A top federal official said on Nov. 14 that discussions Ottawa held with provinces on how to clear convoy protests counted as consultation for the use of Emergencies Act. His comments come amidst claims by some provinces that the federal government had made the decision to invoke the act before consulting with them as required by law.
“We had been actively engaged for over two weeks, with a variety of concerned parties, including police of jurisdiction, RCMP, federal, provincial officials, and we were not on the face of it asking the question ‘should we invoke the Emergencies Act?’ We were asking, what tools do you need? What are you facing in terms of challenges? How can we work together to overcome these challenges?” testified former deputy minister of Public Safety Rob Stewart at the Public Order Emergency Commission.
“And so we deemed that to be consultation on what was ultimately the decision to invoke the act, because it is about the substance of that decision.”
Section 25 of the Emergencies Act says that the “lieutenant governor in council [i.e. first minister] of each province in which the effects of the emergency occur shall be consulted with respect to the proposed action.”
Stewart, who is now deputy minister of International Trade, hence suggested that the formal consultation with premiers before invoking the act on the morning of Feb. 14 had no impact on the government’s decision.
The announcement that a public order emergency would be declared was made later that day.
‘Silence!’
Before the first ministers’ call took place, Stewart told his province of Ontario counterpart that the Liberal government had made a decision on the topic of invoking the act, but he wouldn’t clarify what that decision was.Stewart was asked by the commission to comment on the handwritten notes of his counterpart Mario Di Tomasso, deputy solicitor general for Ontario, which had been entered as evidence last week.
“I am informed the PM [Prime Minister] made a decision, that FM [first ministers] meeting called followed by press conference. Cabinet meeting held last night,” say Di Tomasso’s notes about a call he had with Stewart at around 8:55 am on Feb. 14.
“I advise from my perspective that sounds like federal gov invoking Emergencies Act. Silence from Rob Stewart,” wrote Di Tomasso.
It was the second time during the call that Di Tomasso raised the issue. The first time he had asked directly whether the act would be invoked, according to his notes. “Silence!” Di Tomasso wrote about Stewart not answering the question.
Stewart told the commission he did not respond to avoid betraying his employer.
“I would have been trying to be a good colleague, with a provincial colleague, but not at the expense of betraying any federal decisions,” he said.
Shortly after the call between Stewart and Di Tomasso, Trudeau held the call with the premiers of provinces and territories.
Handwritten notes on that meeting from Trevor Holloway, a senior intergovernmental officer with the executive council and the office of Saskatchewan Premier Scott Moe, were entered as evidence last week.
Consultation
The Province of Saskatchewan has taken the position before the Emergencies Act inquiry that Trudeau had decided to invoke prior to consulting.Mike Morris, director of litigation for the civil law branch of Saskatchewan’s Ministry of Justice, commented on the call between Trudeau and the first ministers at the commission on Oct. 13.
“That phone call was the first time the federal government told the government of Saskatchewan that it was considering invoking the Emergencies Act and declaring a public order emergency,” Morris said.
“Saskatchewan’s position is that the federal government had already determined that a nationwide emergency would be declared before the first minister’s call on February 14. The call was not so much about consulting, as it was about telling.”
The province of Alberta has taken the same position at the commission.
First Ministers’ Views
The handwritten notes from Trudeau’s deputy chief of staff Brian Clow, and Holloway’s, were both entered as evidence last week. Each provide an account of the different views expressed by the first ministers of provinces and territories during the call with Trudeau.Former Alberta premier Jason Kenney said invoking the act could be a “net negative,” according to both accounts.
“Last time we had FMM [First Ministers’ Meeting], I asked that you not proceed with trucker mandate. It was unnecessary provocation,” Kenney is paraphrased as saying according to Clow’s notes.
“Not about truckers,” Trudeau replied according to Holloway’s notes.
Other premiers also thought invoking the act would inflame the situation, according to Holloway’s notes, such as Manitoba’s Heather Stefanson, Saskatchewan’s Scott Moe, New Brunswick’s Blaine Higgs, Prince Edward Island’s Dennis King, Nova Scotia’s Tim Houston, and Newfoundland and Labrador’s Andrew Furey.
British Columbia’s John Horgan said he “certainly” supported the invocation, according to Clow’s notes, but he noted it could “embolden potential demonstrators. I do worry too heavy a hand.”
Doug Ford of Ontario was noted as supportive, meanwhile François Legault supported “Doug on what’s happening in Ottawa,” according to Holloway’s notes. But Legault did not want for the act to apply in Quebec and was noted as “strongly opposes in Qc,” in Clow’s notes.
“I don’t want blood on my hands,” reportedly said Caroline Cochrane of the Northwest Territories.
“I support the emergency measures, but if you’re thinking army, consult us again,” Cochrane said, according to Clow’s notes.
Trudeau reportedly said he was in agreement. “Military is last resort.”
