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Police hang off a truck as authorities work to end a protest against COVID-19 measures that had grown into a broader anti-government demonstration and occupation lasting for weeks, in Ottawa, on Feb. 19.COLE BURSTON/The Canadian Press

The federal government says it will not reveal what information led it to use the Emergencies Act to end truckers’ protests this winter, citing cabinet confidentiality in its response to legal challenges.

Four groups accuse the government of acting unlawfully by invoking a state of emergency when, they say, existing legislation such as the Criminal Code and traffic laws were sufficient to address it. Alberta is seeking to join the case as an intervenor, opposing the use of the emergency law.

The cabinet-secrecy claim brought a sharp response from one of the four. In a court challenge to the secrecy filed late on Friday, the Canadian Constitution Foundation (CCF) said Ottawa’s attitude is summed up by the phrase attributed to King Louis XIV of France in the 17th century: “L’état, c’est moi.” (I am the state.)

The Canada Evidence Act is unequivocal about assertions of cabinet confidentiality; it says a court shall refuse to examine or hear the evidence that the government certifies is covered by such a confidentiality claim. But the CCF, a non-partisan advocacy group based in Calgary, is asking the Federal Court to order cabinet to reveal the information to the judge and the counsel involved.

It says the information being shielded includes Public Safety Minister Marco Mendicino’s submissions on the factual and legal basis for emergency measures, plus options considered and rejected, and a record of cabinet’s decisions, possibly including a vote. The CCF’s theory is that cabinet had persistent doubts.

“To discharge its constitutional function, the court must have before it a full record and consider those materials in a fully adversarial proceeding,” the CCF said in its filing. “Without these materials and procedure, this court may feel ‘a little bit like a fig leaf.’”

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The fig-leaf quote is from a Federal Court judge who objected in 2002 to the rules for detention hearings for suspected foreign terrorists.

Ottawa invoked the 1988 emergency law for the first time on Feb. 15, after truckers in noisy, diesel-spewing vehicles had occupied downtown Ottawa for weeks, and after border blockades restricted international trade in several provinces. The truckers were calling for an end to mandatory vaccination policies and other restrictions related to the pandemic.

Using the emergency law, the federal cabinet created a new crime of participating in a public assembly that may lead to a breach of the peace, punishable by up to five years in jail or a fine of $5,000. It also required financial institutions to freeze accounts of persons engaging in the newly prohibited activities under the act, and to report the account-holders to federal security agencies.

The law defines a national emergency as an urgent situation that seriously endangers lives, health or safety, and that cannot be effectively dealt with under any other law. The government revoked its emergency declaration after 10 days.

The federal government intends to argue that the case is now moot, as the state of emergency has ended, and that the four groups lack standing, or the right to bring the case. It says in a legal document that giving lawyers access to secret documents would “entirely undermine the principle of cabinet confidentiality.” The other groups contesting the use of the Emergencies Act are Canadian Frontline Nurses, which was involved in the Ottawa protests, the Canadian Civil Liberties Association and four protest supporters.

In its legal filing on Friday, the CCF points to two pivotal episodes in Canadian legal history: the detention of suspected foreign terrorists without charge, which accelerated after the terrorist bombings of Sept. 11, 2001; and the federal government’s invoking of the War Measures Act during the FLQ crisis of 1970.

The first allowed for a closed hearing with neither the suspected terrorist nor his lawyer present. In a speech in 2002, Federal Court Justice James Hugessen criticized the law: “We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one party.” He said without the adversarial system operating, the judge may feel “a little bit like a fig leaf.” The Supreme Court of Canada cited those words in striking down that process for non-citizens in a 2007 case.

The second episode involved the War Measures Act, which allowed more sweeping executive powers than the Emergencies Act, which replaced it. Once-secret cabinet discussions that are now public show sharp disagreement over whether the previous act should have been triggered in 1970, the CCF says in its filing, adding that “it is now accepted” that cabinet overreacted.

It says the Federal Court has the inherent authority to protect the integrity of the legal process it oversees by granting counsel access to confidential documents.

“The court’s being asked to accept the government say-so. To trust them. And that’s just not how we do law in this country,” says Sujit Choudhry, co-counsel with Janani Shanmuganathan, representing the CCF.

Brendan Miller, a lawyer representing four protest supporters who filed a challenge, said he will ask the court to rule that if the information had been disclosed, it would have been to the government’s detriment.

The challenge to the confidentiality claim is expected to be heard in late May, while the challenge to the use of the Emergencies Act is likely to be scheduled for early this summer.

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