Globe editorial: Ottawa says it has a legal opinion justifying the use of the Emergencies Act. So make it public

Did the federal government satisfy the stringent thresholds of the Emergencies Act when it used the law to crack down on protestors occupying Ottawa’s parliamentary precinct last February?

That question is at the heart of the mandate of the Public Order Emergency Commission, which wrapped up its public hearings last week. But it remains unanswered and perhaps unanswerable, chiefly because Prime Minister Justin Trudeau refuses to release the legal opinion that underpins the government’s contention that it did not violate the safeguards built into the Emergencies Act.

The act requires that a double test be met if it is to be invoked to quell a public-order emergency. First, the government must have reasonable grounds to believe that a public-order emergency exists, based on the definition of threats to the security of Canada contained in the Canadian Security Intelligence Service Act. Second, that emergency must be a situation that “cannot be effectively dealt with under any other law of Canada.”

Ottawa’s undisclosed legal opinion speaks to that first test. David Vigneault, the head of the Canadian Security Intelligence Service, testified that the events of last February did not meet his agency’s threshold for a national security threat. But Mr. Vigneault also testified that he advised Justin Trudeau to invoke emergency measures, after receiving a legal interpretation from the Justice Department that the Emergencies Act uses a broader definition of threat than the CSIS act.

That position seems inherently contradictory, given that the Emergencies Act explicitly references the definition contained in the CSIS statute. Yet the government claims that it has legal advice that resolves that contradiction.

Mr. Trudeau and his cabinet apparently expect that Canadians will take them at their word that there is a sound legal basis for their invocation of the Emergencies Act. Not only that, the government has declined to share the legal opinion even with the commission.

The time is long past for giving the government the benefit of the doubt. So far, the Liberals have not demonstrated that the occupation of Ottawa by the self-styled Freedom Convoy rose to the level of a national security threat, particularly since blockades at the border had been dispersed by the time emergency measures came into force.

The occupation was disruptive and unpleasant for Ottawa residents. There were clear failures by police and politicians. But none of that justifies the extreme step of invoking the Emergencies Act. If the government is able to make the case that a broader range of factors together constitute a national security emergency, it must do so – and share its legal opinion with the commission and the public.

Some Canadians might ask why that matters. The Emergencies Act, after all, proved to be an effective tool in clearing out the protestors. Opinion polls show that a clear majority support the federal government’s actions.

Those points are misguided. There is no doubt that the Emergencies Act is a powerful tool. That is precisely why the threshold for using it is so high; dangerous tools should be carefully locked away.

As for popular opinion, it’s worth pointing out that the invocation of the War Measures Act by prime minister Pierre Trudeau in the October Crisis of 1970 was even more popular, initially. Over time, however, Canadians came to understand that the use of the War Measures Act was a dangerous overreaction. Eventually, that understanding was codified in the Emergencies Act, which placed sharp limits on when and how Ottawa could take such extraordinary steps.

More fundamentally, the federal government needs to demonstrate to Canadians the legitimacy of its action. Lawlessness cannot be combatted with more lawlessness.

The government contends that relinquishing solicitor-client privilege would set a dangerous precedent. That position seems flimsy, if the government takes the step voluntarily. Making public the legal opinion might indeed create an expectation of future transparency; that is hardly a bad thing.

The truly dangerous precedent would be to allow this government to assert that it has a basis for invoking the Emergencies Act, while using solicitor-client privilege to shield it from scrutiny. If the Liberals succeed in that attempt, it clears a path for future administrations to invoke emergency measures for reasons – secret reasons – of their choosing.