Attorney General Arif Virani and Public Safety Minister Dominic LeBlanc repeatedly refused to disclose to a joint committee reviewing the Emergencies Act invocation what legal decision justified the government’s response to the Freedom Convoy.
Addressing the Special Joint Committee on the Declaration of Emergency, both men cited solicitor-client privilege when asked for the legal opinion the government relied on to invoke the act.
“You would appreciate that it is not the contents that we’re trying to protect,” Mr. Virani told MPs and senators on Feb. 27. “What is critical in protecting solicitor-client privilege is a relationship that has existed for hundreds of years.”
After three weeks of protests in Ottawa and other locations, the Liberal government invoked the act for the first time since its creation in 1988, giving law enforcement expanded powers to arrest demonstrators, freeze the bank accounts of some protesters, and require towing companies to remove protesters’ vehicles.
A commission set up in the aftermath of the invocation of the act, a requirement under law, found that the government was justified in using the act.
However, more recently, in a federal court case brought forth by some of the protesters, Justice Richard Mosley found the Liberal government’s use of the act in response to the trucker protest was “unreasonable” and breached Canadians’ Section 8 and Section 2(b) Charter Rights.
Mr. Virani and Mr. LeBlanc, who were not in their current roles when the Emergencies Act was implemented, both said in their opening statements that the measure was an appropriate response to the trucker convoy.
“I'd like to remind the committee that the decision to invoke the Emergency Measures Act was not taken lightly,” said Mr. Virani, adding that the measures were temporary and specially tailored to the situation based on information available at the time.
Conservative MP Larry Brock said it was “of no surprise to me” that Mr. Virani and Mr. LeBlanc had “doubled down literally on the same talking points that we’ve heard from this Liberal government” regarding the Emergencies Act. He asked Mr. Virani if he could provide the legal opinion the government used to invoke the act, which the committee ordered the government to produce on May 30, 2022.
“The opinions and advice are matters of privilege, which you appreciate as a fellow counsel, Mr. Brock,” Mr. Virani said.
The MP responded, “I don’t appreciate that, Minister Virani. What is the government hiding?” He added that there was “ample precedent” of governments waiving solicitor-client privilege.
“Solicitor-client privilege is foundational to the development of legal advice in a candid and frank manner,” the attorney general answered.
Under questioning by New Democrat MP Matthew Green, Mr. Virani acknowledged that because the federal government was the “solicitor,” while Mr. Virani and his staff were the “client,” he was assuming both roles. “I wear different hats at different times,” he said.
Mr. Green raised the topic of the SNC-Lavalin controversy, where former attorney general Jody Wilson-Raybould also used solicitor-client privilege to justify not commenting on claims that the Prime Minister’s Office tried to pressure her to help SNC-Lavalin avoid criminal prosecution.
Mr. Green said the federal government had a history of waiving cabinet confidence and suggested it was within the public’s interest for the government to provide the “highest level of transparency” around the decision to use the Emergencies Act. “Being both the client and the solicitor, please explain to me and the public how you justify not providing basic information in the general public interest,” he said.
Mr. Virani said that he knew of “very few instances” where cabinet confidence had been waived.
Mr. Green responded that the average person watching “who heard you talk about the sacrosanct relationship with yourself will not be willing to accept the answers that you’ve provided here today.”
The attorney general replied, “I think the Canadians that are watching right now in response to Mr. Green would appreciate that the chief law officer of the Crown takes very seriously the issue of how the administration of justice unfolds in this country.”
