Legal advice on Emergencies Act can’t be disclosed publicly: report

Attorney General Arif Virani said there was a written legal opinion provided on invoking the Emergencies Act, but it remains confidential. ‘Solicitor-client privilege is foundational,’ he said.

Legal advice on Emergencies Act can’t be disclosed publicly: report
The Canadian Press / Sean Kilpatrick and The Canadian Press / Adrian Wyld
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On invoking the Emergencies Act, legal advice tendered to cabinet by the Attorney General is protected by client-solicitor privilege.

Access to information records uncovered by Conservative MP Arnold Viersen showed Prime Minister Justin Trudeau's cabinet sought legal advice after invoking emergency powers against the Freedom Convoy, reported Blacklock’s Reporter.

MPs for years have sought proof that legal advice deemed the action lawful beforehand.

“I don’t believe for a second the broader interpretation even existed,” Conservative MP Glen Motz told a February 28 hearing of the special joint committee on the declaration of emergency.

“I still believe more strongly today than I did in 2022 that the circumstances to invoke the Emergencies Act were not met,” he said. “The threshold was not met.”

MP Viersen previously filed an access to information request for the memorandum on the Emergencies Act sent to the Attorney General from the Public Prosecution Service. 

“What did they advise the Attorney General? We will never know because Justin Trudeau censored it,” he said in a statement.

The censored documents depict a two-page Memorandum For The Attorney General dated for February 15, 2022 — one day after the Trudeau government authorized extrajudicial powers to quash dissenting views on COVID-19 mandates. 

According to the Privy Council Office, 87% of 31,844 documents went undisclosed, and Canadians will wait decades to see the confidential memos and emails, reported Blacklock’s Reporter

The feds waived cabinet privilege for Justice Paul Rouleau to review documents into cabinet’s use of the Emergencies Act but did not permit their disclosure to the public.

Of the concealed records included 16,632 classified as “secret” and 372 as “top secret.” It remains unclear which designation the Attorney General’s legal advice falls under.

Last February, Justice Centre for Constitutional Freedoms lawyer Hatim Kheir expressed concerns with the Public Order Emergency Commission (POEC) not having access to the legal advice provided by then-attorney general David Lametti.

“Lawyers didn't know what to ask during the POEC inquiry because that legal advice [by the Justice Minister] was unavailable” on invoking the Emergencies Act, he said.

Recommendation #40 of the Rouleau report urges Ottawa to deliver the “factual and legal basis for the declaration and measures adopted, including the view of the Minister of Justice of Canada” before invoking emergency powers moving forward.

At the time, Kheir said the federal government is privy to client-solicitor privilege, so “nobody knew the advice from the onset that would have helped make that determination.”

Attorney General Arif Virani told the special joint committee there was a written legal opinion, but it remains confidential. “Solicitor-client privilege is foundational,” he said.

“Who is the solicitor?” asked New Democrat MP Matthew Green. “I am,” replied Virani.

“You are in cabinet?” asked MP Green. “That is correct,” replied Virani.

“So you are both the client and the solicitor?” asked MP Green. “I wear different hats,” replied Virani.

On January 23, Federal Court Justice Richard Mosley ruled that invoking emergency powers against peaceful protesters “does not bear the hallmarks of reasonableness–justification, transparency, and intelligibility.”

Ultimately, the decision differed from the findings of the POEC, which concluded the legal threshold for using the emergency law had been met. It bears no legal standing, however.

Kheir clarified that invoking the Emergencies Act is the “last resort” — a sentiment expressed by Justice Paul Rouleau, author of the POEC report.

Among the 56 POEC recommendations is defining the threshold for what constitutes a public order emergency. Almost two dozen proposed changes specifically target the Emergencies Act itself.

The Trudeau Liberals will await the outcome of their Emergencies Act appeal, among other factors, before deciding if changes are warranted.

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