TORONTO: On August 26, Justice Mosley of the Federal Court issued a decision on the Canadian Constitution Foundation’s motion to access complete and unredacted documents before cabinet when it invoked the Emergencies Act. The CCF argued that the federal government claim of cabinet confidentiality over these documents was an attempt to immunize the government’s decision to invoke the Emergencies Act from judicial review. The CCF sought access to these documents on a counsel-only basis and subject to a confidentiality undertaking.
Justice Mosley dismissed the motion, but held that the Court will determine if the government’s assertion of additional heads of privilege – solicitor-client privilege, public interest privilege, and national security privilege – are valid. The Court has given the government 14 days to respond. The Court also confirmed that the documents the government has produced so far would not have become public without the motion brought by the CCF.
“While this was not the result we wanted, the Court affirmed the Canadian Constitution Foundation’s position that the government must prove its case. The federal government’s position has been ‘just trust us’ when it comes to the Emergencies Act. Justice Mosley has made it clear that this isn’t good enough,” said CCF Litigation Director, Christine Van Geyn.
“While Justice Mosley held on this motion that he has enough evidence to perform his legal duty to decide the CCF’s legal challenge to the public order emergency, this does not mean that the evidence proves that the public order emergency was lawful or constitutional,” continued Van Geyn. “This decision is just the first of many steps on the way to a decision on the merits of the Canadian Constitution Foundation’s challenge.”
Justice Mosley held that the record in this case needed to include the minutes of the Cabinet and Incident Response Group, and that the government (at para. 101) “avoided a declaration to the effect that it had produced an incomplete record by belatedly delivering the IRG and Cabinet minutes and agendas.”
“We are pleased that the Court acknowledged that the evidence we do have now would never have been disclosed without the Canadian Constitution Foundation motion,” continued Van Geyn.
This evidence was reported on the front page of the Globe and Mail and the Toronto Star, and received significant national media attention.
Members of the public who are interested in supporting the case can make a tax deductible charitable donation at theccf.ca/donate
