After six weeks of Emergencies Act testimony, questions remain

No redactions have evoked as much frustration as the government’s claim of solicitor-client privilege, which it used to hide legal advice it received before invoking the Act

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OTTAWA — After six weeks and 76 witnesses, including the prime minister and much of his cabinet, public hearings on the use of the Emergencies Act are done, but some crucial questions remain.

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What did the government hide behind document redactions, and what was the key legal advice cabinet leaned on to invoke the act?

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Friday, Justice Centre for Constitutional Freedoms lawyer Rob Kittredge asked the final witness, Prime Minister Justin Trudeau, if he thought it was normal that the government had redacted as “irrelevant” information about an offer by the United States for tow trucks.

“Wouldn’t you say that discussion of tow trucks was relevant to the discussion we’re having here today,” Kittredge asked, noting that newly unredacted portions of the documents were provided to lawyers barely one hour earlier.

“I’m not the one who made these redactions. It’s the professional public service,” Trudeau replied.

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Canadian Constitution Foundation lawyer Sujit Choudhry asked the prime minister, who had just suggested Canadians “read” the Ottawa police’s plan themselves, how they could do that if every page after the third page of the plan had been blacked out.

“You say we should read the plan, we can’t,” Choudhry said to Trudeau. He exhorted the prime minister to instruct government lawyers to lift those redactions “for the sake of transparency for this commission.”

The inquiry is tasked with determining whether the Trudeau government met the legal bar to invoke the exceptional powers of the Emergencies Act on Feb. 14 to end the Freedom Convoy blockades against pandemic health restrictions.

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Despite some party’s frustrations regarding government document redactions and various claims of privilege protections, commission Paul Rouleau said in his closing statement Friday evening that he had everything he needed to fulfill his mandate.

“There were a staggering number of documents produced by the parties in response to the Commission’s requests, including by the federal government. The productions have been of critical importance to the Commission’s mandate and have resulted in a level of transparency that is, if not unprecedented, I’d say it’s virtually unprecedented,” Rouleau said.

“I’m satisfied that I now have the evidence that I need to make the factual findings and to answer the questions” at the core of his mandate, he added.

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But no redactions have elicited as much metaphorical headbanging as the government’s claim of solicitor-client privilege, which it used to keep secret legal advice it received before invoking the Emergencies Act.

A frustration that extends into commission staff itself. On Wednesday, inquiry lawyer Gordon Campbell went so far as to lament the government of Canada’s lack of transparency publicly.

“We would observe that we have from the beginning of this proceeding through till now attempted to find a way to lift the veil that has made such a black box of what has turned out to be a central issue before the hearing,” he said.

“We just regret that it ends up being an absence of transparency on the part of the government.”

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Over the final two weeks of testimony at the inquiry, many lawyers grilled top federal bureaucrats, ministers and staffers about their government’s use of redactions in a large swath of documents, from police plans to political staff’s notes. Most times, they received evasive responses or none at all.

Nearly every time, a government lawyer pipped up to object to the question.

Some redactions are because the information is considered “irrelevant.” In others, it is considered “cabinet confidence” (despite seemingly not relating to a cabinet discussion, lawyers have argued in some cases). Often, they are redacted under the guise that revealing the information could pose a threat to national security.

But the extremely tight deadline under which the commission is operating precludes parties from contesting redactions in court.

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Thousands upon thousands of documents have been submitted to the inquiry, and lawyers complained that some were only provided in the early hours of the morning before a crucial witness. “We’re all in the same boat here,” commission Paul Rouleau stated many times.

In two rulings this week, Rouleau declined an application by Freedom Corp. to force the government to remove redactions from a host of documents. He argued he had no reason to doubt they were made in good faith after having reviewed a few of them himself.

“Canada has reviewed the documents in question and re-assessed whether they constitute cabinet confidences. I have no reason to question the good faith of their review,” he wrote. “Having completed that review, I see no useful purpose in ordering that the redactions be lifted.”

Also in response to the Freedom Corp.’s request, the government of Canada reviewed its own redactions and removed a handful of them proactively.

This week, Freedom Convoy Ottawa organizers lawyer Brendan Miller also criticized the media for not having lawyers participate in the commission and fighting for more documents.


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