in the explanation pointed to the protests as having become a “rallying point for anti-government and anti-authority, anti-vaccination, conspiracy theory and white supremacist groups.” It stated that “violent incidents and threats of violence and arrests related to the protests have been reported across Canada.” In particular, it called attention to the RCMP arrests in Coutts, Alberta, which uncovered a cache of weapons.
As we have seen in other testimony before the Inquiry, the revelation of the Coutts arrests may have been a key trigger for the invocation of the Act. The impact of that news on the Minister of Public Safety, Marco Mendicino, was discussed in a previous newsletter (“Our Man in Canada.”). In the s58 explanation for Parliament, the Coutts arrests were linked to the possibility that there were other “elements within the protests that have intentions to engage in violence.” There was a concern that violence might be fed by the ongoing disorder association with the Freedom Convoy protests. The document also described a trio of indicators, including violent online rhetoric, increased threats to public officials, and the presence of known “ideological extremists” at protests, all adding up in the Government’s mind to an increased risk of serious violence.
The main element here is the focus on threats of violence, with the Coutts arrests the principal exhibit. Some might say that in the absence of demonstrable violence (rioting, burning of police cars, physical assaults on police officers, attacks on political leaders, murders, that sort of stuff) this presents a paper thin rationale for the use of emergency powers. The counter-argument, advanced in testimony especially by law enforcement officials, is that you can’t afford to wait until you see serious levels of actual violence occur. If you do, you will be too late and the situation may get out of control.
A second definition of threat aligning with the CSIS Act also involved an element of innovation. This was principally because the definition of threat was future oriented. This element of the s58 explanation reads as follows: “the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians.”
The Government’s stated concern here involved the possibility that the persistence of the Freedom Convoy could serve to increase support for IMVE (the CSIS term denoting “ideologically motivated violent extremists.”) Again the explanation used the example of the Coutts, Alberta arrests. It also cited concerns about bomb threats, threats to politicians, and efforts by US-based IMVE supporters to join protests in Canada and/or engage in copy-cat blockades on the US side of the border.
The challenge involved in relying on a concern about future threats is that it is impossible to base on evidence. The future is the future, and unknowable. You can make predictions, draw projections, but maybe you are exaggerating the threat. Maybe you are panicking. Maybe you just aren’t sure where the intelligence is pointing towards. Maybe you are tired, a Minister Blair suggested, of playing “whack a mole.” None of these make for a great basis for rational decision making.
Equally, to ignore possible future threat scenarios would be deeply irresponsible.
It is fair to want to make any reliance on use of the Emergencies Act firmly rooted in fact. The problem is that national security threats are not so easy to fit into a fact-based box. There will always be a degree of conjecture surrounding assessments of the security threat and its magnitude, short of an all-out civil war/breakdown of order situation, for which the Emergencies Act may be too little, too late. Again, it is worthwhile to recall just how much the spectre of the January 6 insurrection in the United States haunted Canadian officials and politicians. My guess, for what it is worth, is that the federal government may not have turned to the Emergencies Act without that display of anti-democratic action south of the border as a reminder of how threats could turn, in an inflammatory instant, to real violence.
The role of the Attorney General, to come back to Mr. Lametti, is to provide his colleagues with advice that married the perceived threat environment to the legal requirements of the Emergencies Act. How he did that exactly remains hidden. The role of Mr. Lametti as Minister of Justice (his other hat) is to join with his Cabinet colleagues in collective decision-making, under the principle of Cabinet confidence. He is bound not to discuss (betray!) the substance of discussions around the Cabinet table— another firm lid on the magic hat.
But Lametti as Minister of Justice made four key points about decision-making on the Emergencies Act, all safely outside the sphere of Cabinet confidence. They were also points we have heard from other Ministers, including the Minister of Public Safety. One is that the Emergencies Act required a “wider” set of criteria regarding national security threats. A second is that advice on national security threats was provided by a broader group of officials, not restricted to CSIS. The third is that the Emergencies Act functions for a different objective than does the CSIS Act. The CSIS Act determines the nature of targets than can be engaged for investigations, including for intrusive surveillance supported by warrants, by the Service and the nature of the advice it can provide to Cabinet. The Emergencies Act responds to a national emergency as determined by the Cabinet. The fourth and final point is that the Cabinet is the decision-maker, so the invocation of the Emergencies Act is an inherently political decision, not one made by CSIS.
Where would a skeptic’s eye rest here? The final three points seem reasonable enough. The first is stickier. While the Section 58 explanation demonstrated that the government did to use a “wider” set of criteria to determine a national security threat, what isn’t clear (to me) is how this is allowed when the criteria for what determines a threat to the security of Canada is laid out in the CSIS Act and can’t be trifled with at will. Admittedly, some parts of the s58 Explanation aligned with the CSIS Act definition. Others went beyond it.
What happens when the magic show fizzles? What happens when you are presented with a puzzle that has no resolution.
Maybe we are in Lewis Carroll land (hint, creator of Alice in Wonderland). Here is a Lewis Carroll puzzle that will fry anyone’s mind :
No birds, except ostriches, are 9 feet high.
There are no birds in this aviary that belong to anyone but me.
No ostrich lives on mince pies.
I have no birds less than 9 feet high.
Let’s hope we can do better with the invocation of the Emergencies Act. Or maybe we can do better with a new version of the Emergencies Act.