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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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Alberta

Two deputy chief medical officers resign from their positions with Alberta Health

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Edmonton – Alberta’s two deputy chief medical officers of health are leaving their roles — less than a month after Dr. Deena Hinshaw was removed as the province’s top doctor.

Health Minister Jason Copping confirmed during question period Wednesday that both of the doctors have submitted letters of resignation.

“They are still continuing to work at this point in time,” he said in the legislature. “We are in the process of actually looking to fill those roles.”

A statement from Alberta Health said Dr. Rosana Salvaterra and Dr. Jing Hu, who are listed as public health physicians on the department’s website, have given notice.

When reached by her department email, Salvaterra responded: “Unfortunately, we are not able to comment.”

She later added that she respects and admires both Dr. Hinshaw and Dr. Hu.

“They are brilliant, hard-working, and compassionate public health physicians and I consider myself fortunate to have had the opportunity to work alongside them for these past 14 months.”

Salvaterra, who has extensive public health experience including as the medical officer of health for Peterborough, Ont., joined the office in October 2021.

Her career in public health includes work in “the COVID-19 response, mental health, the opioid response, women’s health, poverty reduction, health equity, community food security and building stronger relationships with First Nations.”

Hu’s out-of-office message said her “last day at work with Alberta Health was Nov. 18, 2022,” and noted she wouldn’t have access to the department email after that date.

She got extensive training in China and at the University of Calgary before joining the health department in January 2020.

Their resignations came within a month of Hinshaw, who became the face of Alberta’s public health response to the COVID-19 pandemic, being removed from her position.

Hinshaw was replaced by Dr. Mark Joffe, a senior executive member of Alberta Health Services, on an interim basis.

“Dr. Joffe will be supported by medical officers of health within AHS, by other staff in the Office of the Chief Medical Officer of Health, and by the Public Health Division,” said the statement from Alberta Health late Wednesday.

“We expect these changes to have no impact on the department’s and Dr. Joffe’s ability to meet the requirements of the Public Health Act.”

Hinshaw’s dismissal didn’t come as a surprise.

Premier Danielle Smith announced on her first day in office in October that she would be replaced.

Smith has made it clear that she blames both Hinshaw and Alberta Health Services for failing to deliver the best advice and care for Albertans as the hospital system came close to buckling in successive waves of the COVID-19 pandemic.

“A lot of the bad decisions were made by Alberta Health Services on the basis of bad advice from the chief medical officer of health,” Smith told reporters on Oct. 22.

Smith has not placed the blame on front-line doctors and nurses but broadly on AHS senior management. Joffe, while serving as chief medical officer of health, retains his role in AHS senior management as a vice-president responsible for areas in cancer and clinical care.

Hinshaw, an Alberta-trained public health specialist, became a celebrity of sorts in the first wave of the pandemic in the spring of 2020, as she delivered regular, sometimes daily, updates to Albertans on the virus, its spread and methods to contain it.

This report by The Canadian Press was first published Dec. 7, 2022.

— By Colette Derworiz in Calgary.

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COVID-19

China eases anti-COVID measures following protests

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By Joe Mcdonald in Beijing

BEIJING (AP) — China rolled back rules on isolating people with COVID-19 and dropped virus test requirements for some public places Wednesday in a dramatic change to a strategy that confined millions of people to their homes and sparked protests and demands for President Xi Jinping to resign.

The move adds to earlier easing that fueled hopes Beijing was scrapping its “zero COVID” strategy, which is disrupting manufacturing and global trade. Experts warn, however, that restrictions can’t be lifted completely until at least mid-2023 because millions of elderly people still must be vaccinated and the health care system strengthened.

China is the last major country still trying to stamp out transmission of the virus while many nations switch to trying to live with it. As they lift restrictions, Chinese officials have also shifted to talking about the virus as less threatening — a possible effort to prepare people for a similar switch.

People with mild cases will be allowed for the first time to isolate at home, the National Health Commission announced, instead of going to sometimes overcrowded or unsanitary quarantine centers. That addresses a major irritation that helped to drive protests that erupted Nov. 25 in Shanghai and other cities.

Public facilities except for “special places,” such as schools, hospitals and nursing homes, will no longer require visitors to produce a “health code” on a smartphone app that tracks their virus tests and whether they have been to areas deemed at high risk of infection.

Local officials must “take strict and detailed measures to protect people’s life, safety and health” but at the same time “minimize the impact of the epidemic on economic and social development,” the statement said.

China’s restrictions have helped to keep case numbers low, but that means few people have developed natural immunity, a factor that might set back reopening plans if cases surge and authorities feel compelled to reimpose restrictions.

Still, after three years spent warning the public about COVID-19’s dangers, Chinese officials have begun to paint it as less threatening.

People with mild cases “can recover by themselves without special medical care,” said Wu Zunyou, chief epidemiologist of the China Centers for Disease Control, on his social media account.

“The good news is that the data show the proportion of severe cases is low,” said Wu.

The latest changes are “small steps” in a gradual process aimed at ending restrictions, said Liang Wannian, a member of an expert group advising the National Health Commission, at a news conference.

The government’s goal is “to return to the state before the epidemic, but the realization of the goal must have conditions,” said Liang, one of China’s most prominent anti-epidemic experts.

Dr. Yanzhong Huang, an expert on public health in China, also emphasized the gradual nature of the announcement.

The new measures are a shift away from “zero COVID” — but “not a roadmap to reopening,” said Huang, director of the Center for Global Health Studies at Seton Hall University.

“When implemented, these measures may generate dynamics that fuel the rapid spread of the virus even though China is not ready for such a dramatic shift,” he said.

The government announced a campaign last week to vaccinate the elderly that health experts say must be done before China can end restrictions on visitors coming from abroad. They say the ruling Communist Party also needs to build up China’s hospital system to cope with a possible rise in cases.

But public frustration is rising now, as millions of people are repeatedly confined at home for uncertain periods, schools close abruptly and economic growth falls.

The changes have been rolled out despite a renewed spike in infections started in October. On Wednesday, the government reported 25,231 new cases, including 20,912 without symptoms.

Xi’s government has held up “zero COVID” as proof of the superiority of China’s system compared with the United States and Western countries. China’s official death toll is 5,235 since the start of the pandemic versus a U.S. count of 1.1 million.

Rules were left in place that warn apartment and office buildings might be sealed if infections are found. Complaints that families are confined for weeks at a time with uncertain access to food and medicine were a key driver of the protests.

The ruling party switched early this year to suspending access to neighborhoods or districts where infections were discovered instead of isolating whole cities.

On Wednesday, the government said the scope of closures will be narrowed still further to single apartment floors or buildings instead of neighborhoods.

It said schools in communities with no outbreaks must return to in-person teaching.

That appeared to be a response to complaints that local leaders, threatened with the loss of their jobs in the event of outbreaks, impose closures that are destructive, might be unnecessary and exceed what the central government allows.

The demonstrations in at least eight major cities and on dozens of university campuses were the most widespread display of public dissent in decades. In Shanghai, some protesters shouted the politically explosive demand for Xi, China’s most influential figure in decades, to resign.

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