The government will likely just meet the threshold for declaring a public order emergency
Discerning the government’s legal position has not been easy. Obfuscating things, the government has relied on attorney-client privilege to refuse to divulge what legal advice Attorney General David Lametti gave his client — the federal cabinet — to guide their decision. This has set the government’s legal footing within a “black box,” as lawyers for the commission, civil liberties groups, and freedom convoy organizers have lamented.
They include espionage or sabotage, clandestine or deceptive foreign-influenced activity damaging to Canadian interests, and overthrow of the democratic government. The government has at least made crystal clear that it hangs its hat on the third subsection that rounds out this list of four, involving acts or threats of serious violence against persons or property for political, religious, or ideological objectives.
More helpfully, Vigneault and Lametti hinted that, given the different agencies’ roles and activities, the thresholds for the same types of cases might be lower for government. For example, where section 2 speaks of violence and damage to property for a political purpose, for CSIS this would normally refer to things like a bomb plot to destroy a building and which might bring imminent loss of life.
Trudeau cut through this fog on Friday. When pressed, he was unequivocal that the section 2 CSIS Act standards reflect the “same words” for both agencies. When asked how it could be, therefore, that two agencies working from the same words could come to different conclusions, Trudeau again referred to the fact that both agencies have different functions. The crowd seemed subdued on this point, as it appeared we were continuing down the familiar thresholds path from earlier this week.
Trudeau has therefore made clear that the government’s position is an “inputs” argument: CSIS and the government can disagree, and government has the final say, because the government’s functions are broader and thus it receives a wider range of information than CSIS.Article content
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