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Solicitor-client privilege on Emergencies Act creates ‘black box,’ inquiry hears


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By Stephanie Taylor, Lee Berthiaume and Marie-Danielle Smithin Ottawa

Justice Minister David Lametti repeatedly invoked solicitor-client privilege in his testimony at a public inquiry on Wednesday as he refused to reveal the legal basis for the Liberal government’s decision to invoke the Emergencies Act earlier this year.

That leaves a critical question so far unanswered: What legal advice did the federal government rely on to invoke the act last winter, for the first time since it became law in 1988?

Testifying before the Public Order Emergencies Commission, Lametti confirmed that he raised the idea of using the Emergencies Act only one day after the official start of the “Freedom Convoy” demonstration in on Jan. 29.

The confirmation came after the inquiry was shown text messages between the justice minister and his chief of staff on Jan. 30 in which the former mentioned the Emergencies Act.

Lametti testified he did so because he knew if the government decided the act was needed, there would have to be consultation and discussions about whether the standards had been met ⁠— and he wanted the Department of Justice to prepare for the possibility.

“The worst scenario would be something explodes, and we are not ready to use it because we haven’t done the kinds of consultations necessary, or asked the appropriate questions to the appropriate people in order to get it done. So this is me being prudent.”

The inquiry also heard that the justice minister mused early in the crisis about possibly sending in the Canadian Armed Forces, and dismissed former Ottawa police chief Peter Sloly as being “incompetent” in handling the situation.

Yet Lametti, who also serves as attorney general, the government’s top legal adviser, would not offer any insight into the process by which Liberal cabinet ministers determined the act was necessary to restore order in the capital and at several border crossings with the U.S. 

Even before he began answering questions, government lawyer Andrea Gonsalves told the commission that the Liberal government would not waive its right to solicitor-client privilege, which protects legal advice from being publicly revealed.

During his testimony Lametti explained solicitor-client privilege “is not mine to waive,” and the decision would instead be up to the governor-in-council.

“I would, in probably virtually all cases, advise that it shouldn’t be waived, simply because it is such an important fundamental principle.”

Commission lawyer Gordon Cameron says Lametti’s inability to detail any of the legal grounds on which the government declared the convoy to be a national emergency puts them and others at the inquiry in a “conundrum.” 

“We have throughout, from the beginning of this proceeding through to now, attempted to find a way to lift the veil that has made such a black box of what has turned out to be a central issue,” Cameron said.

“We just regret that it ends up being an absence of transparency on the part of the government in this proceeding.” 

The Emergencies Act identifies a public order emergency as a threat to Canada’s security, as defined in the Canadian Security Intelligence Service Act.

That definition includes espionage or sabotage of Canada’s interests, foreign influence, acts of serious violence against people or property with political, religious or ideological objectives, or the violent overthrow of the Canadian government.

While no such threat materialized during the “Freedom Convoy” protests, Canadian Security Intelligence Service director David Vigneault testified on Monday that he told the prime minister he supported the decision to invoke the Emergencies Act.

Vigneault said he was satisfied that a threat to national security had to be interpreted differently in the context of the Emergencies Act after he received advice from the Department of Justice.

For his part, Lametti told the commission that it was ultimately up to cabinet — not CSIS — to decide whether circumstances met the threshold required for the act to be invoked.

“What Parliament did not do with the creation of the Emergencies Act was delegate the decision-making to CSIS,” he said.

He later added: “There are other inputs that can go into the meeting of that definitional standard that CSIS wouldn’t normally use.”

Lametti was the first of three high-profile cabinet ministers expected to appear Wednesday at the Public Order Emergency Commission, which is holding its final days of hearings after more than five weeks of testimony.

The documents submitted into evidence on Wednesday included private text message conversations between Lametti and fellow Liberals. That included an exchange between Lametti and Public Safety Minister Marco Mendicino on Feb. 2.

“You need to get the police to move,” Lametti wrote. “And the (Canadian Armed Forces) if necessary. Too many people are being seriously adversely impacted by what is an occupation. I am getting out as soon as I can.”

He went on to tell Mendicino that people were looking to them for leadership — “and not stupid people.”

Mendicino responded: “How many tanks are you asking for?” Lametti replied, “I reckon one will do.”

Lametti later told the inquiry that the message was a joke, and that the military was never considered a real option during the protests.

Two days later, in another text to Mendicino, Lametti called then-Ottawa police chief Peter Sloly incompetent. Asked about that statement, Lametti admitted to the inquiry that he had felt frustrated.

“My life had been altered by this,” he said. “My staff was being harassed when they went into work by convoy members who took issue with them wearing masks, particularly my female staff members on my ministerial team. And I was quite frustrated, I will admit.”

The commission was also shown texts between Lametti and Liberal backbencher Greg Fergus, who complained on Feb. 13 that Mendicino was “talking talking talking” to caucus members about better co-ordination between police forces.

“Our only other legal option is the emergencies act,” Lametti responded.

“That is exactly where people are at,” Fergus responded. “It is where I am at.”

Lametti responded: “And me. And Marco, but he is being a good soldier.”

This report by The Canadian Press was first published Nov. 23, 2022.

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Quebec says only people at risk who haven’t had COVID-19 should get booster dose

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Only people who are considered at risk for severe COVID-19 — and who haven’t already been infected — need to get a booster dose, Quebec’s public health director said Thursday.

The vast majority of Quebecers have hybrid immunity — protection through vaccination and through a SARS-CoV-2 infection — making regular boosters unnecessary, at least for this winter and spring, Dr. Luc Boileau told reporters.

“People with hybrid immunity … have a very good protection against a severe form of the illness,” Boileau said. “And this immunity lasts for a long enough time that we can propose changes.”

Those who have been vaccinated but haven’t contracted the virus are also protected against severe COVID-19, he said, but their immunity “has a tendency to drop with time.”

Quebec’s vaccination committee decided to focus the province’s immunization policy on preventing hospitalizations and deaths, he said. People who are 60 and older or who have chronic illnesses, health workers, pregnant women and those who live in isolated regions are among the people who should get a booster every six months — but only if they have never caught the virus, Boileau said.

Dr. Caroline Quach-Thanh, chairperson of Quebec immunization committee, said the data shows that people already vaccinated for COVID-19 who have contracted the virus “maintain their protection.”

“Adding a dose doesn’t add a lot protection for severe (illness),” she said.

Health officials estimate that more than three-quarters of Quebecers under 60 have had COVID-19 over the past three years, while about half of those over 60 have caught the virus.

Boileau said only people who are immunocompromised should continue getting boosters even if they’ve been infected, “because their immunity could be affected by their condition.”

Before Thursday’s announcement, boosters were recommended for all people considered at risk of severe COVID-19. Boileau said COVID-19 vaccines will remain available to anyone who wants one. “We won’t refuse anyone,” he said.

This report by The Canadian Press was first published Feb. 2, 2023.

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‘The eyes of the world’: Trial starts for Calgary pastor charged in border blockade

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By Bill Graveland in Lethbridge

A court has seen video of a Calgary pastor encouraging truckers to keep blocking the Canada-U.S. border to protest COVID-19 restrictions because the world was watching.

The trial for Artur Pawlowski began Thursday in southern Alberta on charges of breaching a release order and mischief for inciting people to block public property at the border crossing at Coutts, Alta.

He is also charged under the Alberta Critical Infrastructure Defence Act with the wilfully damaging or destroying essential infrastructure.

The blockade that began in late January 2022 paralyzed Alberta’s main U.S. border crossing for more than two weeks .

The Crown’s case against Pawlowski consists of an agreed statement of facts and the 20-minute video of the speech that the pastor gave to protesters on Feb. 3, 2022.

In it, Pawlowski pleads with truckers to stay the course and not leave the protest, which was aimed at COVID-19 restrictions and vaccine mandates.

Pawlowski visited the group at Smuggler’s Saloon, a location that became their headquarters. At the time, protesters were considering whether to leave Coutts for Edmonton to demonstrate in front of the legislature.

“I believe that the eyes of the world are fixed on this place right here. That’s right — this little pitiful piece of land,” Pawlowski told a cheering crowd in the video played for provincial court Judge Gordon Krinke in Lethbridge, Alta.

“The eyes of the world are fixed right here on you guys. You are the heroes. Don’t you dare go breaking the line.

“For the first time in two years, you have the power. You pack your stuff, you go to Edmonton and you will be lost.”

The pastor also told the crowd there weren’t enough police or a big enough army to deal with the protesters. He was arrested days later.

Pawlowski was greeted by about 300 supporters outside court Thursday before trial. Some held Canadian flags and signs reading “Free Pastor Pawlowski.”

Pawlowski told the group he had no regrets.

“I told the people this is a peaceful uprising. No guns. No swords. I stand by what I said a year ago,” he said outside of court.

“I am proud that I stood with the people that simply stood for their God and state. Our rights do not belong to the politicians or bureaucrats or even judges or Crown prosecutors. They belong to us, the people.”

Prosecutor Steve Johnston said the court must determine whether Pawlowski is guilty because he was a party to the events, and the Crown argues that he was.

The defence said it would not be calling witnesses in the trial, and closing arguments were expected Thursday afternoon.

This report by The Canadian Press was first published Feb. 2, 2023

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