To understand Ottawa's use of the Emergencies Act, we need to know what cabinet knew

Attempts to follow the threads that led to the federal government's historic invocation of the Emergencies Act in February have come upon a knot — the question of who, if anyone, provided the advice that led the government to declare an emergency.

Unravelling that knot is vital to understanding how the Emergencies Act came to be used to disperse the self-styled "freedom convoy." But getting that understanding might require the authority of Justice Paul Rouleau and the Public Order Emergency Commission.

"When efforts using existing authorities proved ineffective," Public Safety Minister Marco Mendicino said last month during his appearance before the the special joint committee now studying the emergency declaration, "the advice we received was to invoke the Emergencies Act."

The minister referred to this advice more than once in his testimony. 

"We invoked the act because it was the advice of non-partisan professional law enforcement that existing authorities were ineffective at the time to restore public safety at all of the ports of entry you mentioned," Mendicino said in response to questions from Liberal MP Rachel Bendayan.

"There was a very strong consensus that we needed to invoke," the minister added later.

But the minister did not state who provided that advice to cabinet — and none of the committee members asked for names.

In an interview with CBC News late last week, Mendicino was more specific.

"I think it's important that we're really clear about how we took the decision and we took the decision by assessing very carefully the state of emergency that existed last winter," he said.

"And that assessment was informed by the conversations that we were having with law enforcement, including the Ottawa Police Service and the RCMP and other officials who, in their words, described these events as an 'unprecedented' act of civil disobedience … in the words of the Canadian Association of the Chiefs of Police."

The president of the CACP, Chief Bryan Larkin of the Waterloo Regional Police Service, described the events in February as "unprecedented demonstrations, protests, occupations and acts of civil disobedience" in a letter he wrote to Mendicino and Emergency Preparedness Minister Bill Blair on February 19 — five days after the emergency was declared.

The government's public account of the consultations that preceded the emergency declaration says that Blair and Mendicino met with Larkin on February 3 and 13.

Mendicino said that consultations with law enforcement in the lead-up to invoking the Emergencies Act "included conversations around precisely what powers we would be prescribing … to address the gaps and the challenges that existed as it relates to pre-existing authorities."

The government also was "consulting within our own community of public safety partners and the national security branch," he added.

RCMP and OPS say they didn't 'request' the act

The minister's references to "advice" have led to some consternation.

In her own appearance before the special committee, RCMP Commissioner Brenda Lucki was asked whether she had asked for the Emergencies Act to be invoked. "No, there was never a question of requesting the Emergencies Act," she replied.

Last week, while testifying before a different committee, interim Ottawa Police Service (OPS) chief Steve Bell was asked the same thing. "We didn't make a direct request for the Emergencies Act," he said.

Conservatives suggested last week that those responses contradicted Mendicino's account. Mendicino argued the question of whether law enforcement officials asked for an emergency declaration "operates from the inaccurate premise that it was for law enforcement to initiate the exercise."

"It was always the government's purview to invoke the act," Mendicino said.

If there is a material difference between asking for something and advising it, there remains the question of what exactly that advice entailed.

What police have said — and won't say

Lucki told the special committee that she couldn't "speak specifically to any advice that was done in cabinet" and the RCMP declined to comment on any advice when contacted on Friday.

The OPS also declined to provide further comment on Tuesday. But while testifying before the public safety committee in March, Bell thanked the federal government for invoking the act. He also said "the legislation provided the OPS with the ability to prevent people from participating in this unlawful protest" through powers to restrict movement, secure protected areas, target protest funding and require third parties to assist in removing trucks.

Larkin was not available for an interview but his letter of February 19 similarly expressed the CACP's support for invoking the act and said the legislation "supplements existing law enforcement tools and addresses unintended gaps in legislative authorities."

David Vigneault, director of the Canadian Security Intelligence Service, told the special committee that CSIS was among the departments and agencies whose advice informed the decision to invoke the act. He said "the intelligence and advice we provide to the government is classified in order to protect our sources and methods."

Getting to transparency

Beyond questions of national security, any advice to ministers could be withheld on the grounds that it is covered by cabinet confidentiality.

As Mel Cappe and Yan Campagnolo — a former clerk of the Privy Council and a former legal adviser in the Privy Council Office, respectively — explain in a new essay, the principle of cabinet confidence exists for good reasons.

But they also argue it "should not be utilized to impede the search for the truth where the validity of government action is seriously contested and the law demands that it be reviewed, as is the case with the recent declaration of emergency in response to the trucker convoy protests and blockades."

In other words, this is just not any cabinet decision.

The special committee of MPs and senators could try to demand the government disclose the substance of the advice it received. But the government might have a harder time saying no to Justice Rouleau, who will be conducting the inquiry that Prime Minister Justin Trudeau was required by the Emergencies Act to call.

"As an experienced trial judge and an appellate judge, [Justice Rouleau] knows very well both the constitutional principles that inform the confidences and national security confidences and why they are there, but equally understands the need for openness and transparency," Mendicino said last week. "And the government is steadfastly committed to ensuring that there is a robust and fully transparent review of the decision to invoke the Emergencies Act …

"As he begins to make his requests for information, we will cooperate fully with him, including, as I think we all contemplate, a request for information which may be otherwise protected by cabinet confidence."

It will be hard to describe any review as robust or fully transparent if it doesn't include an account of what cabinet was being told before the Emergencies Act was invoked. And without a detailed explanation of that advice, it might be impossible for Canadians to fully understand this historic decision.