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'Bad humour' and early Emergencies Act chatter: What Justice Minister Lametti's commission testimony reveals

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Justice Minister and Attorney General of Canada David Lametti took the stand at the Public Order Emergency Commission on Wednesday, where he was questioned about his role in the federal government's invocation of the Emergencies Act.

During his hours-long appearance, Lametti invoked solicitor-client privilege on many occasions, given in his capacity as AG he provided cabinet with legal advice and opinions about enacting the unprecedented powers that came with declaring a national public order emergency.

Lametti also was put on the spot over some of his text message conversations, which ranged from enlightening about how early he was thinking about the Emergencies Act to what he admitted was some "bad humour" around how the protests were being handled.

"Too bad this wasn’t a few decades ago because you'd already be hanging from a light pole downtown Ottawa for your treasonous crimes against Canadians," reads one direct message sent from someone with the online name "Justin Castro."

Asked by the federal lawyer whether he had experienced anything like the degree of such threats over the course of his political career, here's what Lametti said:

"Not to that degree. I have had threats. I have had threats online. My family has had threats from time to time and have reported them from time to time. Often I think from an anecdotal perspective, they're often a product of mental illness and that's a problem we need to fight. But, really was a marked increase in the virulence and the threats… The threats to kill me I think—and the manner in which people would like to kill me—have… accelerated immensely." 

Here's a summary of the highlights from the justice minister's testimony.

LAMETTI BRINGS UP EMERGENCIES ACT ON JAN. 30

One of the key things the commission learned on Wednesday was that Lametti was very early on in the protests putting the question out as to whether the Emergencies Act should be considered.

A text message exchange with his chief of staff, Alex Steinhouse, shows that Lametti asked on Sunday, Jan. 30 if there was "contingency for these trucks to be removed tomorrow or Tuesday? (If they were Black or Indigenous…)"

He goes on to ask: "What normative authority do we have or is some order needed? EA?" and tells his top staffer that he's "here if you want to chat."

Asked about the bit in brackets, Lametti told the commission the conversation was not meant to be public. That said:

"Look, there is evidence of systemic racism in our justice system. It's in my mandate letter. I do my best to try to root it out with various policies. And certainly there was a legitimate criticism being levelled at police authorities with respect to that weekend. That, if they had been a Black Lives Matter protest or an Indigenous protest, that perhaps the police reaction might have been different."

As for the Emergencies Act reference, Lametti testified that he was "being prudent" as he had gone through previous conversations with cabinet when they explored invoking the Act during the COVID-19 pandemic.

"And so, I knew that we had to begin thinking about it, whether or not it was ever going to be an option… to get the department to begin thinking about [the Act] in case we need it. Because the worst scenario would be something explodes and we are not ready to use it because we haven't done the kinds of consultations necessary or ask the appropriate questions to the appropriate people in order to get it done."

A Feb. 4 message from the same staff member then shows Lametti was informed that he was being invited to a meeting about the convoy and that it was believed "the angle is incoming the Emergencies Act."

Lametti told the commission this was in reference to the "preparatory work" being done for the possibility of the Act to be enacted.

A later text in this chain dated Feb. 13 shows Lametti saying, "I think we are on an inexorable march to the EA."

This was the same day that a major cabinet meeting happened, as the commission has already heard. The next morning provinces were consulted on the potential invocation of the Act and by the end of the day Trudeau announced the unprecedented powers were being enacted.

During cross-examination another notable text exchange from that day came to light.

It was between Lametti and Liberal Hull-Aylmer, Que. MP Greg Fergus. It showed that on Feb. 13 Fergus was frustrated after a caucus call that up until that point "integrated command" was the best the federal government could offer.

In response, Lametti said: "Our only other legal option is the Emergencies Act." Fergus then said: "That is exactly where people are at. It is where I am at."

"And me," Lametti replied.

Asked to speak to this on Wednesday, Lametti plainly stated he thought the Emergencies Act should be invoked.

"I was now at the point by Feb. 13 where I thought the Emergencies Act should be invoked. I prepared my colleagues from the beginning for the possibility that this would happen—as a good attorney general would do, as a good minister of justice would do—from my experience from the pandemic where I also prepared my colleagues and we didn't use it. By the time we got to the this last this third weekend I had come to that conclusion that's evident here, but as you can see, no decision had been taken," he said.

Then, 10 days later when the Act was revoked, Fergus texted Lametti again: "I am glad we ended the EA, but it would have been more appropriate if we waited until Friday? 44 hours after the vote seems unseemly."

Lametti replied: "No, we needed to stay ahead of the NDP and senators were saying that they would vote against based on their view that there was no longer an emergency."

Asked to speak to these post-revocation comments, Lametti told the commission: "We had said from the beginning, sir, that we would not keep the Act a minute longer than we needed to. It's something we said to the NDP and it's something that we said to senators, and I'm being completely consistent here to say that we needed to be ahead of that in terms of keeping our promise in order to not keep the act in place a minute longer than necessary." 

TEXTS Â鶹´«Ã½ SLOLY, JOKES Â鶹´«Ã½ TANKS

Lametti's morning testimony also brought to light a series of text messages he exchanged with his cabinet colleague Public Safety Minister Marco Mendicino that the justice minister described as "occasional attempts at bad humour."

For example, a Feb. 2 text thread with Mendicino shows Lametti saying—he says jokingly— that his ministerial counterpart needed "to get the police to move. And the CAF if necessary."

Mendicino replies: "How many tanks are you asking for… I just wanna ask Antia how many we've got on hand."

To this, Lametti says "I reckon one will do!!"

Asked to explain himself, Lametti told the commission in these exchanges he was acting as a colleague and "friend" and not in his capacity as the AG.

"So there will be banter," he said. "There will be occasional attempts at bad humour on both of our parts."

"I'm in no way saying we need to direct the police," Lametti said, later calling this exchange plainly "a joke."

Another example raised— less of an attempt at humour and more an indication of his frustration—shows Lametti once again texting Mendicino, saying on Feb. 4, "Sloly is incompetent."

This reference to then-Ottawa Police chief Peter Sloly was made after Mendicino texted Lametti "Police have all the legal authority they need to enforce the law… They just need to exercise it, and do their job."

To this, Lametti testified that as a part-time resident of Ottawa he felt unsafe, was "forced out of my living arrangements" because he felt where he was living was unsafe due to proximity to the protests.

"So I was frustrated. I had to admit this is a complete product of the heat of the moment. It is frank, I think I would soften it now with the benefit of hindsight," he said of his Sloly remark. "But it reflects, I think, the fact that my life had been altered by this. My staff was being harassed when they went into work by convoy members who took issue with them wearing masks, particularly my female staff members on my ministerial team, and I was I was quite frustrated, I will admit."

Another exchange that included Lametti texting about a need for Sloly to be "quick, quick, quick," which the justice minister testified on Wednesday was a reference to his favourite Christmas movie, "Love Actually." 

ADVICE TO CABINET, CSIS Â鶹´«Ã½ INTERPRETING ACTS

Even before Lametti began testifying, a lawyer for the federal government flagged that the minister would have limitations in what he can say given the government has not waived solicitor-client privilege when it comes to the advice he provided in his role as attorney general.

Over the course of his testimony, lawyer after lawyer tried to push at the edges of what kind of assessment he provided cabinet about the decision to invoke the Emergencies Act and largely they didn't get far.

"You agree that cabinet received a legal opinion about the Emergencies Act, is that fair?" asked Freedom Corp. lawyer Brendan Miller. "I will not confirm…" Lametti started before a federal government lawyer interjected to object on the grounds of solicitor-client privilege.

One of the more dedicated areas of this questioning dug into what the Department of Justice provided CSIS Director David Vigneault when he came seeking clarity on how the government's legal interpretation of the Emergencies Act definition of a "threat to the security of Canada" was more broad than the definition in the CSIS Act.

Even there, Lametti was tight-lipped, but confirmed what the commission has already heard about there being a "wider set" of national security threat considerations the cabinet was relying on than what is outlined under the CSIS Act. He described it as "only the starting point."

"I'm going to be careful with respect to solicitor-client privilege. I'm not going to link facts to arguments in a way that can impute the kind of legal advice I may or may not have given, or may or may not have been given to me in this process… But I think you have heard from a series of witnesses this week, including Mr. Vigneault… given the different purposes of the CSIS Act, given the different goals that CSIS has with respect to why it is using a 'Section 2' definition for one of its investigations… is different from the context in which it has been incorporated into the Emergencies Act. And the decision making body is different. It is not CSIS. It is the Governor in Council, so there is a wider—as you've heard from a number of different witnesses this week—there is a wider set of inputs," said Lametti at one point under cross-examination, one of his more fulsome attempts to answer questions on this topic. 

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