Emergencies Act Hearings: Betrayed by a lawyer

Vincent J,.Curtis

23 Nov 22

Much has been made of the fact that Section 16 of the Emergencies Act (EA) was tied to Section 2 of the CSIS Act.  Section 16 of the EA states what constitutes a threat to the security of Canada.  Section 16 reads in part: “threats to the security of Canada has the same meaning assigned by Section 2 of the [CSIS] Act.”

Throughout the hearings we heard from cabinet ministers and the PCO that they had received legal advice from the Department of Justice that “context” mattered, and that a plain English reading of the definition of a “Public Order Emergency” didn’t mean what it apparently said.  The definition of a Public Order Emergency in Section 16 of the EA really didn’t have the same meaning of Section 2 of the CSIS Act.

Attorney-General and Minister of Justice David Lametti was the DoJ lawyer who gave the Cabinet that advice.  Lametti is a highly accomplished lawyer, a professor of law who had written several learned articles on law, and admiration for his work was expressed by Convoy lawyer Branden Miller.  Lametti was calm, knowledgeable, utterly confident, and forthright, in contrast to many of his ministerial colleges.  When asked how it could be that the plain wording of the EA did not mean what it said, Lametti maintained that the two Acts were for different purposes, and decisions of the cabinet could not be tied to decisions by CSIS.

The lawyer for the CCLA presented Lametti with the Hansard text of MND Perrin Beatty, who shepherded Bill C-77, which became the EA, through parliament.  In debate, Beatty said that the wording of Section 16 was connected to Section 2 of the CSIS Act because the wording of Section 16 was likely to be extremely contentious and the wording of Section 2 of CSIS had already received the blessing of parliament.  When confronted with legislative intent, Lametti was unmoved.  The two are different, he maintained.

But Lametti also relied on Solicitor-Client privilege (the client being the Governor-in-Council) not to disclose the advice he gave to the Cabinet as to what Section 16 did mean in respect of a Public Order Emergency.  The de facto legal meaning of what is a public order emergency in Canada thus is held in secret, protected by Solicitor-Client privilege and by Cabinet secrecy!

A major advantage of invoking the EA was the ability to impose financial sanction against those participating in the “illegal protest and occupation of downtown Ottawa.”  This included not only the freezing of bank accounts but the suspension of insurance policies.  The lawyer for the government of Saskatchewan probed this seizure of power because that power impinged upon the sovereign jurisdiction of the provinces.  Credit unions are provincially chartered, and ostensibly the Federal government was issuing them orders, disregarding and bypassing provincial authority.  Likewise, auto insurance is a provincial matter, and in Saskatchewan is controlled directly by the government.  In this sphere also the Federal government was claiming powers over provincial entities.

Lametti agreed that the Federal government did assert that power under the EA, and that that assertion had constitutional significance, but it was only for a short time and was proportional to the emergency.  In short, Lametti was arguing that it was only the nose of the camel that entered the tent, and only briefly.

Lametti was not questioned about how exactly the Freedom Convoy became an illegal protest and occupation, since this had to be the case before the EA was invoked.  However, he was certain that it was when the EA was invoked, without explaining how that status came to be.  He did not explain why the government did not parlay in any way with the Convoy.

Thus it was Canada’s top lawyer, and probably one of Canada’s best lawyers, that betrayed the legislators who passed the EA thinking they understood what Section 16 meant.  He betrayed Canadians who relied on a plain English meaning of the words that appeared to be in plain English.

But if a plain English reading of plain English words was all there was to the law, there’d be far less need for lawyers, wouldn’t there?

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