The Trudeau government is refusing to reveal what information it used to justify invoking the Emergencies Act to crack down on peaceful Freedom Convoy protests in Ottawa in February.
The Canadian Constitution Foundation (CCF) and the Canadian Civil Liberties Association are among the groups who have taken the government to court. The Alberta government is also seeking to join the case as an intervenor.
The legal organizations are accusing the government of acting unlawfully, saying existing laws, such as the Criminal Code and traffic laws, would have been sufficient to address the convoy protests.
In response to the government’s cabinet-secrecy claim, the CCF compared Ottawa’s approach to a phrase attributed to King Louis XIV of France in the 17th century: “L’état, c’est moi.” (I am the state.)
According to the Canada Evidence Act, when the government incites “cabinet confidentiality,” the federal court will refuse to examine or hear evidence relating to the case. However, the CCF is asking the court to instruct the government to reveal information specifically to the judge and counsel.
“To discharge its constitutional function, the court must have before it a full record and consider those materials in a fully adversarial proceeding,” the CCF said in its filing. “Without these materials and procedure, this court may feel ‘a little bit like a fig leaf.’”
The CCF has said it believes the government has information on Public Safety Minister Marco Mendicino’s submissions on the factual and legal basis for emergency measures, options considered and rejected and a record of cabinet’s decisions – including a vote.
The Trudeau government invoked the never-before-used Emergencies Act on Feb. 14, saying the legislation’s powers were required to deal with ongoing protests against pandemic restrictions, including the Freedom Convoy in Ottawa.
Trudeau refused to revoke the act even after a joint force of municipal, provincial and federal police cracked down on freedom protesters between Feb. 17 and 20. Mounting opposition to the government’s decisions both to implement and prolong the Emergencies Act concluded with Trudeau revoking it on Feb. 23.
Trudeau said that invoking the act had been “the responsible and necessary thing to do.”