Emergency Was ‘Charter Compliant’ Says Minister While Refusing to Provide Supporting Analysis

Emergency Was ‘Charter Compliant’ Says Minister While Refusing to Provide Supporting Analysis
Police confront participants of the Freedom Convoy protest after the Emergencies Act was invoked, on Feb. 19, 2022. (Scott Olson/Getty Images)
Noé Chartier

Canada’s minister of justice testified before a special joint committee on April 26 that the first-time invocation of the Emergencies Act and associated measures by his government were “Charter compliant,” yet he does not intend to provide the committee with supporting analysis.

Throughout the meeting of the Special Joint Committee on the Declaration of Emergency, which is composed of MPs and senators from different parties and groups, Minister of Justice David Lametti repeatedly asserted cabinet confidence and solicitor-client privilege and didn't provide answers to questions posed by lawmakers.

“Minister, I preface my question by saying I fully understand and agree with cabinet confidence and with client-solicitor privilege, but I want to talk about Charter compliance and vehicles that the government does use to assure parliamentarians of compliance,” said Sen. Peter Harder of the Progressive Senate Group.

Harder said that when individual bills are presented, the minister of justice also presents a Charter compliance document, and so he asked if Lametti would contemplate providing the committee with a statement of Charter compliance.

Lametti replied he is not required to provide it. Under the Emergencies Act, he only has to “make sure that it is compliant with the Charter, and I have given you the conclusions that I have come to, that what we have done is Charter compliant,” he said.

The Emergencies Act replaced the War Measures Act in 1988, and was designed with the intention to better protect civil liberties enshrined in the Canadian Charter of Rights and Freedoms.

The government invoked the Act on Feb. 14 to deal with the cross-country protests and blockades demanding the lifting of COVID-19 restrictions.

Along with the special committee, the government’s action will be subject to an inquiry and it is also before the federal court, being challenged by civil liberties groups.

Lametti did not mention cabinet confidence and solicitor-client privilege to justify not providing the requested document, only that he is not required to by law.

In many other instances of the meeting, Lametti did bring up these concepts to avoid answering questions.

When asked by Bloc Québécois MP Rhéal Fortin if he had received some written advice with regards to invoking the Act, Lametti said he could not answer.

“What facts or considerations did he provide in providing advice to the language of the invocation that would have considered section 2, subsection D of the CSIS Act?” asked NDP MP Matthew Green, a strong detractor of the Freedom Convoy protesters who likens them to terrorists.

Section 2(d) of the CSIS Act relates to threats intended to violently overthrow the government.

Lametti said he could not respond.

Lametti was asked by Harder at which point the government felt the Act was the best choice for the government to deal with the protests, but Lametti again cited cabinet confidence.

“We invoked the Emergencies Act when it became clear to us that first of all, the situation was national in scope, that we had met the threshold definitions under the Act, and that the provinces or other local authorities were not capable of handling it on their own,” Lametti said.

Lametti also refused to say if provincial attorneys general were consulted.

Conservative MP Glen Motz said Lametti was not being forthcoming.

“It would be remiss not to remind that we all have a duty, including yourself, sir, to be fully transparent and accountable to the Canadian public, and that's one of the reasons why we're having this review as well as inquiry,” Motz said.

“I know it's easy to hide behind cabinet confidence, but that doesn't give the Canadian public confidence.”


Minister of Public Safety Marco Mendicino had testified before Lametti and repeated government claims that Freedom Convoy protesters sought to overthrow the government by violent and non-violent means, mentioning the “Memorandum of Understanding” (MOU) that had been published on a protest organizing website.

That MOU said protesters should league with the Senate and the governor-general to remove the Trudeau government and lift pandemic restrictions. It was later removed from the web to avoid “unintended interpretations,” the originator said.

Lametti was asked repeatedly by Conservative MP Larry Brock if he interpreted the MOU as a “violent insurrection against the Canadian government.”

“It’s a silly question. I took the manifesto for what it was and I gave it the weight that it deserves,” Lametti said, acknowledging previously in the exchange that it was a factor used to justify declaring the public order emergency.

There is much disagreement on what happened during those three weeks in Ottawa this winter, when the trucker-led Freedom Convoy blocked the downtown core and thousands of people poured in with Canadian flags and placards.

While protesters held dance parties, children played in bouncy castles, and free-hugs groups walked around, detractors and some residents complained of noise, pollution, inconvenience, and harassment.

“Anybody who thinks that the assembly here in Ottawa was peaceful didn't really see it up close,” Lametti said at the meeting.

“I am proud that we did not bring in the army, and I am proud that we resolved this situation without injury, that we resolved it peacefully.”

Footage of the police clearing operation on Feb. 18 showed protesters being beaten, and one woman was injured by mounted police, while protesters remained non-violent.