Groups say probe hinges on release of secret details

Government says meeting minutes, sought documents fall under principle of cabinet secrecy

OTTAWA Canada’s Federal Court needs information the government claims is secret to properly review whether the first use of the Emergencies Act — to end the so-called “Freedom Convoy” protests this winter — violated constitutional rights, civil liberties groups say.

The groups made their case before Justice Richard Mosley on Monday, while the federal government responded that the information they seek falls under the established principle of cabinet confidentiality.

A government lawyer described one group’s efforts to obtain documents as a “classic fishing expedition” based on speculation.

The case comes as Prime Minister Justin Trudeau’s Liberal government has pledged to be open about why it invoked the Emergencies Act to deal with protesters who occupied the streets around Parliament Hill for about three weeks in January and February to voice opposition to the Trudeau administration and COVID-19 health measures.

In June, amid calls from the opposition to waive cabinet confidentiality, the government pledged to provide all “inputs” cabinet used to make the decision to a public inquiry investigating the affair. A spokesperson for the inquiry said Monday it is working with the government to obtain relevant documents, including from the federal cabinet.

The Privy Council Office — the branch of the civil service that support’s the Prime Minister’s Office — also told the Star last month that it would provide requested cabinet confidences to a parliamentary committee studying the use of the Emergencies Act.

Matthew Green, a New Democrat MP who is co-chair of the committee, told the Star Monday that the body had not yet received any such documents.

Meanwhile, in Federal Court, Canadian Constitution Foundation lawyer Sujit Choudhry argued the government should provide relevant cabinet secrets, regardless of what the inquiry and committee receive. The court has a “distinct role” as a judicial body, and all facts that prompted the government to invoke the Emergencies Act should be tested in an adversarial legal setting, he said.

The Canadian Constitution Foundation and the Canadian Civil Liberties Association launched separate legal challenges of the decision in February. The groups argue the crisis surrounding the “Freedom Convoy” protests failed to meet the legal bar for declaring an emergency under the act — that no other law in Canada can be used to deal with a serious crisis — and that the special powers granted to police and financial institutions violated the Charter of Rights and Freedoms.

Choudhry also criticized the federal government’s response to their demands for more information. Documents provided so far, including minutes from February meetings of the Incident Response Group chaired by Trudeau, are so heavily redacted as to be “unintelligible,” he said in court Monday.

Choudhry is asking Mosley to rule that lawyers from the civil liberties groups can review the unredacted information in a closed session of court.

“If the government had made different decisions about what record to put before this court — a proper record — then we would not be here,” Choudhry said.

“We are here because the government has left us no choice to try to get the truth.”

Ewa Krajewska, a lawyer for the Canadian Civil Liberties Association, noted the government’s public justification for invoking the act referred to “robust” discussions at the Incident Response Group, but that the redacted disclosure of the group’s meeting minutes does not reveal any facts that led to the cabinet decision.

Arguing this is evidence of a “steady trajectory to take anything that any ministers do together and envelop it into cabinet confidence,” Krajewska said that if the government does not provide the sought documents, she will ask the court to draw the “negative inference” that the information was “not going to be helpful to the government, and that’s why they decided not to disclose it.”

Christopher Rupar, a lawyer for the federal attorney general, dismissed the arguments as illegitimate. Pointing to how the principle of cabinet confidentiality has been passed into legislation and upheld by the Supreme Court of Canada, Rupar said the Federal Court can’t override that based on the groups’ arguments.

“The whole purpose of what the clerk is doing here is protecting cabinet confidence,” Rupar said.

Another government lawyer, Kathleen Kohlman, said Choudhry and the constitution foundation are relying on speculation about what the confidential information could contain as they seek access to meeting minutes from after the emergency declaration was made on Feb. 14, until it was revoked on Feb. 23.

“The case seeking further (information) is that classic fishing expedition that’s warned against in the case law in many places,” Kohlman said.

Mosley said he expected to make a decision on the cabinet documents within the next two weeks.