Author of Emergencies Act Says Government Should Release Legal Opinion for Invocation

Perrin Beatty, president and CEO of the Canadian Chamber of Commerce and former defence minister, speaks during a news conference held by the Canadian Travel and Tourism Roundtable at the Ottawa Airport in Ottawa, on June 14, 2021. Justin Tang/The Canadian Press

The former minister under Brian Mulroney who oversaw the process to replace the War Measures Act with the Emergencies Act in 1988 says the Trudeau government should release the legal opinion it used to justify invoking the act last winter.

“I believe the government should release the legal opinion it relied on,” tweeted former defence minister Perrin Beatty on Feb. 22.

“How can you ask Canadians to obey the law when you won’t tell them what it is?”

The former Conservative minister, now president and CEO of the Canadian Chamber of Commerce, was reacting to a question from former diplomat and columnist Norman Spector, who remarked that Commissioner Paul Rouleau had not taken Beatty’s advice to release the legal opinion.

Rouleau, who led the public Order Emergency Commission, tabled his final report on Feb. 17, with his main finding being that the government had met the “very high” threshold to invoke the act.

He would not have been able to release the legal advice protected by solicitor-client privilege, and wrote in his report he was content with the testimonies from officials.

Civil liberties group have criticized Rouleau’s finding and the government’s decision not to release the legal advice it acted upon.

“The commissioner recommends in his report that the government should be bound to produce all of the inputs to cabinet and the ministers that had [been] relied upon to invoke the Emergencies Act,” said Ewa Krajewska on Feb. 17, a lawyer who worked with the Canadian Civil Liberties Association during the commission.

Rouleau recommended that the act be amended so that a future commission of inquiry would be directed to examine the basis for the declaration of emergency, but he also said in his report he was satisfied with not seeing the legal advice.

The commissioner said he took at face value the testimonies from federal ministers and officials about the legal thresholds being met.

The Liberal government declared a public order emergency under the act in February last year to clear cross-country protests and border blockades demanding the lifting of COVID-19 restrictions.

“Some suggestion was made that in the absence of disclosure of the legal advice that Cabinet received, which is protected by solicitor – client privilege, it cannot be known whether its decision conformed to that opinion. I do not accept this argument,” Rouleau wrote.

“I do not need to see the legal advice itself in order to accept the evidence that they believed their conclusion to be justified in law.”

Rouleau had expressed some concerns about not seeing the legal advice when Justice Minister David Lametti testified at the inquiry on Nov. 23.

“I’m having a little trouble, and I don’t know if you can help me, how we assess reasonableness when we don’t know what they were acting on,” said Rouleau.

“What I don’t know, and I’m not saying we necessarily need to know, is what was the belief of those who made the decision as to what the law was? And I guess the answer is we just assume they acted in good faith in application of whatever they were told. Is that sort of what you’re saying?” asked Rouleau.

“I think that’s fair,” replied Lametti.

Beatty offered other comments on Twitter about Rouleau’s report, but refused to say whether he believes the invocation of the act was justified.

He said this is because he doesn’t feel he has all the information he needs and that taking a stance would “simply fuel a partisan debate – unfortunately, our politics [have] become tribal.”

“The police were called in because the politicians had failed. Then the politicians were called in because the police had failed. We need to repair the divides in our political system that are tearing our national fabric,” Beatty said.

He added the Emergencies Act had aged well but that it would make sense to modernize it and “to look at how we can ensure that future governments don’t see the need to use it.”

The former Conservative minister under Mulroney also took part in the parliamentary review process of the act’s invocation.

“Even if you find that invoking the act was warranted, you should work to make it unnecessary if we face similar circumstances again,” Beatty told the Special Joint Committee on the Declaration of Emergency (DEDC) on March 29.

The public inquiry and the DEDC are two review mechanisms established by the Emergencies Act.

Beatty was also shown to have direct communication with Deputy Prime Minister Chrystia Freeland on the issue of the invocation, with text messages being filed as evidence during the inquiry.

“There are also lots of long term issues we need to consider once this is over, including whether we need to take other measures that could obviate the need to use the extraordinary powers in the Act in the future, and how to repair holes in our political system,” Beatty told Freeland on Feb. 22, 2022.

Lee Harding and Peter Wilson contributed to this report.