Attorney-General suggested Emergencies Act in first week of Ottawa protest, texts reveal

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Within the first week of protests gridlocking Ottawa last winter, Attorney-General David Lametti was already raising the idea of invoking the Emergencies Act and said the Canadian Armed Forces might be “necessary” to end the protests.

Mr. Lametti’s views were revealed in texts presented during his testimony on Wednesday at the inquiry studying the act’s use. His appearance ended with Mr. Lametti telling Justice Paul Rouleau he would have to trust that federal officials acted in good faith when they invoked the act because the government is not releasing the legal advice behind its decision.

The Public Order Emergency Commission, led by Justice Rouleau, is studying whether the federal government acted appropriately when it invoked the Emergencies Act in response to last winter’s convoy protests.

Text messages tabled at the inquiry show Mr. Lametti, who also serves as justice minister, was heavily involved behind the scenes. He repeatedly asked about the status of police plans, was highly critical of the Ottawa police, and advocated for stronger enforcement. His comments prompted repeated questions from inquiry lawyers about the line between politicians and police.

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Prime Minister Justin Trudeau’s government has agreed to partly waive cabinet confidence to release some information to the inquiry but it has kept solicitor-client privilege in place, resulting in an “absence of transparency,” said senior commission lawyer Gordon Cameron. He said it presents a “conundrum” as the inquiry tries to “lift the veil that has made such a black box” of a central issue facing the inquiry – namely whether the decision to invoke the act was reasonable and appropriate.

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“You need to get the police to move,” Mr. Lametti told Public Safety Minister Marco Mendicino on Feb. 2, and the Canadian Armed Forces “if necessary,” he added.

“Too many people are being seriously, adversely impacted by what is an occupation. I am getting out as soon as I can. People are looking to us/you for leadership. And not stupid people,” he added in subsequent texts.

“How many tanks are you asking for I just wanna ask Anita how many we’ve got on hand,” Mr. Mendicino said in response, referring to Defence Minister Anita Anand.

“I reckon one will do!!” Mr. Lametti replied.

That exchange fell on the sixth day of anti-government, anti-vaccine mandate protests, which arrived in Ottawa on Jan. 28. The demonstrations soon spread to border crossings, including most significantly in Windsor, Ont. However, that blockade was cleared before the federal government invoked the Emergencies Act on Feb. 14.

Days after his ministers were discussing a military option, Mr. Trudeau ruled it out at a press conference.

Mr. Lametti testified that his exchange with the minister responsible for policing in Canada was “meant to be a joke between two friends.” He said the armed forces are always viewed as a last resort and described the Emergencies Act as a second-last resort. The law was brought in to replace the War Measures Act in 1988. It allows cabinet to temporarily bypass the legislature, granting it sweeping powers with retroactive oversight.

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By the third day of protests, as big rigs, food tents, flatbed trucks and other vehicles settled in beside Parliament Hill, Mr. Lametti asked his chief of staff Alex Steinhouse whether there was a contingency plan to remove the vehicles within two days. “What normative authority do we have or is some order needed? EA?”

The minister told the inquiry that he was referencing the Emergencies Act and said it was something he was “prudently raising” to begin thinking about “in case we need it.” By Feb. 4 he attended a meeting to do “preparatory work” in case the act was invoked. He testified his sense was that the government began seriously considering invoking the act on Feb. 11.

As he planned to advise the government on its decision, he was also taking umbrage with then Ottawa police chief Peter Sloly. On Feb. 4, he told Mr. Mendicino in a text that Mr. Sloly was “incompetent” and he was “stunned” at the lack of a multilayered plan. Mr. Sloly resigned on Feb. 15.

In explaining a Feb. 5 text where he told the Public Safety Minister that Mr. Sloly needed to be “quick, quick, quick,” Mr. Lametti said it was a reference to his favourite Christmas movie and it amounted to banter between friends.

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However, Mr. Cameron repeatedly pressed the point that Mr. Lametti is both Attorney-General and Justice Minister and was texting opinions on policing to Mr. Mendicino who was dealing with the city of Ottawa and RCMP at the time. Mr. Lametti said he was speaking as a colleague and Justice Minister. “I’m not interacting as Attorney-General,” he said.

In his role as Attorney-General, Mr. Lametti gives legal advice to the federal government, but as Justice Minister he is responsible for federal policy.

He said in hindsight he would have softened his comments about Mr. Sloly but added that he and his staff felt unsafe during the protests and Mr. Lametti moved out of his usual Ottawa home and lived elsewhere in the capital and at times went to Montreal “to escape Ottawa.”

The rare look at text messages between ministers and senior staff is only happening because of the inquiry, which is legally required to be struck each time the Emergencies Act is invoked. Near the end of almost six weeks of public hearings, lawyers at the inquiry and experts watching it say it remains unclear how the federal government determined that the protracted protests met the threshold of a national emergency as defined in the act.

The Emergencies Act states that to declare a public order emergency, there must be “threats to the security of Canada” that are so serious they mark a national emergency. The act’s definition of those threats comes from the Canadian Security Intelligence Service Act.

The head of CSIS told cabinet that the definition under the CSIS Act was not met but several federal government officials have told the inquiry that they received a legal opinion that allowed for a “broader” interpretation of threats to the security of Canada in the Emergencies Act than in the CSIS Act. At the time of the act’s invocation, the government did not disclose this.

Toward the end of Mr. Lametti’s testimony, Mr. Cameron asked him how CSIS director David Vigneault had come to believe that the Emergencies Act definition of threats to the security of Canada was “broader” than the CSIS Act. Mr. Vigneault has testified that he received a legal opinion from the Justice Department to that effect.

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A federal lawyer objected to the question, citing solicitor-client privilege. The comment prompted Mr. Cameron to raise concerns about how the inquiry could complete its work but he said he wouldn’t seek a formal ruling on the privilege the government was invoking because the inquiry had other ways to get the same information.

Justice Rouleau also asked how the commission can assess the reasonableness of the government’s decision “when we don’t know what they were acting on?”

Mr. Lametti replied that the federal government has done its best to provide information. He said the commission has already heard “some indication” of its views on the legal standards and more will come through the legal arguments in final submissions.

Justice Rouleau said that while closing arguments are helpful, what he still doesn’t know is “the belief of those who made the decision as to what the law was” at the time.

“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?” Justice Rouleau asked.

“I think that’s fair,” Mr. Lametti replied.

Mr. Cameron laid out Wednesday the immense power of the Emergencies Act. In the late 1980s, when parliamentarians were crafting the act, they looked to the CSIS Act to find a threshold for using its powers, Mr. Cameron said. The CSIS Act, then only a few years old, was another case where lawmakers needed to make sure “extraordinary powers were appropriately controlled,” he added.

On Wednesday, Mr. Lametti gave an indication of how the government managed the discrepancy in the protests failing to meet the CSIS Act definition but still meeting the threshold for the Emergencies Act.

Commenting as a “jurist,” rather than as Attorney-General, Mr. Lametti testified that the CSIS Act and Emergencies Act have different purposes, with different decision-makers. The federal government does not delegate its decision-making power on the use of the Emergencies Act to CSIS, he said.

“While it is the same standard of the same magnitude, the interpretation of that standard is being done according to a wider set of criteria by a very different set of people, with a different goal in mind,” he concluded.

When pressed on whether the government adequately explained itself in a legally required, written justification of the act’s use, Mr. Lametti repeatedly cited solicitor-client privilege.

Mr. Lametti also declined to provide specifics of the government’s contemporaneous legal analysis in an interview with inquiry counsel ahead of his testimony.

“For reasons of solicitor-client privilege, Minister Lametti could not describe the various kinds of legal analysis relied upon by cabinet,” an interview summary reads.

In that interview, Mr. Lametti gave a few vague examples of the “inputs” cabinet considered in making its decision, citing reports from the RCMP and intelligence organizations, as well as open-source information.

Leah West, assistant professor at Carleton University’s Norman Paterson School of International Affairs, called it “concerning and disappointing” that the government has not revealed its basis for concluding the invocation was appropriate.

“This is the time for the government to make its case,” she said. “A theme and a question, since the very invocation is, how does it meet the legal threshold – specifically as it relates to a threat to the security of Canada?”

This question wasn’t clearly articulated in the government’s written justification, nor in Parliament, she added.

“And now they have the opportunity to do that, and they’re choosing not to – essentially saying, ‘trust our legal analysis was the right one.’ Well, that’s the very question that this commission is being asked to assess,” Prof. West said. “And if we don’t understand how they got from A to B, how can anyone judge that?”

In a statement on Wednesday, Cara Zwibel of the Canadian Civil Liberties Association said the government should waive solicitor-client privilege.

“While the government has been content to have its own witnesses testify that their understanding of the EA was based on legal advice, it now refuses to disclose that advice. Its selective approach to privilege undermines the transparency of the process,” she said.

With reports from Bill Curry and Sean Fine.