Mulcair on Lametti’s performance at the Emergencies Act inquiry

There was only one false note in the Liberals’ otherwise solid performance in the Emergencies Act inquiry and it was trumpeted by the justice minister and prosecutor General of Canada, David Lametti.

Lametti served up his favorite « I have a secret » defense that he uses whenever he can’t or won’t 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 defend his government.

When Jody Wilson-Raybould received the final blow from her role as justice minister, Lametti finally made it to Cabinet, after languishing in the backseats for several years. He’s not about to waste 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. Her administrative experience and legal knowledge made her an ideal candidate to become Minister of Justice and Attorney General, a precedent for an Aboriginal Canadian.

Wilson-Raybould was that all-too-rare member of the executive who refused to get along. When Trudeau and his cronies began to poke their noses into the corporate fraud suit, SNC Lavalin, she pushed back.

She proved her courage when she stood on a matter of principle and refused to give the kind of non-prosecution agreement that was now permitted by legislation introduced by Trudeau. She and her Director of Public Prosecutions firmly agreed that SNC Lavalin simply did not qualify under this new law.

Trudeau, still “entitled to his rights,” was not about to take “no” for an answer, especially, it seemed, from a woman. Wilson-Raybould transferred to Veterans Affairs and soon left Trudeau’s cabinet, along with another strong and principled minister, Jane Philpott.

Trudeau has never regained majority government status since.

Lametti is not without expertise. He was a professor at McGill’s Faculty of Law before entering politics. He has an excellent academic background. He was even co-captain of the Oxford hockey team with Mark Carney!

He was also resolutely obsequious in carrying out his duties. He saw what happened to Wilson-Raybould and whatever his other qualities, he hasn’t exactly been one to stand his ground when the interests of his government are at stake.

I first witnessed this when François Legault decided he could unilaterally amend Canada’s founding document, the British North America Act. Lametti openly and incongruously defended Legault’s position that he could amend the Constitution on his own, even when it restricted official language rights.

As incredible as it may seem, the Attorney General of Canada was saying that the Government of Quebec could modify the AANB to, among other things, remove the equality of French and English before the courts of Quebec, as it had just do with law 96.

A colleague of mine interviewed Lametti soon after. Lametti was adamant. Legault had the power to change the AANB and (wait for it) he had a legal opinion to prove it.

« DAVE’S SECRET SUPERPOWER »

My colleague asked if his listeners in the anglophone community in Montreal could see this legal opinion. That’s when Lametti pulled out the now familiar « secret » defense. It is inconceivable that any lawyer worth his salt would ever say that a province could unilaterally change the constitution in a way that would have a negative impact on language rights. Having prepared several key Charter cases when I was director of legal affairs for the language rights group Alliance Quebec, I believe it is not even plausible that such an opinion exists. This would be the first time I encountered Secret Dave’s super power to block and defend… for the benefit of his government.

Think about it. Legault says, for example, that an English birth certificate from another Canadian province cannot be entered into a legal proceeding in Quebec without an expensive translation. Instead of fighting against this abrogation of rights, the Attorney General of Canada says that it is rubbish.

The equality of French and English before the courts of Quebec is engraved in stone and has been confirmed many times by the Supreme Court. Lametti claims to have a secret legal opinion that says otherwise but he won’t show it!

This came as a big surprise to top constitutional experts. You see, the 1982 constitution, which introduced the Bill of Rights, also has lattice amendment 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 language rights, which the Supreme Court does not consider to be part of the provincial constitution.

This requirement for a federal agreement had to be met when the Quebec government wanted to move from denominational school boards (Catholic and Protestant) to linguistic school boards (French and English). Quebec, although it did not sign the 1982 constitution, respected these rules and Premier Lucien Bouchard managed to get the motions passed in the House of Commons and the Senate.

As an opposition member of the National Assembly at the time, I had the honor of delivering our speech accepting the change and setting out the agreed terms. It has been crucial for the English-speaking minority in Quebec to continue to follow the issue closely. Even the Parti Québécois governments, on the whole, respected the agreement.

Legault, for his part, tried with another law, Bill 40, to take away the right of the English-speaking minority to control and manage its school boards.

Trudeau is afraid of Legault and Lametti sends the message loud and clear: do not move the boat with Quebec. The Anglophone minority loses its rights? Shame. We are not fighting with Legault. We have a secret legal opinion that says everything is fine.

So perhaps it shouldn’t have been surprising that in last week’s hearings before the Rouleau Commission, Lametti again chose to protect what the commissioner had access to as evidence. Rouleau’s role, under the law, was to determine the legitimacy of Trudeau’s invocation of the law. Lametti’s job was to facilitate this work. Instead, Lametti pleaded that he gave the firm a legal opinion that favored the government’s position, but he couldn’t share it because…it was secret!

Lametti seems to have forgotten that his first 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.

This resulted in one of the rare occasions during the six-week inquest when the usually unfazed Judge Rouleau clearly lost his patience.

Solicitor-client privilege is indeed an important principle. But under investigative laws in other jurisdictions, it is sometimes clearly stated that solicitor-client privilege cannot be invoked as a shield to prevent the commission from obtaining all the evidence it needs. Otherwise, why hold the investigation? The legality of the government’s action was central to what Rouleau had to decide, and Lametti was singularly unnecessary.

In the long list of things Judge Rouleau will include in his report, the smart money will bet he’ll be looking to put an end to any future Secret Dave’s shenanigans.

If you want Canadians to agree that restricting the freedoms of some was the only way to protect everyone’s rights under the law, you better lead by example. This starts with ensuring an open and transparent investigation process into the matter. Not making it a priority comes at the cost of leaving Canadians feeling that our Minister of Justice 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