Ottawa cites cabinet confidentiality over decision to invoke Emergencies Act, court filing shows

The federal government says it will not reveal what information led it to use the Emergencies Act to end truckers’ protests this winter, citing cabinet confidentiality in its response to legal challenges.

Four groups accuse the government of acting unlawfully by invoking a state of emergency when, they say, existing legislation such as the Criminal Code and traffic laws were sufficient to address it. Alberta is seeking to join the case as an intervenor, opposing the use of the emergency law.

The cabinet-secrecy claim brought a sharp response from one of the four. In a court challenge to the secrecy filed late on Friday, the Canadian Constitution Foundation (CCF) said Ottawa’s attitude is summed up by the phrase attributed to King Louis XIV of France in the 17th century: “L’état, c’est moi.” (I am the state.)

The Canada Evidence Act is unequivocal about assertions of cabinet confidentiality; it says a court shall refuse to examine or hear the evidence that the government certifies is covered by such a confidentiality claim. But the CCF, a non-partisan advocacy group based in Calgary, is asking the Federal Court to order cabinet to reveal the information to the judge and the counsel involved.

It says the information being shielded includes Public Safety Minister Marco Mendicino’s submissions on the factual and legal basis for emergency measures, plus options considered and rejected, and a record of cabinet’s decisions, possibly including a vote. The CCF’s theory is that cabinet had persistent doubts.