There was only one really false note during the Liberalsā otherwise solid performance during the Emergencies Act inquiry and it was played on Minister of Justice and Attorney General of Canadaās David Lamettiās trumpet.
Lametti served up his favourite āIāve got a secretā defence that he uses whenever he canāt or wonāt answer a question that could prove embarrassing to Prime Minister Justin Trudeau. So much so, that it becomes fair to ask whether his priority is to uphold the law or to defend his government.
When Jody Wilson-Raybould was given the heave-ho from her role as justice minister, Lametti finally made it to cabinet, after languishing on the backbenches for several years. Heās not about to blow his big chance.
Wilson-Raybould was a star when she was recruited as a candidate by Trudeau. A woman of character, she had solid experience in managing the affairs of her First Nations community and had worked for years as a prosecutor. Administrative experience and legal savvy made her an ideal candidate to become minister of justice and Attorney General, a precedent for an Indigenous Canadian.
Wilson-Raybould was that all-too-rare member of the executive who refused to go along to get along. When Trudeau and his cronies started sticking their noses into the prosecution of corporate scofflaw, SNC Lavalin, she pushed back.
She proved her mettle when she stood on a question of principle and refused to give the sort of non-prosecution sweetheart deal that was now allowed under legislation brought in by Trudeau. She and her director of public prosecutions strongly agreed that SNC Lavalin simply did not qualify under that new statute.
Trudeau, ever āentitled to his entitlementsā wasnāt about to take ānoā for an answer especially, it seemed, from a woman. Wilson-Raybould was shunted over to Veterans Affairs and soon quit Trudeauās cabinet, along with another strong and principled minister, Jane Philpott.
Trudeau has never recovered majority government status since.
Lametti is not devoid of expertise. He was a professor at McGillās Faculty of Law before going into politics. He has a great academic background. He even co-captained the Oxford hockey team with Mark Carney!
He has also been resolutely obsequious in attending to his duties. He saw what happened to Wilson-Raybould and whatever other qualities he has, he hasnāt exactly been the type to stand his ground when the interests of his government are in play.
I witnessed it for the first time when Francois Legault decided he could unilaterally amend Canadaās foundational document, the British North America Act. Lametti openly and incongruously defended Legaultās position that he could amend the constitution on his own, even when it abridged official language rights.
As incredible as it might seem, Canadaās Attorney General was saying that the Quebec government could change the BNA Act to, amongst other things, remove the equality of English and French before the courts in Quebec, as it had just done with Bill 96.
One of my colleagues interviewed Lametti soon after. Lametti was adamant. Legault had the power to amend the BNA Act and (wait for it) he had a legal opinion to prove it.
'SECRET DAVEāS SUPER POWER'
My colleague asked if his listeners in the English-speaking community of Montreal could see that legal opinion. Thatās when Lametti whipped out the now-familiar āsecretā defence. There is no conceivable way any lawyer worth their salt has ever said that a province could unilaterally amend the constitution in a way that negatively affects linguistic rights. Having prepared several key Charter cases when I was director of legal affairs for language rights group Alliance Quebec, I believe thatās itās not even plausible that such an opinion exists. This would be the first time I encountered Secret Daveās super power to block and defendā¦in his governmentās interest.
Think about that. Legault is saying, for example, that an English-language birth certificate from another Canadian province cannot be introduced in a court proceeding in Quebec without a costly translation. Instead of fighting that abrogation of rights, the Attorney General of Canada is saying itās hunky dory.
Equality of English and French before Québecās courts is written in stone and has been confirmed time and again by the Supreme Court. Lametti claims to have a secret legal opinion that says the opposite but he wonāt show it!
That came as a big surprise to senior constitutional experts. You see, the 1982 constitution, that brought in the Charter of Rights, also has latticed amending provisions, the more fundamental the change, the more demanding the requirements. While a province can indeed change its own constitution unilaterally, it requires a motion from both Houses of Parliament to change linguistic rights, which the Supreme Court does not consider to be a part of the provincial constitution.
That requirement, for federal agreement, had to be met when the Quebec gouvernement wanted to go from religion-based school boards (Catholic and Protestant) to language based (French and English) boards. Quebec, despite not having signed the 1982 constitution, played by those rules and Premier Lucien Bouchard was able to get the motions adopted in the House of Commons and Senate.
As an opposition member of the National Assembly at the time, I had the honour of delivering our speech accepting the change and setting out the agreed conditions. It has been crucial for the English-speaking minority of Quebec to continue to follow the issue closely. Even Parti Québécois governments, by and large, respected the deal.
Legault, on the other hand, has tried with another law, Bill 40, to remove the right of the English minority to control and manage its school boards.
Trudeau is afraid of Legault and Lametti gets the message loud and clear: donāt rock the boat with Quebec. The English-speaking minority loses its rights? Too bad. We donāt fight with Legault. We have a secret legal opinion that says itās all good.
Perhaps, then, it shouldnāt have come as a surprise that during last weekās hearings before the Rouleau Commission, Lametti again chose to shield what the commissioner had access to in the way of evidence. Rouleauās role, under the law, was to determine the legitimacy of the invocation of the Act by Trudeau. Lamettiās job was to facilitate that work. Instead, Lametti pleaded that heād given cabinet a legal opinion that favoured the governmentās position but he couldnāt share it becauseā¦it was secret!
Lametti appeared to have forgotten that his number one obligation as justice minister and Attorney General was to protect and defend the constitution and the rule of law, not his cabinet colleagues and his boss.
That gave rise to one of the few occasions during the six-week inquiry, when the generally unflappable Judge Rouleau clearly lost patience.
Solicitor-client privilege is indeed an important principle. But under the statutes governing Inquiries in other jurisdictions, it is at times clearly spelled out that professional secrecy cannot be invoked as a shield to stop the commission from getting all of the evidence that it needs. Otherwise, why hold the inquiry at all? The legality of the governmentās action was the crux of what Rouleau had to decide and Lametti was being singularly unhelpful.
In the long list of things Justice Rouleau will include in his report, the smart money will be betting that heāll seek to put an end to the shenanigans of any future Secret Dave.
If you want Canadians to agree that restricting the freedoms of some was the only way to protect everyoneās rights under the law, you'd better preach by way of example. That begins with ensuring an open and transparent process of inquiry into the matter. Failure to make that a priority comes at the great cost of leaving Canadians with the sense that our justice minister is there to defend his government, not the law.
Tom Mulcair was the leader of the federal New Democratic Party of Canada between 2012 and 2017
