P. Mitch McAdam
P. Mitch McAdam spoke 184 times across 7 days of testimony.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, Commissioner. My name is Mitch McAdam and I’m one of the lawyers for the Government of Saskatchewan. The areas that we were going to cover -- question this witness about have already been covered by others, so we have no questions.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, Commissioner. It's Mitch McAdam from the Government of Saskatchewan. The matters that I was going to ask this witness about have already been covered by others, so I have no questions. Thank you.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, sirs. My name is Mitch McAdam and I'm one of the lawyers for the Government of Saskatchewan. I just have a few questions for you today. First, Mr. Stewart, in your interview summary at page 20, you indicated that you are aware of the Federal Emergencies Act back in 2020 at the outset of the COVID-19 pandemic, and you mentioned that again this morning. So I take it that you were involved in the discussions back in 2020 about potentially invoking the Emergencies Act to deal with the COVID- 19 pandemic. Isn't that true?
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P. Mitch McAdam, Counsel (SK)
And, sir, I'm going to ask you a few very general questions about that time. I have some documents that I can pull up if you need to see them, but in the interests of time, I'm not going to pull them up unless it's necessary. But if you do need to refresh your memory, by all means, ask me to pull them up. My questions are going to be quite general.
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P. Mitch McAdam, Counsel (SK)
To begin with, sir, you'd agree with me that in that case, there was a process of engagement with the provinces that spanned at least a couple of weeks?
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P. Mitch McAdam, Counsel (SK)
And you'll agree with me that there was a letter that was sent by the Prime Minister to the Premiers formally initiating consultations under the Emergencies Act?
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P. Mitch McAdam, Counsel (SK)
And you'll agree with me that that letter was followed up with a meeting between the Prime Minister and the Premiers to discuss the matter?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
Okay. But you're not aware of any telephone conference call involving the Prime Minister and the Premiers?
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P. Mitch McAdam, Counsel (SK)
Okay. And are you aware that the Premiers were given about a week to provide a formal written response to the idea of invoking the Emergencies Act to deal with the pandemic?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
And they were given some time to do so?
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P. Mitch McAdam, Counsel (SK)
Okay. So if I say they were given a week, you can't agree or disagree with that?
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P. Mitch McAdam, Counsel (SK)
Okay. But will you agree with me, sir, that the process that was used back in 2020, when there was discussion about invoking the Emergencies Act to deal with COVID-19 pandemic was quite different than the process that was followed in February of this year before invoking the Act to deal with the blockades and protests?
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you, sir. Next, sir, I'd like to ask you a few questions about the FPT meetings that were discussed this morning. And, Mr. Stewart, you talked about a meeting of Deputy Ministers that you attended on February 7th. Do you recall that meeting?
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P. Mitch McAdam, Counsel (SK)
Okay. And, Mr. Rochon, my understanding is that you attended a meeting of the FPT Crime Prevention and Policing Committee on February the 11th. Do you recall that?
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P. Mitch McAdam, Counsel (SK)
Yes. And, Mr. Stewart, would you agree with me that at the meeting on February 7th, at no time did you advise the provincial officials that were on that call that the federal government was contemplating invoking the Emergencies Act?
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P. Mitch McAdam, Counsel (SK)
And, Mr. Rochon, would you agree with me at the meeting on February 11th, at no time did you or anyone else from Public Safety Canada advise the provincial and territorial officials on the call that the federal government was considering invoking the Federal Emergencies Act?
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P. Mitch McAdam, Counsel (SK)
Okay. And, Mr. Stewart, would you agree with me that these opportunities, the Deputy Minister's meeting that you had and the meetings of the CPP Committee would have been a good opportunity to discuss the potential invocation of the Emergencies Act with provincial officials?
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P. Mitch McAdam, Counsel (SK)
Okay. So at the time of these two meetings, it wasn't under active discussion?
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P. Mitch McAdam, Counsel (SK)
So on February 7th it was not?
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P. Mitch McAdam, Counsel (SK)
Okay. And, Mr. Rochon, when you had the meeting on February 11th, was the Emergencies Act under active discussion at that time?
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P. Mitch McAdam, Counsel (SK)
So ---
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P. Mitch McAdam, Counsel (SK)
Mr. Stewart, you're aware of a meeting that Mr. Dakalbab from your department attended with officials from Alberta, Manitoba, Ontario and the RCMP on February 13th? That's a meeting that he reported to you by email on Sunday night; do you recall that?
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P. Mitch McAdam, Counsel (SK)
Okay. And at that time, the invocation of the Emergencies Act was under active consideration by the federal government; wasn't it?
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P. Mitch McAdam, Counsel (SK)
And your information is that Mr. Dakalbab or the other officials, federal officials on that call did not advise their provincial counterparts that the Act was under active consideration; did they?
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P. Mitch McAdam, Counsel (SK)
Okay. So you're saying the federal officials that were on the call would not have known that the Federal Emergencies Act was under active consideration at that time?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
So they couldn’t have advised their provincial officials of that?
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P. Mitch McAdam, Counsel (SK)
Okay. And as far as you know, they didn’t advise provincial officials of that, ---
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P. Mitch McAdam, Counsel (SK)
--- as far as -- thank you.
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you, Commissioner. Those are all my questions.
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P. Mitch McAdam, Counsel (SK)
Good afternoon. My name is Mitch McAdam, and I’m one of the lawyers acting for the Government of Saskatchewan. Can you hear me?
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P. Mitch McAdam, Counsel (SK)
I’m sorry, Commissioner. I am clicking on the link, but -- ah, there, it seems to have come on.
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
I think I had a sticky mouse.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, sirs. I am Mitch McAdam, one of the lawyers for the Government of Saskatchewan, and I have a couple of questions that I’d like to ask you, Mr. Keenan, about some of the FPT meetings that were being held in February concerning the protests and the blockades. To start with, you indicated this morning that your department was regularly in contact with its provincial and territorial partners during this time, and that that was particularly with respect to preparing the strategic enforcement strategy that we’ve heard about today; that’s correct, isn’t it?
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P. Mitch McAdam, Counsel (SK)
And is it correct, sir, that this work began with the Policy and Planning Support Committee, which is an ADM-level FPT Committee? Is that right; it began with that committee or sort of became a spinoff of it?
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P. Mitch McAdam, Counsel (SK)
Okay. And those are meetings that you would ordinarily not attend, right?
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P. Mitch McAdam, Counsel (SK)
Okay. And they would be speaking for your department at that meeting; right?
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P. Mitch McAdam, Counsel (SK)
And they would generally report to you on what happened at those meetings?
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P. Mitch McAdam, Counsel (SK)
And I take it that one of the purposes of those meetings in early February was to gather information on the powers and the tools that the provinces had to respond to the protests and blockades that were happening in their jurisdictions; correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And I understand, sir, that there was a Deputy Minister level meeting on February 7th that you attended. Do you recall that meeting?
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P. Mitch McAdam, Counsel (SK)
And I believe that Deputy Minister Stewart from Public Safety Canada attended that meeting as well; correct?
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P. Mitch McAdam, Counsel (SK)
And I think you said this morning that you began to lay out the strategic enforcement strategy at that meeting; correct?
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P. Mitch McAdam, Counsel (SK)
And you'll agree with me that the Federal Emergencies Act was not discussed at that meeting; was it?
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P. Mitch McAdam, Counsel (SK)
And, sir, there was another FPT meeting on Friday, February 11th that was attended by Aaron McCrorie from Transport Canada. Are you aware of that meeting?
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P. Mitch McAdam, Counsel (SK)
Okay. And my understanding is that at that meeting, Mr. McCrorie laid out a more fulsome version of the strategic enforcement strategy; is that correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And at that time, the strategy was looking at a coordinated and consistent approach to enforcement based on existing municipal provincial and federal laws; correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And again, at that meeting, there was no discussion of potentially invoking the Federal Emergencies Act; was there?
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P. Mitch McAdam, Counsel (SK)
Mr. Keenan, my friend from Alberta mentioned a couple of minutes ago another meeting that was held on February 13th that was attended by Mr. Brousseau from your Ministry along with representatives from Ontario, Manitoba, Alberta and the RCMP. And you indicated that you are aware of that meeting; correct?
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P. Mitch McAdam, Counsel (SK)
And I believe that that meeting was described as one involving the provinces that were most affected by the protests; would you agree with that?
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P. Mitch McAdam, Counsel (SK)
Okay. And you would also agree with me that at that meeting, Assistant Deputy Minister Brousseau did not raise the possibility of the Federal Emergencies Act being invoked with those provinces; did he?
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P. Mitch McAdam, Counsel (SK)
Okay. Now, Mr. Keenan, would you agree with me that the provincial and territorial folks that people from your department were meeting with during this time all had expertise with respect to existing tools available to law enforcement?
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P. Mitch McAdam, Counsel (SK)
Yeah. And so would you agree with me that that would have been a good forum in which to raise issues about potential gaps in existing legal authorities to deal with the blockades and the protests?
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P. Mitch McAdam, Counsel (SK)
Okay. But the focus of those meetings was on existing tools. Nobody from ---
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P. Mitch McAdam, Counsel (SK)
--- your Ministry asked provincial officials at those meetings to identify gaps so that that information could feed into potentially invoking the Federal Emergencies Act. That wasn't the purpose of the meetings; was it?
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P. Mitch McAdam, Counsel (SK)
Okay. But you would agree with the people that were attending these meetings would have had some expertise and could have provided some valuable input into determining what those gaps were?
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P. Mitch McAdam, Counsel (SK)
Okay. And would you agree with me, Deputy Minister Keenan, that at those meetings, no provincial representatives were requesting the federal government invoke the Emergencies Act; were they?
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P. Mitch McAdam, Counsel (SK)
Okay. Sir, I'd like to turn to a slightly different matter now. Just want to make sure that I understand your testimony from earlier this afternoon. I believe that you indicated that your department started to work on the Emergencies Act about February the 10th. Is that correct?
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P. Mitch McAdam, Counsel (SK)
Yeah. And then I think you said that the work ramped up over the next couple of days and that by February 13th, I think you said that your department was well into the discussion of the Emergencies Act; is that correct?
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P. Mitch McAdam, Counsel (SK)
Okay. So but it would be accurate to say that by February the 10th, the Emergencies Act was on the table for your department and your department was doing some work on it?
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P. Mitch McAdam, Counsel (SK)
Okay. And, Deputy Minister Keenan, you would agree with me that no one from your department consulted with any of your PT partners about the invocation of the Emergencies Act before the first Minister's meeting that occurred on February 14th?
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P. Mitch McAdam, Counsel (SK)
Okay. And the first time that you would have talked to your PT partners about the Federal Emergencies Act was when you did the briefings to advise them of what the powers were and what the authorities were that were contained in the Act that happened after the Act was invoked; correct?
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you, sir. Those are all of my questions.
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P. Mitch McAdam, Counsel (SK)
Good morning.
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P. Mitch McAdam, Counsel (SK)
I’m Mitch McAdam, one of the lawyers for the Government of Saskatchewan, and I have a few questions for you this morning, Ms. Bodgen. During your testimony this morning, you mentioned a meeting that was called by the Clerk of the Privy Council on the morning of February the 9th, at which she directed Deputy Ministers and staff at the Privy Council Office to examine all possible options for resolution of the blockades and protests. Do you recall that?
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P. Mitch McAdam, Counsel (SK)
And then later this morning, you talked to Commission Counsel at some length about a document that emanated out of that meeting dealing with things like the enforcement plan and the engagement plan. And those things were all based on existing legal authorities; correct?
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P. Mitch McAdam, Counsel (SK)
And Ms. Bodgen, when the Incident Response Group began meeting on February the 10th, is it fair to say that that document and what was contained in it really became the genesis for what was referred to as Track 1?
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you. Now, Ms. Bodgen, when the Clerk of the Privy Council was discussing with Deputy Ministers and staff from your office on the morning of February 9th about all possible options to resolve the blockades and protests, one of those options would have been the invocation of the Emergencies Act or what came to be referred to as Track 2? Is that correct?
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P. Mitch McAdam, Counsel (SK)
Okay. So those things were discussed in that meeting on the morning of February the 9th?
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P. Mitch McAdam, Counsel (SK)
Okay. And then they were certainly on the table when the Incident Response Group met on February 10th? Isn’t that correct?
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P. Mitch McAdam, Counsel (SK)
And I won't call it up, but I believe that the minutes of the Incident Response Group meeting from February 10th also refer to a discussion of those Track 2 items. Isn't that correct?
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P. Mitch McAdam, Counsel (SK)
Okay, thank you. And Ms. Bogden, you said this morning something along the lines of "a good civil servant does their homework in advance." Did I have that correct?
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P. Mitch McAdam, Counsel (SK)
Okay. So do I take it that officials within the Privy Council Office would have been at least looking at the Emergencies Act as a potential option or scoping out the potential for using the Emergencies Act by that first week of February?
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P. Mitch McAdam, Counsel (SK)
Okay. So when we look at the minutes of the SSE Committee meeting on February 3rd, and it talked about "creative options", was that referring to the Emergencies Act or was that referring to something else?
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P. Mitch McAdam, Counsel (SK)
Okay. So when would the Privy Council Office have started to do its homework on the Emergencies Act? When would you or somebody in your office have first started to look at it as a potential option?
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P. Mitch McAdam, Counsel (SK)
Okay. So it would have been only a day before the first meeting of the Incident Response Group when it was being discussed there?
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P. Mitch McAdam, Counsel (SK)
And no work was ---
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P. Mitch McAdam, Counsel (SK)
No work was done on the Emergencies Act before that?
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P. Mitch McAdam, Counsel (SK)
Do you know if that work was being done within the Privy Council or was it in a -- within the Privy Council Office or was in a different department?
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you very much. Those are all of my questions.
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P. Mitch McAdam, Counsel (SK)
Good afternoon Commissioner I’m trying to get my camera operating. Thank you.
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P. Mitch McAdam, Counsel (SK)
Thank you.
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P. Mitch McAdam, Counsel (SK)
Good afternoon. I’m Mitch McAdam; I’m one of the lawyers for the Government of Saskatchewan, and I have a few questions this afternoon for you, Madam Charette. To start with, I understand that one of your responsibilities is that you are the Secretary to the Cabinet, right?
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P. Mitch McAdam, Counsel (SK)
And that one of your responsibilities as the Secretary is to control the flow of paper to Cabinet?
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P. Mitch McAdam, Counsel (SK)
I manage the flow of paper into the Cabinet, that’s right.
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P. Mitch McAdam, Counsel (SK)
Okay. So all of the paper that goes to Cabinet has to go through your office?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
Okay. So it has to go through the Privy Council Office?
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P. Mitch McAdam, Counsel (SK)
Yeah. And you’re also responsible, I believe you said this morning, for recording the decisions made by Cabinet?
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P. Mitch McAdam, Counsel (SK)
I have a few questions for you about the Cabinet meeting that happened on the evening of February 13th, where the Emergencies Act was considered. First, can you confirm for me that there were no papers or documents that were provided to Cabinet Ministers in connection with that meeting?
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P. Mitch McAdam, Counsel (SK)
Okay. There was paper provided to them?
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P. Mitch McAdam, Counsel (SK)
Yeah. So ---
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P. Mitch McAdam, Counsel (SK)
Yes, it does. So there was no memorandum to Cabinet, and that was an unusual situation.
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P. Mitch McAdam, Counsel (SK)
Not the usual course.
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P. Mitch McAdam, Counsel (SK)
Thank you.
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P. Mitch McAdam, Counsel (SK)
Okay. And I understand you attended that Cabinet meeting; correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And I’m not going to ask you about what was -- what the deliberations were at that meeting, but you said a moment ago that one of your responsibilities was to record the decisions made by Cabinet. And can tell me exactly what the decision was made at Cabinet that evening? I think you said earlier that the decision was to direct the Prime Minister to have a First Ministers meeting, or to have a First Ministers meeting the following day. But I just want to make clear in my mind that I understand exactly what was decided that evening.
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you. Next, I’d like to turn to the events on February the 14th.
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P. Mitch McAdam, Counsel (SK)
And you would agree with me that the invitation for the First Ministers meeting -- I think we talked about it a little bit earlier today, or you talked about it a little bit earlier today -- it went out on Sunday evening after the Cabinet meeting; correct?
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P. Mitch McAdam, Counsel (SK)
Yeah.
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P. Mitch McAdam, Counsel (SK)
Yeah. And I believe that you indicated earlier today that it was a meeting called on short notice, right?
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P. Mitch McAdam, Counsel (SK)
And my understanding, from your testimony earlier today, is that the invitation didn’t indicate what that meeting was all about, did it?
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P. Mitch McAdam, Counsel (SK)
Okay. And you also indicated that at that meeting a number of the Premiers voiced objections to invoking the Act?
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P. Mitch McAdam, Counsel (SK)
Okay. And I understand that that meeting lasted about an hour; is that correct?
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P. Mitch McAdam, Counsel (SK)
Okay. So it would’ve ended about ---
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P. Mitch McAdam, Counsel (SK)
M’hm.
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P. Mitch McAdam, Counsel (SK)
Clerk, can I ask you to call up document PB.NSC.CAN00008485, please? And Clerk, if you could scroll to the very end of that document? You’ll see Madam Charette, this is an email from Jody Thomson, [sic] on February 14th at 11:44 a.m., and she says: “I need an assessment for Janice about the threat of these blockades....” And when she’s referring to Janice, that’s you; correct?
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P. Mitch McAdam, Counsel (SK)
And yesterday when she testified, Ms. Thomas indicated that this was something that was needed for the invocation package, and that’s the memorandum that you prepared for the Prime Minister, right?
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P. Mitch McAdam, Counsel (SK)
Okay. And I just want to make sure I have my timeframe correct here. So the First Ministers meeting would’ve ended by 11:15, and then by 11:44 Ms. Thomas is writing asking for this threat assessment. So am I right that in that half an hour, the Prime Minister would have come to you and said, “Let’s proceed with the invocation package,” and then you contacted Ms. Thomas and asked about the threat assessment?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
Okay. So had the Prime Minister -- did he come to you after the First Ministers meeting, and before you completed your memorandum, and ask you to go ahead and prepare that memorandum?
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P. Mitch McAdam, Counsel (SK)
No. So you were doing this based on your understanding of what he wanted.
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P. Mitch McAdam, Counsel (SK)
Okay. And you knew that a press conference had been called for 4:30 that afternoon, didn’t you?
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P. Mitch McAdam, Counsel (SK)
Okay. And I think you indicated that you gave the document to the Prime Minister at 3:41 in the afternoon, and then I think you said this morning that he would sign that document to indicate his approval, but I don’t believe that you testified about when you would have got that document back from him.
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P. Mitch McAdam, Counsel (SK)
So between 3:41 and 4:30?
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P. Mitch McAdam, Counsel (SK)
Okay. And at the media availability it was announced that the Emergencies Act had been involved?
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P. Mitch McAdam, Counsel (SK)
Was being invoked.
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P. Mitch McAdam, Counsel (SK)
And so what does “was being invoked” mean? When exactly did it come into force?
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P. Mitch McAdam, Counsel (SK)
And so that wasn’t until ---
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P. Mitch McAdam, Counsel (SK)
--- the next day?
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P. Mitch McAdam, Counsel (SK)
Okay. And so did -- was there another Cabinet meeting on the 14th for Cabinet to consider this?
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P. Mitch McAdam, Counsel (SK)
So Cabinet was never advised of the outcome of the meeting with the First Ministers?
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P. Mitch McAdam, Counsel (SK)
Okay.
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P. Mitch McAdam, Counsel (SK)
Yeah, I'm confused because I think you said earlier today that under the Emergencies Act it’s the Governor-in-Council that invokes the Act.
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P. Mitch McAdam, Counsel (SK)
So if the Cabinet didn’t meet again, how did the Act get invoked? Was the power to do so delegated to the Prime Minister? Or just how did that happen?
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P. Mitch McAdam, Counsel (SK)
Okay. Commissioner, I have a couple of questions about the memorandum that was prepared for the Prime Minister that afternoon. So I wonder if I might have your indulgence to take a few extra minutes to ask those questions?
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P. Mitch McAdam, Counsel (SK)
Thank you. Clerk, could you please call up Document SSM.NSC.CAN00003224 and that’s the memorandum to Cabinet. And you’ll be glad to know I’m not going to go through in detail and talk about the test for declaring a public order emergency. But if the clerk ---
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P. Mitch McAdam, Counsel (SK)
No, no, not at all. But I’ll leave those arguments for another time.
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P. Mitch McAdam, Counsel (SK)
Thank you for the correction. Clerk, if you could go to page 8 of that document and part way through, just a little bit farther, that’s good. It says this a couple of times in the document. I’ll read hose words at the top. It says: “In addition, PCO is of the view that this is a national emergency situation that is urgent, critical, temporary, and seriously endangers the health and safety of Canadians, and cannot be effectively dealt with uniquely by the provinces or territories.” And I wondered what you meant by the word “uniquely” in that sentence. And I know that you had indicated earlier today that there was some concern that provinces were not fully using the powers and authorities that they had. And is that what you were getting at with that word “uniquely”?
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P. Mitch McAdam, Counsel (SK)
Okay. So I’m still a bit confused about the word “uniquely” and I just want to clarify. Were you suggesting that the provinces could effectively deal with the situation but there’s something unique about what was happening in February that justified invoking the Emergencies Act?
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P. Mitch McAdam, Counsel (SK)
Okay. And one final matter. Clerk, if I could get you to go back to page 4 of that document near the top. And on that page you indicate that the First Ministers meeting will meet the requirements for consultation with the provinces under the Emergencies Act. So I take it it wasn’t your position that it was necessary to get the consent of the provinces before invoking the Act, was it?
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P. Mitch McAdam, Counsel (SK)
And it wasn’t even necessary to get the support of the majority of the provinces, was it?
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P. Mitch McAdam, Counsel (SK)
And so really, in order to fulfill that consultation requirement in the Emergencies Act, all you needed to do was meet with the provinces. It didn’t really matter what their views are or what they had to say about the matter, did it?
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P. Mitch McAdam, Counsel (SK)
But you agree that there was a lot of opposition from -- I believe you said earlier or perhaps it was Ms. Drouin -- the prairie provinces, the Maritimes, there was a lot of concerns being raised, right?
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P. Mitch McAdam, Counsel (SK)
And the Government of Canada decided to go ahead anyway, correct?
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P. Mitch McAdam, Counsel (SK)
Thank you.
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P. Mitch McAdam, Counsel (SK)
That’s a perfect place to end, Commissioner. Thank you very much. Those are all my questions.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, sir.
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P. Mitch McAdam, Counsel (SK)
I’m Mitch McAdam, one of the lawyers for the Government of Saskatchewan. And I want to ask you a few questions about something that you said during your interview with Commission counsel. So I would ask the clerk to please pull up the interview summary. It’s WTS00000077. And if we could go to the top of page 5, please. Sir, in the second paragraph from the top of that page, you referred to the non-use of provincial legislation by provincial governments as being a factor that informed Cabinet’s decision to invoke the Emergencies Act. My question is, were you referring to Ontario’s delays in declaring a provincial emergency under their Emergency Management and Civil Protection Act?
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P. Mitch McAdam, Counsel (SK)
Okay. Sir, were you also referring to the fact that laws like Ottawa City by-laws or Ontario’s Highway Traffic laws were not being enforced in downtown Ottawa?
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P. Mitch McAdam, Counsel (SK)
Okay. So that possibly was a factor that was being taken into account?
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P. Mitch McAdam, Counsel (SK)
Okay. Thank you, sir. And we’ve heard a lot of evidence at this Commission about various reasons why laws aren’t enforced, such as the safety of police officers and the public, the lack of resources, the lack of plans. So you're aware that there could be very good reasons why provincial laws are not being enforced?
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P. Mitch McAdam, Counsel (SK)
Okay. And we’ve also heard this morning in your testimony about what’s been called the separation of church and state and the fact that governments, whether they’re municipal, provincial, or federal don’t interfere with the operational decisions of police. Do you recall that?
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P. Mitch McAdam, Counsel (SK)
Okay. I believe we’re having a fire alarm in our building but I'm just going to plow ahead and continue. I’m not sure if you can hear the beeping in the background. I’m curious, Minister, how does the federal government assess whether the non-use of provincial legislation warrants invoking the Emergencies Act. You're reviewing the operational decisions of police, aren’t you?
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P. Mitch McAdam, Counsel (SK)
Okay. But you will agree with me, sir, that it’s a very different thing to be identifying gaps in existing laws so that new tools can be provided, as opposed to reviewing how existing tools are being employed. Those are quite different things, aren’t they?
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P. Mitch McAdam, Counsel (SK)
Okay. And you'll also agree with me, sir, that to the extent it is a provincial decision as opposed to an operational decision by police, so with respect does something like a province’s decision to invoke its own Emergencies legislation -- that’s ordinarily a matter that falls within exclusive provincial jurisdiction, correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And sir, you also talked about looking at the existence of effective laws and looking for gaps in the laws. And I take it that could be gaps in wither federal laws of provincial laws, correct?
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P. Mitch McAdam, Counsel (SK)
Yeah. And you would agree with me again that in the ordinary course the decision about whether to enact laws to fill gaps in provincial laws is a matter that falls within the exclusive jurisdiction of the provinces; isn’t it?
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P. Mitch McAdam, Counsel (SK)
Okay. So just so that I'm clear then, it’s your position and the federal government’s position that when there is a national emergency, the federal government can review what provincial laws exist and how those laws are being applied and if it thinks it’s necessary, can step in and deal with those matters by orders and regulations under the Emergencies Act even though those matters would ordinarily fall under provincial jurisdiction, correct?
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P. Mitch McAdam, Counsel (SK)
Okay. And can you tell me what part of what I've said you disagree with?
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P. Mitch McAdam, Counsel (SK)
But you would agree with me that under section 19 of the Emergencies Act, the federal government can make orders and regulations that deal with matters that in ordinary times would come under the exclusive jurisdiction of the provinces, correct?
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P. Mitch McAdam, Counsel (SK)
Thank you, sir. Those are all of my questions.
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P. Mitch McAdam, Counsel (SK)
I’m hoping it’s a false alarm. Thank you.
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P. Mitch McAdam, Counsel (SK)
Yes, I know.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, sir. I’m Mitch McAdam, one of the lawyers for the Government of Saskatchewan, and I want to ask you a few questions about COVID- 19 and the Emergencies Act. I would ask the Clerk to please bring up POE.SAS.00000001. Sir, this is a letter that you sent to Premier Moe of Saskatchewan on April 8th, 2022 -- 2020, pardon me, about COVID-19 and the Emergencies Act. And I think you talked this morning a little bit about considering invoking the Emergencies Act to deal with the pandemic back in March and April of 2020, didn’t you?
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P. Mitch McAdam, Counsel (SK)
And I take it that similar letters would have been sent to all the Premiers?
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P. Mitch McAdam, Counsel (SK)
And if we can go to the top of page 2 of this letter, at the end of the first paragraph it refers to the fact that you are formally initiating a consultation process under the Emergencies Act; that’s correct, isn’t it?
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P. Mitch McAdam, Counsel (SK)
It was a formal process.
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P. Mitch McAdam, Counsel (SK)
And, Clerk, if we could go back to the first page, and the bottom of the letter? It indicates that you had already discussed the Emergencies Act with the Premiers during at least two telephone conferences, one on March 23rd and one on April 2nd; that’s correct, isn’t it?
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P. Mitch McAdam, Counsel (SK)
And also, in that same paragraph it refers to the fact that Ministers from at least four different departments have spoken to their provincial counterparts about whether measures under the Emergencies Act could assist in the collective efforts to deal with the pandemic; that’s correct too, isn’t it?
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P. Mitch McAdam, Counsel (SK)
And if we can go back to page 2, please? In the fourth paragraph on that page, it refers to you asking the Minister of Public Safety and the Deputy Prime Minister to also reach out to their provincial counterparts to discuss this. That’s correct as well?
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P. Mitch McAdam, Counsel (SK)
So I take it that back in 2020, there was an effort involving a number of different federal departments to reach out to their provincial counterparts to discuss the Emergencies Act in this context?
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P. Mitch McAdam, Counsel (SK)
And if we look at the end of that paragraph, I take it that there was a plan that you were going to convene another telephone conference with the Premiers to discuss this topic further; correct?
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P. Mitch McAdam, Counsel (SK)
Okay, thank you. Clerk, if I could next ask you to pull up another document; it’s SAS.00000002, please. I’ll just wait for a moment while the letter gets pulled up. Prime Minister, you’ll see that this is a letter from Scott Moe, sent as Chair of the Council of the Federation to you about COVID-19 and the Emergencies Act on April 14th. Do you recall this letter?
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P. Mitch McAdam, Counsel (SK)
And if we look at the end of the first paragraph in this letter, it refers to another conference call with the Premiers about this matter on April 9th. That’s true, right?
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P. Mitch McAdam, Counsel (SK)
And in Premier Moe’s letter, he shared with you the opinion of the Premiers that it was neither necessary, nor advisable to invoke the Emergencies Act at this time; that’s correct, isn’t it?
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P. Mitch McAdam, Counsel (SK)
And that’s what you heard at the conference call on April 9th; correct?
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P. Mitch McAdam, Counsel (SK)
And as a result, the Emergencies Act was not ever invoked by your government to deal with the COVID-19 pandemic, was it?
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P. Mitch McAdam, Counsel (SK)
And that was because ---
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P. Mitch McAdam, Counsel (SK)
Okay, understood. And, sir, would you agree with me that the provinces had the capacity and the authority or the tools to deal with the pandemic back in 2020?
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P. Mitch McAdam, Counsel (SK)
Twenty-twenty -- okay. And the provinces ---
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P. Mitch McAdam, Counsel (SK)
And the provinces were dealing with it. I think your words this morning were, “They had it under control.”
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P. Mitch McAdam, Counsel (SK)
Okay. And where ---
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P. Mitch McAdam, Counsel (SK)
Understood. And where federal assistance was required, it could be provided without invoking the Emergencies Act; correct?
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P. Mitch McAdam, Counsel (SK)
Now, Prime Minister, we’ve already heard today a lot about the consultation with the provinces in February of this year; in particular, on the morning of February 14th, so I won’t go through that with you again. But I just ask you if you will agree with me that the consultation process that was followed in February of this year was very different from the process that was followed back in the spring of 2020.
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P. Mitch McAdam, Counsel (SK)
Thank you, sir. Those are all of my questions.
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P. Mitch McAdam, Counsel (SK)
Absolutely, Prime Minister.
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P. Mitch McAdam, Counsel (SK)
Prime Minister, you'll understand that we as lawyers are always looking for precedents, and this is the only other precedent where your Government has considered invoking the Emergencies Act. Isn't that true?
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P. Mitch McAdam, Counsel (SK)
Thank you. Those are all of my questions.
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P. Mitch McAdam, Counsel (SK)
Good afternoon, Commissioner. I’m just have a little difficulty with my camera. There.
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P. Mitch McAdam, Counsel (SK)
Am I good? There. Thank you, Commissioner. I’m Mitch McAdam, one of the lawyers for the Government of Saskatchewan. Saskatchewan intervened in these proceedings for two reasons. First, because of concerns that the measures taken were overbroad in wo sense. First, that they interfered with provincial powers, and second, that they infringed on the rights of citizens. Second, because of concerns that the statutory threshold for invoking a public order emergency was not met. First, Saskatchewan is very concerned about the impacts of invoking the Emergencies Act on federalism. The emergencies power flows out of the Peace, Order, and Good Government clause in the Constitution Act, 1867 and gives the Federal Government the power to temporarily assume provincial powers under the Constitution. In many ways, it is like the Notwithstanding clause in the Charter. In this case, while the Federal Government has said that it was simply providing additional tools to police, the fact is that they assumed significant provincial powers. Policing is a matter that falls under provincial jurisdiction. The Emergency Economic Measures Order is not just about banking. It expressly deals with credit unions, insurance companies, trust companies, loan companies, securities dealers, and investment advisors. All matters that fall under exclusive provincial jurisdiction. While many of these powers were not relied upon by the police, the Order itself caused confusion and represented a serious, and in our view, unnecessary intrusion into matters under provincial jurisdiction. Second, the Province is also concerned that the measures adopted under the Emergency Economic Measures Order were overbroad and may have infringed on the Charter rights of Canadian citizens. But we will leave the submissions on that point to the Civil Liberties Group. Next I’ll turn to the threshold in the Act. Again, there are two branches to Saskatchewan's argument. First, the threshold is a statutory test. It's a high threshold and it's a high threshold for a very good reason. The threshold is not whether the Emergencies Act was necessary or whether it was helpful. The test is whether there are reasonable grounds to believe that a Public Order Emergency exists. Others will discuss, I suspect in great detail, whether that threshold is limited to threats to the security of Canada as defined by the CSIS Act or whether it's broader. I'll largely leave those arguments to others. However, there is one point that we think you must keep in mind as you sift through the evidence, and that's section 3 of the Emergencies Act. Section 3 provides that a national emergency is something that exceeds the capacity or authority of a province to deal with and specifically provides that a national emergency can only be invoked if the situation is such that it cannot be effectively dealt with under any other law. So you will need to examine the tools that were available to law enforcement to deal with the protests. We've heard a lot of evidence about tools in this case, and I would say that the Emergencies Act and tools is a bit of a chicken and game problem. Does the emergency arise first and then the Act provides for tools to deal with the emergency, or can an emergency arise because there aren't sufficient tools to deal with the situation? I tend to think it's the former, and I think there is a concern that the Emergencies Act should not be used simply as a way to fill in the gaps in the law. That was never its purpose. Second, Saskatchewan's primary focus in this case is on the consultations with the provinces. It is Saskatchewan's position that the consultations in this case were inadequate. We say that there are a number of things you should focus on. First, the precedent from 2020. Second, there were opportunities to consult with the provinces earlier. We've heard that the Emergencies Act was on the table by February 9th or 10th if not earlier. The federal government could have consulted with the provinces at the front end instead of at the back end. Third, there's evidence which we will suggest shows that the decision to invoke the Emergencies Act was de facto made on February 13th before the First Minister's Meeting. The Prime Minister confirmed this morning that the consensus at both the IRG meeting and the Cabinet meeting on February 13th were to proceed with the Emergencies Act. Fourth, the actual meeting that was held with Premiers on the 14th. This meeting was set up on very short notice with no indication of what the subject matter was to be and it lasted about one hour. When we file our written submissions, we will refer you to case law in other contexts which suggests that this is not an adequate consultation. Commissioner, those are our submissions on the key points that you need to consider during your consideration of the evidence that you've heard over the past six weeks. And finally, in closing, Commissioner, on behalf of Mr. Morris and myself, we would like to thank you for providing us with the opportunity to participate in these hearings virtually. It was much appreciated. Thank you.