Ottawa Rejects Commission’s Recommendation to Disclose Emergencies Act Documents

Final preparations are made prior to the start of the Public Emergency Order Commission in Ottawa on Oct. 13, 2022. The Canadian Press/Sean Kilpatrick

Ottawa has rejected a Public Order Emergency Commission recommendation to disclose documents pertaining to potential future usage of the Emergencies Act, saying that cabinet confidentiality outweighs the public interest.

“The Supreme Court of Canada has recognized that the constitutional convention of cabinet confidentiality is essential to good government as it protects the public’s interest in ensuring that the executive branch of government can conduct its internal business in private,” the federal government said in its March 6 response to the Public Order Emergency Commission (POEC).

Ottawa invoked the Emergencies Act on Feb. 14, 2022, in response to the Freedom Convoy protest, which saw protestors and their vehicles encamped in Ottawa to demonstrate against COVID-19 vaccine mandates.

The POEC, created in the aftermath of the act’s use, found cabinet had met the “very high” threshold needed to invoke the act. A Federal Court took a differing position when it ruled in January the use of the act in response to the protest was “unreasonable” and unjustified, and infringed on Canadians’ charter rights.

The PEOC report included 56 recommendations for federal government, police and intelligence agency responses to future emergencies. One recommendation said any future government that declares a public order emergency should provide the resulting commission of inquiry with “all of the inputs to Cabinet and to ministers on the issue.” This would include all information and advice given to cabinet ministers.

In response to the recommendation, Ottawa said while the Emergencies Act does not force it to disclose confidential documents to a Commission of Inquiry, the government chose to provide a partial disclosure of information subject to cabinet confidentiality in this case “on an exceptional and voluntary basis.”

The government said the decision to disclose such information can only be made after the public’s interest is weighed against the maintenance of cabinet confidentiality.

“Should the Emergencies Act be invoked in the future, it will therefore fall to the government of the day to perform that fact-specific public interest balancing analysis before deciding whether a future commission of inquiry should be granted access to information subject to cabinet confidentiality,” it added.

“It is for parliament to decide whether any adjustments to parliamentary privilege are required,” the government said in response to a separate recommendation that the Emergencies Act be amended to clarify that parliamentarian privilege cannot be claimed to refuse testimony before a commission of inquiry.

Attorney General Arif Virani and Public Safety Minister Dominic LeBlanc refused Feb. 27 to provide a special joint committee with the legal decision the government used to justify invoking the Emergencies Act.

“Solicitor-client privilege is foundational to the development of legal advice in a candid and frank manner,” Mr. Virani said.

Additional Recommendations

Another recommendation from the report was that the definition “threats to the security of Canada” be removed from the Emergencies Act, as the definition was incorporated from the Canadian Security Intelligence Service Act. POEC Commissioner Paul Rouleau previously said that the CSIS Act and Emergencies Act operated independently from one another and served different purposes.

The government said there is an ongoing litigation on issue, adding Ottawa will “carefully consider those decisions, along with other factors, with a view to assessing whether any amendments to the Emergencies Act are necessary.”

Ottawa also wrote that it agreed with the recommendation to consult with provincial, territorial and indigenous groups to identify critical trade corridors and infrastructure, saying that a new national strategy for critical infrastructure will be released before the end of 2024.

The government also said a working group involving Public Safety Canada, Public Services and Procurement Canada, the Privy Council Office, and law enforcement agencies are examining policing issues related to the parliamentary precinct and surrounding area, which was a recommendation of the POEC.

Ottawa was given a one-year deadline to provide its response to the POEC report released Feb. 18, 2023 but missed the deadline, which was not legally binding.