Some Emergencies Act Evidence Can Be Presented Non-Publicly at Inquiry, Commissioner Rules

Public Order Emergency Commission’s Commissioner Paul Rouleau delivers brief remarks at the start of the second day of hearings, in Ottawa on Oct. 14, 2022. The Canadian Press/Adrian Wyld

The federal government can disclose some of its evidence to the inquiry examining the use of the Emergencies Act without releasing that information publicly due to national security reasons, the commissioner overseeing the inquiry has ruled.

In his Oct. 26 ruling, Justice Paul Rouleau, who leads the Public Order Emergency Commission, said the Liberal government has requested some of the evidence that will be called by Commission counsel to be received “in the absence of the public,” on grounds that disclosure would be “injurious to national security.”

The request also asked that witnesses to be examined based on the classified evidence be questioned behind closed doors for the same reasons.

“Having considered the Government’s representations, I am satisfied that the burden has been met for this evidence in the absence of the public,” Rouleau ruled.

Rouleau said the evidence includes a classified version of one of the institutional reports (IR) submitted by the government concerning the role of the Canadian Security Intelligence Service (CSIS) in response to the Freedom Convoy protest earlier this year.

“The classified version of the lR augments the public version with information that, in the Government’s view, would be injurious to national security if disclosed to the public,” Rouleau said.

Neither version has been publicly released, but the judge’s ruling stated that the unclassified version was made available on Oct. 6 to all parties who have been granted legal standing at the inquiry.

‘Categories of Injury’

Rouleau said after Commission counsel advised the government of their intention to examine CSIS witnesses and a witness from the Integrated Terrorism Assessment Centre (ITAC) on both versions, the government asked for a closed hearing related to the classified report.

“In response to this notice, the Government applied to me in writing, pursuant to the Commission’s Rules, for leave to have the examination of the CSIS and ITAC witnesses on the classified version of the IR heard in camera and ex parte; that is to say, in the absence of the public and the Parties,” the judge said.

The Trudeau government argued that the disclosure of the classified evidence would jeopardize CSIS’s past or present investigations, methods of operations and investigative techniques, relationship with other law enforcement and intelligence agencies, and safety of its employees and informants, among several “categories of injury.”

Rouleau stressed that his ruling “pertains only to the manner in which the evidence will initially be called,” but that he will ultimately decide whether it’s released to the public after hearing all the evidence.

“When I have heard the evidence, I will decide whether the evidence must remain confidential,” he said.

“I may decide that some or all of the evidence can be made public, for example in a summary that describes the evidence without disclosing information that must remain confidential.”