Lawyer for group of protesters wants Trudeau to waive cabinet confidence for Emergencies Act documents

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OTTAWA — A Calgary lawyer wants Prime Minister Justin Trudeau to release all of the documents behind the historic invocation of the Emergencies Act, the first of likely many demands for transparency around the Liberals’ unprecedented decision to use the act’s extraordinary powers to quell a protest.

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Brendan Miller is representing four people who attended the so-called Freedom Convoy protests in Ottawa in February.

In sworn affidavits two of them say they had their bank accounts frozen. The other two report professional consequences or being traumatized by police actions after the Emergencies Act was invoked.

They are seeking a judicial review of the act’s use to determine whether it was warranted.

Trudeau invoked the Emergencies Act on Feb. 14 just over two weeks after the occupation of downtown Ottawa began and in response to similar protests at border crossings in Coutts, Alta., and Windsor, Ont. The protesters wanted COVID-19 restrictions lifted.

The act, which had never before been used, gave police the authority to close large sections of downtown Ottawa, to freeze bank accounts and to force tow truck drivers into service in removing the dozens of vehicles that had parked for weeks around Parliament Hill.

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Trudeau revoked the act nine days later, following a massive police operation in downtown Ottawa that cleared the streets and resulted in nearly 200 arrests.

Miller’s challenge is among several asking for a judicial review of Trudeau’s decision to invoke the act. In his letter he says the government should be transparent about why it did so.

“The court should be provided the requested records, and Canadians should expect that Her Majesty’s Government will not suppress or deprive them of the reasons for invoking the Emergencies Act,” he said.

Most documents presented at cabinet meetings as well as transcripts of the conversations at those meetings are covered under cabinet confidence. Ministers are also not allowed to discuss what happens in meetings, with the expectation it allows cabinet ministers to speak freely around the table.

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Anything deemed a cabinet confidence is exempt from access to information requests and under the Canada Evidence Act it can be excluded from judicial proceedings as well.

In his letter, Miller argues that Canadians should be allowed to know what led the government to take such an unprecedented measure.

“The invocation of the Emergencies Act — the statute that replaced the War Measures Act — must always be subject to judicial scrutiny in cases brought by Canadians,” he said.

Prime ministers do have the authority to waive cabinet confidence and Trudeau has done it once before during the SNC-Lavalin affair, so former justice minister Jody Wilson-Raybould could testify at a parliamentary committee.

That waiver did not extend to several members of his staff, as the ethics commissioner later reported when he reviewed the affair.

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Other prime ministers have also waived the requirement in rare instances.

Conservative MP Raquel Dancho, the party’s public safety critic, said the government should waive privilege and be transparent about its decision.

“It has not been made clear that invoking this unprecedented overreach of government power ever met the threshold, and the information used by the Liberal government to justify it has been fraught with misinformation and a lack of credibility,” she said in an email. “Canadians deserve transparency and clarity, which is why we believe the Liberal government should waive cabinet confidence to answer questions about triggering the never-before-used Emergencies Act and stop hiding behind legal tools that block giving answers.”

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Miller’s court challenge is unlikely to be the first time Trudeau is asked to share documents.

As a condition of the act a parliamentary committee is automatically struck to study the use of the act. That committee has already begun its work and the act also requires the government to launch a formal inquiry into the circumstances behind the decision.

The National Post contacted the government to ask whether it is prepared to waive cabinet confidence in this case, but a spokesperson declined comment.

“We have no comment on this matter at this time as it is before the courts,” said Stéphane Shank, for the Privy Council Office.

• Email: rtumilty@postmedia.com | Twitter: ryantumilty