Juno News - October 29, 2022


Still no proof Emergencies Act was necessary (ft. Keith Wilson)


Episode Stats

Length

17 minutes

Words per Minute

174.43431

Word Count

3,099

Sentence Count

14


Summary


Transcript

00:00:00.000 I'm going to bring into the discussion in just a moment's time Keith Wilson who is a lawyer
00:00:13.340 extraordinary King's Counsel the first King's Counsel I've ever met because he was the first
00:00:17.760 to change from the QC that he had had for so many years. Keith it's good to talk to you thanks for
00:00:23.440 coming on today. Thanks for having me on Andrew. So let me start first off with this business
00:00:29.740 with Doug Ford here. Why on earth is it that the Premier would have to be summonsed to appear
00:00:37.740 when just last week he was saying yeah I'm all for appearing I'm all for coming they just haven't
00:00:42.120 asked yet? Well he's given the answer with the judicial review you mentioned that he doesn't
00:00:47.900 want to testify and that of course raises some interesting questions. What is he worried that
00:00:53.400 he's going to be asked? What is he worried that he might have to answer? This is very surprising
00:01:00.720 even to me who as you can imagine with all the things I've been through I've got a pretty high
00:01:05.520 threshold for surprise and this one trips it handily. Yeah I mean I would say that as far as
00:01:12.760 people that we could benefit from hearing from here the Ontario government will be a fascinating
00:01:18.060 one because this was the government that had to grapple with the Ambassador Bridge blockade and
00:01:23.720 it's the government that managed to clear up that blockade without the Emergencies Act using regular
00:01:28.740 policing powers just in a matter of about 48 hours. So I actually think hearing from Premier Ford about
00:01:35.160 why you couldn't just apply what you did there to Ottawa would be a fascinating revelation for the
00:01:41.620 Commission. Well and for all of us I mean what's what's striking is compared to something else the
00:01:48.680 the Premier Ford's position as we now have learned in the last number of hours which is compared to the
00:01:54.280 position of the Prime Minister. Doug Ford was not a decision maker with respect to the invocation of
00:01:59.500 the Emergencies Act. The Prime Minister was and he's expressed a willingness to to testify is not
00:02:06.720 requiring to be subpoenaed he's coming under his own volition I think he realized he had no
00:02:11.240 choice but you know why Premier Ford would do this to himself he's likely to lose his judicial review
00:02:20.560 just because the case law is so clear he's not precluded from invoking a privilege when he's asked
00:02:27.900 a question if the question triggers privilege so this is bad political strategy in my view he would
00:02:35.940 have been better off to just say yeah I'm happy to come and share whatever mission I have and
00:02:40.240 help Canadians get to the bottom of this it's a very important inquiry and happy to be here instead
00:02:45.460 he's just he's just embroiled himself in a self-imposed controversy. When we talk about the witnesses that
00:02:53.260 are slated to appear we've got members of the convoys board we've got more police representatives we've got
00:03:00.840 some bureaucrats from all number of federal departments and intelligence agencies we've got federal
00:03:05.700 cabinet ministers I know that this is fluid and more witnesses could be added here we also have
00:03:12.060 that statutory cutoff where the report has to be tabled by by February and I'm wondering is it
00:03:18.680 possible to cast too wide a net here and bring in more people than are needed for the commissioner to
00:03:24.180 make the decision or is your view that this witness list is actually so light that key details are being
00:03:29.560 amissed? Well the you're right that it's a it's a dynamic process the witness list that everyone's seen was the
00:03:37.180 first preliminary witness list there will be a new witness list coming out soon and it will have a lot more
00:03:45.540 names on it and that's the nature of this process we've been working with the commission's lawyers on on expanding the
00:03:53.340 number of witnesses that will speak on behalf of the freedom convoy protesters uh so it is and and the
00:03:59.400 other thing that's happening here is which is really unusual for lawyers anyway is that normally before you
00:04:06.080 go into something like this all the documents are disclosed and you have a chance to review them
00:04:10.040 we're getting new documents disclosed every day and the last count we had we were uh we were over 15,000
00:04:19.000 records over 20,000 well over 20,000 pages of documents so um the the the paper evidence just
00:04:27.900 keeps coming in by the day that depending on our review of it and what we find and other parties finds
00:04:33.520 then triggers a request so for example one of the things that that our group and a number of other
00:04:38.800 lawyers representing other groups made a formal application uh last week late last week to have
00:04:45.620 the commissioner issue a subpoena to the head of the cbc to testify because one of the focuses in the
00:04:52.460 order in council for this public inquiry is to examine misinformation and disinformation and given
00:04:59.900 that we couldn't understand why the head of the cbc wasn't at the top of the witness list so um we know
00:05:06.500 that mendocino and other ministers have routinely referred to fake news stories as a basis of their
00:05:14.140 decision making so this uh inquiry has been fascinating since the first day as you note
00:05:20.520 we're on day eight of 38 days of of evidence we still have at least 30 days to go assuming we don't
00:05:27.420 start sitting saturdays and i think we're going to start sitting the hearing on saturdays very soon
00:05:31.720 just on a on a this is not a question that's coming from anywhere but my own mind here
00:05:37.340 is there a mechanism at all to delay the production of the report if for some reason they need more
00:05:45.220 time for hearings they need more witnesses more time to put it all together or is that a complete
00:05:50.340 no-go under the statute well the what's the statute the statute simple says that you have to table your
00:05:58.440 report before the legislatures of the provinces uh and the parliament of canada and the senate
00:06:03.620 within 365 days of the revocation of the invocation okay so that puts us into february next year
00:06:11.640 as to whether or not the commissioner decides so he's got two blocks of time left hearing time
00:06:17.340 and then review and writing time he may decide to chop a week or two off of his his writing time
00:06:25.080 for him and his commission staff and and extend the hearing um the only other i've been asked this
00:06:31.520 question many times the only other situation would be if the parliament and the senate decide to amend
00:06:38.780 the emergencies act to modify section 63 and change it from 365 days to some other number
00:06:46.760 so um uh we can all guess at what the mechanics of that might be but the commissioner is uh running a
00:06:54.440 very tight ship uh we put in a request each day by five o'clock for the witnesses we're going to be
00:07:00.320 cross-examining three days from now and that's the rule we do every day we're working seven days a week
00:07:04.720 uh many many hours a day and night um and we have to identify all of the documents that we're going to
00:07:11.960 put to the witness in cross so we would have identified uh interim chief bell what i guess on
00:07:18.320 friday of last week um and then we so we may say we need an hour and a half to cross-examine
00:07:24.800 interim chief bell and then the commissioner will say you get 15 minutes or you get 10 minutes or
00:07:29.980 you get 20 minutes so that's how it works for all the parties and uh and he's got a stop clock up
00:07:36.240 there as you probably noticed he'll sometimes let you run over a little bit but he's running a pretty
00:07:41.360 tight ship and um uh you know right now we're assuming we're going to finish on time and but we're
00:07:47.940 very much alive to the fact that in the next couple of weeks we'll probably be sitting on saturdays and
00:07:52.720 holding the hearing on saturdays as well as going till eight and nine o'clock each night
00:07:56.820 i want to play a very brief clip here from uh today this is brendan miller representing
00:08:02.540 uh freedom corp uh during his cross-examination of interim chief bell earlier today talking about
00:08:09.020 this idea of there being a plan by police without the emergencies act last question just because i just
00:08:16.960 want to get this clear but so you're saying that there was existing laws that you could have done
00:08:21.340 the same thing under is that right we had a plan we were going to execute a plan thank you
00:08:27.420 very clear question you had existing laws the interim chief says there was a plan we had a plan
00:08:33.640 uh you know when when these sorts of revelations came out last week there was a part of me that
00:08:38.040 wondered if you know in very dramatic hollywood-like fashion brendan miller could just say i rest my case
00:08:44.120 nothing further and go home because really that seems to be inherently inherently disqualifying for
00:08:51.440 the emergencies act the way the act is written well when brendan uh and you know we're thrilled
00:08:57.280 to have him leading our team and being the lead barrister uh that was to be my job but after i
00:09:03.420 assessed brendan's skills and the role that i'm taking in this inquiry and the fact that i'm likely to
00:09:08.060 testify it simply wasn't proper to have me be the barrister um but brendan's doing a terrific job
00:09:14.500 but when he did his opening statement you'll recall andrew that he was very straightforward and he laid
00:09:20.600 out here's the four things that you that that that the government has to establish you know that there
00:09:26.740 was acts of sabotage or or espionage there will be no evidence of espionage there will be uh that they
00:09:33.980 have to establish that there was threats of serious violence against persons and property there will
00:09:38.240 be no evidence and he went through the list in his opening statement he reframed his opening statement
00:09:44.380 at a cross-examination questions when he interviewed the head of the opp's intelligence unit um and he
00:09:51.560 answered each one of them you know in the negative there what there there's no evidence of serious
00:09:57.660 violence against property there was no evidence of insurrection there was no evidence of of uh of terrorist
00:10:03.140 activity all of these requirements so after that cross-examination last week of the head of the
00:10:09.040 opp's intelligence uh group we we we did kind of joke well you know time to pack our bags and head home
00:10:16.640 to our families but of course we got to see this thing out and we will because it's not just the legal
00:10:22.580 test that's at issue here it's the narrative and i'm really concerned about this element of
00:10:28.340 misinformation disinformation because in my view having cross-examined all the various government
00:10:34.140 experts um and officials on the peckford case with respect to the justifications for the mandates and
00:10:40.060 the vaccine approval process and all of these other issues i know where the disinformation is
00:10:45.760 it's it's it's from the government and so there's there's other narratives that need to be explored and
00:10:51.980 exposed and it's going to continue to be a fascinating inquiry in my view you mentioned the the peckford case
00:10:58.240 you and i have spoken about this in the past and i covered the uh hearing that took place on the
00:11:03.960 federal government's application to dismiss the whole thing as moot because in their words the
00:11:07.980 mandates were gone you don't need to be vaccinated to get on a plane case closed and it was quite
00:11:14.020 disheartening the other day when the federal court justice the associate chief justice uh approved that
00:11:19.580 she granted that motion she said this is moot reasons have not yet been published here but uh even
00:11:24.880 though the federal government in its own language has said this was a temporary suspension they've
00:11:30.820 managed to essentially convince the federal court of this country that it's not worth hearing whether
00:11:36.800 that mandate was unconstitutional to begin with now i know uh premier peckford maxine bernier uh some
00:11:42.640 of the other applicants as well i believe have said they're going to appeal this but i was wondering if
00:11:47.900 you could explain in the absence of decisions why you think that went the way it did in the absence of
00:11:52.740 reasons rather well i mean i hate to be cynical but i have no choice given what i've seen and it's just
00:12:02.700 clear to me when you look at the decisions of our courts at the provincial level in the federal level
00:12:08.820 they've just been been um unwilling lacking the judicial courage i believe to do the hard analysis
00:12:18.200 um i i i don't feel that uh you know there's the the image of lady justice with the scales of justice
00:12:27.180 and the blindfold the blindfolds probably you know down over her nose right now is how i'm feeling
00:12:34.500 and um uh they're just when you look at the legal test for whether or not to grant a mootness motion
00:12:42.160 you know when there's a serious constitutional issue at play is one of the reasons not to strike
00:12:48.560 out a case for mootness and we have clear uncontroverted evidence that over six million
00:12:56.020 canadians fundamental right of mobility under section six of the charter were grossly violated
00:13:01.080 resulting in them being unable to be at the side of dying loved ones attend funerals be there for their
00:13:08.120 first grandchild to help a loved one be discharged and recover from hospital to go to to weddings and
00:13:15.860 other important celebrations that this was a violation of charter rights on a scale that has
00:13:22.920 never occurred in our history and is almost unimaginable but it happened and for the court to
00:13:29.140 say well you know nothing to see here they they suspended those travel mandates now move along everyone
00:13:37.200 is uh is not helpful um the courts as i said to the judge in my oral argument provide a fundamental
00:13:47.520 role in a modern democracy in a civil society they're the third leg of the stool we have the
00:13:52.640 legislative branch of government we have the executive branch of government and we have the
00:13:56.880 judicial branch of government and they're to perform checks and balances and what's happened with
00:14:01.660 this mootness ruling is the federal court is checked out and that doesn't make the stool more stable
00:14:07.200 i i'm i've remarked on this on the program in the past but when in 2019 the leaders debates commission
00:14:14.280 banned true north and rebel from covering the debate we filed a case for an injunction we won
00:14:20.000 and our longer term case was dismissed as moot and then in 2021 the leaders debates commission does
00:14:26.520 the exact same thing with rebel rebel goes and files another case wins again so as a matter of
00:14:33.700 practicality when there is a significant risk that something like this is going to happen again i think
00:14:38.560 it should be heard but as you've mentioned even if we knew that the mandates were done forever which i
00:14:43.000 wish we could take for granted but we can't this was such a significant breach of canadians rights
00:14:49.780 that it should absolutely have a declaration on record that it was unconstitutional and i i hope that
00:14:56.360 appeal is successful keith i i do just going back very briefly before we let you go to the the public
00:15:02.480 order emergency commission this week we're hearing a bit more from police i just got the the list of
00:15:08.620 expected witnesses for tomorrow we've got russell lucas from the ottawa police service marcel baudin
00:15:13.940 from the opp robert drummond from the ottawa police service are we expecting more of what we've been
00:15:20.360 hearing or do you think that from law enforcement there's still a little bit that could come out that might
00:15:25.120 qualify as a bombshell or a smoking gun to use the popular lingo uh there could be some bombshells in
00:15:31.860 the sense of contradicting uh early test earlier testimony from some of the other police officials
00:15:36.880 but i think we're going to see more of the same you know that i was uh along with tom marazo and
00:15:42.840 eva chipiac we were the ones that there's been a lot of evidence about the negotiations that occurred
00:15:48.020 at city hall and we were the ones in the room and um um we were we we just about had a big success in
00:15:58.760 the early days at sussex and rodeau which was a really tough intersection uh to deal with um given
00:16:04.660 the nature of the people who are protesting there and then we negotiated with the help of former chief
00:16:10.400 chief of staff to premier ford dean french the umbrella deal to actually de-escalate the entire
00:16:16.680 thing just before the invocation of the emergencies act and one of the things that's occurring to us
00:16:22.300 sitting there as eva and i and tom are listening this testimony in real time is that you know we know
00:16:28.440 exactly now why these deals didn't ultimately be successfully implemented it was due completely to
00:16:34.400 policing competence like they just lacked the basic communication competency to place the police in
00:16:43.180 the right places and remove them from other places to allow the deal to be implemented we were constantly
00:16:49.120 blocked by the police and seeing their handwritten notes from the chief's meetings about knowing about
00:16:55.340 the deal and the instructions and their frustration with the communication not getting through
00:16:59.540 it's just remarkable in a very disturbing way the level of incompetency of the police that's been
00:17:08.280 revealed and i think well i'm pretty confident you're going to see even more to come and this is
00:17:15.000 many things but a national emergency it is not uh it's a national embarrassment and that's not a
00:17:21.780 reason to invoke the emergencies act keith wilson i know you are uh plugging away daily in ottawa and
00:17:27.620 we'll be sure to have you back as long as uh as long as you can spare some time outside of the
00:17:31.680 hearing room and also your colleague eva chipiuk is welcome back anytime thanks so much sir always good
00:17:36.340 to talk to you thank you thanks for listening to the andrew lawton show support the program by donating
00:17:41.880 to true north at www.tnc.news