Motion to Parliament to find Minister of Justice in contempt.
for the refusal to provide the legal opinion justifying their use of the Emergencies Act against law abiding Canadians.
Larry Brock Brantford—Brant, ON
Madam Speaker, I am rising further to the notice I provided to the Chair under Standing Order 48 concerning the third and final report of the Special Joint Committee on the Declaration of Emergency, which was tabled in the House of Commons earlier today.
In brief, on May 31, 2022, the committee adopted an order for the production of several unredacted documents related to the government's declaration of a public order emergency in February 2022, as well as the regulations and orders that were imposed in relation to it.
The committee was particularly concerned with receiving, and specifically ordered, the production of a copy of the government's legal opinion for invoking the Emergencies Act. As outlined in the report, the then deputy minister of justice and deputy attorney general of Canada wrote to the committee refusing to produce the legal opinion.
The material facts are outlined in the third report's chapter 10, aptly titled “Access to Information and Documents”. I will recap the essential points for the benefit of those who are not familiar with this particular saga, followed by citing pertinent authorities.
In establishing the special joint committee, the House conferred upon it, among other authorities, the power to send for persons, papers and records. I would refer the Chair to subparagraph (m)(ii) of the motion adopted on March 2, 2022, found at pages 471 to 473 and 480 to 484 of that day's Journals. The Senate conferred the identical authority on the committee in subparagraph (l)(ii) of the motion, adopted on March 3, 2022, as recorded in a message that the House received and published at pages 487 to 490 of the Journals for that day.
This being the first ever invocation of the Emergencies Act, the mandate to be pursued by the parliamentary review committee required by law to be appointed was something to be settled. As mentioned in the eighth paragraph of chapter 2 of the third report, the committee adopted a motion that, among other things, articulated the scope of the study it would initially pursue. The mandate included “the options that the Government of Canada utilized during the invocation of the Emergencies Act” and in the “study of each option...the necessity, implementation, and impact of that option.”
Seized with the House's authority to compel the production of documents, the committee sought to do just that with a view to discharging the mandate it had defined. As the committee explains in the 10th paragraph of chapter 10 of the third report, “The Committee also learned that an internal federal government legal opinion had been drafted to determine whether invoking the Emergencies Act was justified under the circumstances, but the Committee was unable to obtain a copy given that solicitor-client privilege was invoked.”
We have since come to know, thanks to the access to information system, that it is a 10-page opinion and forms tab C of the Clerk of the Privy Council's February 14, 2022, memorandum to the Prime Minister to secure his formal approval for invoking the Emergencies Act.
The committee elaborated on this matter later in chapter 10, beginning at paragraph 15, which stated:
It is worth noting that on 31 May 31 2022, the Committee adopted a motion ‘[t]hat an Order do issue for all security assessments and legal opinions which the government relied upon in determining that’ the various thresholds under the Emergencies Act had been met and that the temporary measures exercised under the Act were consistent with the Charter.
For the benefit of the Chair and the House, this is the full text of the order that the Committee had adopted:
That an Order do issue for all security assessments and legal opinions which the government relied upon in determining that
(a) the threshold of “threats to [the] security of Canada”, as defined by section 2 of the Canadian Security Intelligence Service Act, required by section 16 of the Emergencies Act, had been met;
(b) the thresholds required by paragraphs 3(a) or (b) of the Emergencies Act, concerning a “national emergency” had been met;
(c) the situation could not “be effectively dealt with under any other law of Canada”, as required by section 3 of the Emergencies Act;
(d) the Emergency Measures Regulations were compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act; and
(e) the Emergency Economic Measures Order was compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act,
provided that
(f) these documents shall be deposited with the Law Clerk and Parliamentary Counsel of the Senate, the Law Clerk and Parliamentary Counsel of the House of Commons and any legal counsel which the Committee may appoint, in both official languages, within one month of the adoption of this Order....
Referring back to the special joint committee's third report, the 16th paragraph of chapter 10 described what happened next:
On or around 29 June 2022, a letter in response to the Committee’s document production order was sent by François Daigle of the Department of Justice, in which he writes that “[u]pon full consideration, it is our Department’s determination that all legal opinions in our holdings that would be responsive to the Committee’s order are subject to solicitor-client privilege.” In his letter, he also states the following:
“Although other countries may have occasionally departed from this rule in Canada, it is solely within the discretion of the Government of Canada and its ministers to waive solicitor-client privilege in respect of legal advice provided to the Crown. For reasons of principle and practice, this rarely occurs, and the general rule remains that such advice will normally be withheld from Committees of Parliament, subject to such ministerial discretion and consideration of public policy.”
It is worth mentioning that this letter sets out the grounds for refusal only as they pertain to information protected by solicitor-client privilege, but not by Cabinet confidence.
Elsewhere in Mr. Daigle's letter, found on the committee's website, he wrote bluntly, “I confirm that I am unable to produce legal opinions as sought in the Committee’s order.”
Chapter 10 then recounts several other instances of the committee being stonewalled by government departments claiming various reasons for not complying with the May 31, 2022, document production order. For the sake of brevity, I will jump ahead to the 29th paragraph. It states,
In the two years following the invocation of the Emergencies Act, the Committee recalled some federal witnesses, particularly to obtain answers regarding its multiple requests for access to evidence, including the legal opinion the government relied on before resorting to the Act.
In February 2024, [the current Minister of Justice] reasserted the government's position that the legal advice in question was protected by solicitor-client privilege, which benefits the Government of Canada, the client in this case.
It is also worth mentioning the 14th paragraph of chapter 10, which notes that the committee used a written questioning procedure. It deployed this to gather evidence more efficiently, but it was further stonewalled by the then national security and intelligence adviser to the Prime Minister, Jody Thomas, about the legal opinion. On December 28, 2022, she wrote to the committee and said, “Due to solicitor-client privilege, I respectfully decline to answer this question.” That procedure is described in the special joint committee's minutes for September 22, 2022, as follows: “That the Committee send to each individual organization who appears as a witness written questions submitted by the members of the committee for response”, and there follows a series of details about the procedure.
Going back to chapter 10 of the third report, in the 32nd paragraph, the committee summed up its position, and this is a critical point. It states,
In light of the preceding, the Committee is concerned that it did not have access to all the information and documents that the federal government relied on to invoke the Emergencies Act and the related special temporary measures, in part due to the various types of privilege invoked by many of the witnesses.
In adopting its order on May 31, 2022, the committee was exercising its authority, which is described starting at page 984 of House of Commons Procedure and Practice, third edition, as follows:
The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the types of papers likely to be requested; the only prerequisite is that the papers exist in hard copy or electronic format, and that they are located in Canada. They can be papers originating from or in the possession of governments, or papers the authors or owners of which are from the private sector or civil society (individuals, associations, organizations, et cetera).
In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain portions have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation to justify their position. Companies may be reluctant to release papers which could jeopardize their industrial security or infringe upon their legal obligations, particularly with regard to the protection of personal information. Others have cited solicitor-client privilege in refusing to allow access to legal papers or notices.
These types of situations have absolutely no bearing on the power of committees to order the production of papers and records. No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.
This point was reiterated as recently as the Speaker's ruling on September 26, 2024, at page 25958 of the Debates concerning Sustainable Development Technology Canada documents. Similarly, as noted in Erskine May, 25th edition, at paragraph 38.32, committees of the United Kingdom House of Commons exercise the same powers with the same unlimited scope:
There is no restriction on the power of committees to require the production of papers by private bodies or individuals, provided that such papers are relevant to the committee's work as defined by its order of reference. Select committees have formally ordered papers to be produced by the Chairman of a nationalised industry and a private society. Solicitors have been ordered to produce papers relating to a client; and a statutory regulator has been ordered to produce papers whose release was otherwise subject to statutory restriction.
In recent years, there has been a very high-profile instance of the U.K. House of Commons insisting on the production of government legal opinions when, amidst the Brexit debates on November 13, 2018, it adopted a motion requiring the production of “any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.”
On December 3, 2018, the Attorney General of England and Wales presented to Parliament a command paper which purported to describe the overall legal effect of the EU withdrawal agreement on November 25, 2018. On the same day, he made a statement to the House, neither the command paper nor the statement made reference to the resolution of November 13, 2018, and the command paper did not purport to be a return to the resolution of the House.
Later that day, after representatives of five opposition parties alleged the government had not produced the documents required, Mr. Speaker Bercow ruled that there was a prima facie contempt at column 625 of the official report.
Subsequently, the U.K. House of Commons, on December 4, 2018, adopted the following motion:
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.
In response, the U.K. government produced a complete unredacted copy of the Attorney General's legal advice the very next day. The Attorney General later said that he had complied with the second order of the House, “out of respect of the House's constitutional position”, as reported at paragraph 68 of the U.K. House of Commons Procedure Committee's May 2019 report on the power to send for papers.
A fuller description of these events was detailed in the question of privilege raised by the House leader of the official opposition here in Canada on September 16, 2024, concerning the Sustainable Development Technology Canada documents. I adopt his comments for my own arguments for the proposition that the power to send for papers is superior to solicitor-client privilege.
Our own Speaker Milliken held, in his landmark decision on Afghan detainee documents, on April 27, 2010, at page 2043 of the Debates:
It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded.
As has been noted earlier, procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of government documents, even those related to national security.
Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.
We would do well to recall that the declaration of emergency committee's order concerned the legal opinion that was relied upon to justify the invocation of the Emergencies Act, a decision that allowed cabinet to legislate without regard to the authority of Parliament or to the usual constitutional division of powers.
In a March 9, 2011, ruling, Speaker Milliken cited page 281 of Sir John Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition:
But it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.
From there, the Chair added, at page 8841 of the Debates:
It may be that valid reasons exist. That is not for the Chair to judge. A committee empowered to investigate the matter might, but the Chair is ill-equipped to do so. However, there is no doubt that an order to produce documents is not being fully complied with, and this is a serious matter that goes to the heart of the House's undoubted role in holding the government to account.
In the present case, the declaration of emergency committee has put the House, both Houses actually, on notice that, “the committee is concerned that it did not have access to all the information and documents that the federal government relied on to invoke the Emergencies Act and the related special temporary measures”.
Before concluding, I wish to address briefly Ms. Thomas' failure to answer the committee's written question. Page 1078 of Bosc and Gagnon reminds us:
There are no specific rules governing the nature of questions which may be put to witnesses appearing before committees, beyond the general requirement of relevance to the issue before the committee. Witnesses must answer all questions which the committee puts to them...if the committee agrees that the question be put to the witness, the witness is obliged to reply.... The actions of a witness who refuses to answer questions may be reported to the House.
This is what has now happened here, and I would submit that it contributes to the overall concern about the government denying the special joint committee the information it sought.
Finally, I will turn to the remedy I would propose, namely to have the House order the production of the documents in question. I would submit that that would be a proper remedy in the present case. Bosc and Gagnon discusses, at pages 138 and 987, the scenario in which a committee would report to the House on a case of disobedience to a document production order, which I note would be a contempt, may be addressed by the House adopting its own order for the production of documents.
Indeed, the 2021 case involving the so-called Winnipeg lab documents saw the House, after its first production order was refused, order the president of the Public Health Agency of Canada attend the bar of the House for, among other things, the purpose of turning over the documents that had not been provided.
This was, in turn, modelled on precedent cases, which Bosc and Gagnon describe at pages 131 and 132. In fact, the Order Paper is currently seized with a privilege motion concerning a similar remedy proposed in relation to Stephen Anderson, who did not turn over documents required by the Standing Committee on Access to Information, Privacy and Ethics concerning the infamous so-called other Randy.
Moreover, I would submit that the Speaker's September 26, 2024, ruling on the Sustainable Development Technology Canada documents, at page 25959 of the Debates, speaks to the usual admissibility of such a motion when the defied order is of an ordinary character, like that which, I would submit, the special joint committee adopted.
The Speaker said:
The members who intervened on this question used words such as “unusual”, “novel” and “unprecedented” to describe this particular production order. The Chair agrees with those characterizations. It is indeed unusual, novel and unprecedented for the House to order documents not for its own purposes but for a third party.... Before insisting on the production of documents, as the opposition House leader proposes to do, the Chair believes the House would benefit from having this matter studied further.
Unlike the SDTC documents order, there is nothing unusual about the order that the declaration of emergency committee had adopted yet failed to see realized. Therefore, I would respectfully submit that a motion to insist on the production of the documents is entirely admissible, should you agree there is a prima facie contempt.
In conclusion, the NDP-Liberal government gave itself sweeping authority to legislate in this place of Parliament and the provinces, and refused to come clean about the legal authority for doing so. Without straying too far into debate, the Rouleau commission heard testimony from the former CSIS director David Vigneault that the events of February 2022 did not meet the threshold that CSIS must apply for threats to the security of Canada, the same threshold Parliament said must be met before any public order emergency can be declared by the cabinet.
However, Mr. Vigneault testified before the commission that there was some special, magical, “separate interpretation” of the threshold that he professionally applied, day in and day out, to justify the decision the Prime Minister and his ministers were hell-bent on making. The fact that the Federal Court of Canada has since ruled that the government's actions in February 2022 were both illegal and unconstitutional only makes it even more imperative that there be full accountability and transparency for the Liberal Prime Minister's unilateral invocation of the sweeping legal powers the Emergencies Act conferred upon him.
It is in this light, Madam Speaker, that I refer you to page 141 of Derek Lee's The Power of Parliamentary Houses to send for Persons, Papers and Records, concerning times when the House may need to compel the production of the Crown's law officers' work product. Lee writes, “[Then U.K. home secretary] Sir Robert Peel also acknowledged the power of the House in requiring the opinion of the law officers: ‘They stand in the situation of all other responsible servants of the Crown; and there can be no doubt that they are liable to have their opinion called for, and their official acts revised, where sufficient grounds exist [in the opinion of the House] for such a proceeding.’
“An example of where the House might wish to require production, Sir Robert Peel said: ‘If there were a suspicion that they [law officers of the Crown] had acted under undue influence, an imputation against them of straining a point in favour of the Crown, the law-officers would be justly liable to have their opinions called for, and their official acts investigated.’
“Similarly, Sir Robert Peel said: ‘I will suppose a case where the law-officers gave a wrong opinion, or where there was an opinion given against which the Government acted; in either of those cases, I admit, the House would be justified in calling for the production of the opinion.’”
That is why the special joint committee worked so vigorously to obtain a copy of the infamous legal opinion and is also probably why the government has so steadfastly refused to shed any light on this matter. That is why I urge the Speaker to find a prima facie case of privilege in the circumstances and to permit the House to vote on ordering the production of the government's legal opinion.
Larry Brock MP Conservative Party
Alleged Withholding of Documents from the Special Joint Committee on the Declaration of Emergency
Privilege Routine Proceedings
December 12th, 2024 / 3:55 p.m.
The reason that I am particularly interested in that legal opinion is that I had been in communication with both the Prime Minister’s Office and the Minister of Justice David Lametti regarding a failure in the legal system to provide fair and impartial trials, a failure in the rule of law and fundamental justice. On February 14, 2022 I was waiting for a BC Supreme Court Judge to render her decision on a Writ of Mandamus, an order from the Court for a Minister to do his duty - to protect the Public and ensure that the Administration of Government is in compliance with the law. But the Judge didnt show up and the Minister of Justice enforced the Emergencies Act upon Canadians, allowing the Executive to bypass Parliament and enforce its will directly without oversight.
The Federal Court determined that the conduct was illegal, unconstitutional and without justification. The Federal Court of Appeal and the Parliamentary Committee on the Declaration of the Emergency received my brief in support of my participation as an Intervener as my evidence discloses David Lametti making false and misleading statements as to his duties in order to avoid doing them, improperly protecting judges abusing Canadians. A Breach of the Public Trust by the highest law officer in Canada.
Some of my most relevant substacks on this issue.
Complaint to the Quebec Law Society regarding the conduct of David Lametti
My letter to all Parliamentarians September 2024 in support of a non-confidence motion
My application at the Federal Court of Appeal in support of Intervener Status
My communications with the PMO and MOJ
My communications with the Public Order Emergency Commission (POEC)