Lawyers frustrated by Ottawa's disclosure of documents at Emergencies Act inquiry

OTTAWA — Several lawyers at the inquiry into the federal government's use of the Emergencies Act last winter say Ottawa has been too slow to disclose documents, which they say raises concerns about a lack of transparency.

Thousands of pages of documents have been submitted into evidence at the Public Order Emergency Commission, which is scrutinizing the decision to invoke emergency powers in response to protests against COVID-19 mandates that blockaded Ottawa streets and several border crossings.

Paul Champ, the lawyer representing Ottawa residents and businesses affected by the demonstrations, said Tuesday that documents from the federal government are coming too late in the process.

Champ said he and other lawyers did not receive roughly 200 pages of documents, many of which were "directly relevant" to Public Safety Minister Marco Mendicino's testimony on Tuesday, until after midnight the night before.

"Right from the first few days, even before it started, it was clear to us that there were going to be many enormous procedural fairness problems," said Champ, adding that at times, information relevant to witnesses who have already appeared is being disclosed after their testimony is over.

"We were getting extremely late disclosure of documents. We didn't even have most of the documents. We weren't getting witness statements, and we were going in kind of blind about what the theory of the case was, and what the evidence was going to be."

He said the process has been "enormously difficult," including for commission lawyers and Justice Paul Rouleau, the commissioner of the inquiry.

Hundreds more pages of documents are expected to be submitted as evidence this week, with other high-profile ministers and Prime Minister Justin Trudeau himself expected to testify at the public hearings.

On Tuesday, Rouleau cautioned that with three more federal ministers set to testify Wednesday, the short amount of time lawyers will have to examine documents will be "brutal."

Many of the documents already submitted include information rarely disclosed to the public, such as text messages between ministers and their staff, emails, internal police communications and intelligence reports.

Cara Zwibel, a director with the Canadian Civil Liberties Association and one of its lawyers at the inquiry, said there is a "great deal of transparency."

But she said the process has been "hampered" by a lack of additional disclosure and the tight timeline the inquiry has to conduct its work.

Champ added that the federal government's pace of disclosure has been "particularly troubling." Other parties to the inquiry, such as the City of Ottawa, had filed the bulk of their relevant documents for the commission prior to proceedings starting.

"They knew when they invoked the Emergencies Act that that they had to hold this public inquiry within an extremely short timeline," he said. "So I think they should have been working on it right then, and it's obvious that they have not."

Brendan Miller, a lawyer for "Freedom Convoy" organizers, was asked to leave the inquiry room after a testy exchange with Rouleau on Tuesday during Mendicino's testimony. He later apologized and was allowed to return.

The exchange included reference to an application Miller filed with the commission that requested unredacted versions of nine documents produced by the federal government.

Rouleau released a decision Tuesday afternoon that dismissed the bulk of Miller's requests, but found that the government's application of redactions for "parliamentary privilege" had been too broad in some cases.

He ordered the federal government to remove such redactions from three documents and resubmit them "in a reasonably timely manner."

This report by The Canadian Press was first published Nov. 22, 2022.

David Fraser and Stephanie Taylor, The Canadian Press