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Federal Court rules attorney general can’t hide documents behind ‘cabinet confidence’ related to use of Emergencies Act

Prime Minister Justin Trudeau’s government has lost a Federal Court ruling relating to the use of the Emergencies Act against the Freedom Convoy last February. A judge has ordered internal emails that cast doubt on cabinet’s claims the protest warranted the invocation of emergency powers.

“Evidence of the cabinet proceedings that led to the decision to invoke the Emergencies Act was not disclosed despite repeated requests,” wrote Justice Richard Mosley in the decision, per Blacklock’s Reporter. These communications, the judge said, were “essential to the just and proper determination” of whether cabinet broke the law, Blacklock’s reported.

“There was no serious violence in Ottawa, the main reason for the Emergencies Act,” said RCMP Deputy Commissioner Brian Brennan in an email obtained by the outlet.

The documents requested were disclosed to the Public Order Emergency Commission. The Canadian Civil Liberties Association asked for the internal records to be submitted to the court.

Lawyers for the Department of Justice attempted to keep the records out of Court by claiming cabinet confidentiality. In the documents, police concluded that the Freedom Convoy posed no security threat. “All this evidence is in my view admissible and relevant,” wrote Justice Mosley.

“The underlying applications involve questions of significant public importance regarding the first invocation of legislation that grants the government extraordinary powers to deal with a public emergency,” wrote Justice Mosley. “The addition of admissible and relevant evidence to the record would help the Court to understand how that decision was made and whether it was lawful.”

Cabinet and Liberal MPs claimed repeatedly it was advised by the police to invoke the Emergencies Act. Internal documents, however, showed that no law enforcement requested emergency powers. The RCMP and other law enforcement organizations came to the conclusion that the Freedom Convoy did not pose an extraordinary threat.

“There was no serious violence in Ottawa, the main reason for the Emergencies Act,” RCMP Deputy Commissioner Brian Brennan wrote in a February 21, 2022 email. David Vigneault, director of the Canadian Security Intelligence Service, similarly wrote in a February 13 report to cabinet that protesters never “constituted a threat to the security of Canada.”

There was no evidence the convoy was armed, dangerous, or extremist, Ontario Provincial Police Superintendent Patrick Morris, commander of the force’s Intelligence Bureau, reported on February 22. Superintendent Morris wrote “It is not an ‘extremist’ movement,”

“It is not comprised of ideologically motivated violent extremists. The actual leaders are not violent extremists with histories of violent criminal acts.”

Morris testified “The lack of violent crime was shocking,” during the Public Order Emergency Commission last October 19 “I mean, even in the arrest and charges considering the whole thing in totality.”

The level of concern was “hyperbole”, said Morris and made it clear “We produced no intelligence to indicate these individuals would be armed. There has been a lot of hyperbole around that.”

Since last February 17, attorneys for the Canadian Civil Liberties Association have been challenging in Federal Court that the cabinet’s use of the Emergencies Act is unconstitutional.

“They placed unprecedented restrictions on every single Canadian’s constitutional rights,” said Abby Deshman, director of the Association’s criminal justice program.

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Jordan is a casual reporter for BC Rise


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