Public Order highlights: Monday, November 7

TDF’s Legal Team

Written by
November 07, 2022

The commission heard testimony from Windsor Mayor Drew Dilkens in the morning.

He has been mayor since 2014, as well as the chair of the police services board. He said the city under the Community Control Group (CCG) – a body responsible for overall emergency policy and coordination – was providing operational support to the police when it became clear that the event was significant. He clarified that Canada Border Services Agency (CBSA) offered to clear the drivers and tow trucks over the border, though they did not offer to provide tow trucks.

He noted that the Ambassador Bridge is owned by a private company but follows the laws of Canada when Canadian jurisdiction applies. The Canadian side of the bridge operation is administered by the Ministry of Transport. CBSA has a presence on the bridge, and Canada owns its side of the bridge-tunnel. Millions of dollars worth of goods cross the bridge each day. Many people cross the bridge for employment. If an accident happens on the bridge, the Windsor police respond, provided the accident is on the Canadian side. 

He learned of the convoy from Windsor chief of police Mizuno and was told there may be “slow roll” protests on February 4, 2022. He was told everyone had been peaceful and they were monitoring the situation. He sent a text to Minister Mendicino advising that there was a risk of a blockade. On February 6, 2022, he learned that there was also a risk of a blockade in Sarnia. 

The Windsor authorities made plans to provide support and prepare for the incoming protest. The Windsor Police Service (WPS) created a plan to deal with the protest, including incremental steps to deal with a blockade at Huron Church Road. The province provided 6km of jersey barriers. He said the city had private contractor towing services but the operators were being threatened. He said it would have taken a long time to clear the vehicles, but the towing companies did not refuse services. 

There were ongoing negotiations with protesters that kept one emergency lane open, but then this stopped. He was told by the chief of police that they did not have enough personnel to deal with the protests and asked for 100 additional officers. The mayor discussed this with Minister Mendicino and Solicitor General Jones. The chief put this request to the Royal Canadian Mounted Police (RCMP) and Ontario Provincial Police (OPP) in writing on February 9, 2022. 

He met on camera with the police services board and was advised by the chief “not to let the protest grow”: they did not want bouncy castles and hot tubs at the protest. They wanted de-escalation and public safety, but once the protest was in place, the chief made the request for 100 additional officers. They had a plan in place but did not have the resources.

He said the police services board did not at any time direct the WPS. It did not take special measures under the Police Services Act. Everyone was aware that public safety was a priority: no one needed to get hurt. He was aware that when enforcement officers attempted to issue tickets, they were “swarmed.” He said his house was threatened with a bomb, and police were dispatched. They said that they had to get the roadway open. 

He knew that one councillor - a lawyer - was told that there would be a protest at his law office, but this never materialized. Many businesses were concerned about the effects of the blockade. He spoke to Premier Ford, but the issue of a provincial emergency declaration was not discussed, nor was the invocation of the Emergencies Act.

He supported the private lawsuit for an injunction: city council made a motion on February 10, 2022, to do so. He knew that WPS was “on board.” The injunction became effective on February 11, 2022, at 7 pm. The City of Windsor was an intervenor because that was the best way to tell the story of affected businesses, including the Chrysler factory. The Attorney General of Ontario was also an intervenor. The injunction gave the WPS another tool when making an arrest. The city announced the injunction in pamphlets and on social media. He said there was an adequate notice of the injunction given to the protesters. He was told that many protesters thought it was “just a piece of paper” and it was something to rally behind. However, he understood that more resources were arriving to deal with the protest.

He understood that under the provincial emergency declaration, protesters could lose their driver’s licence or trucking licence. After the jersey barriers were in place and the provincial emergency invocation, the protesters began to leave. On February 12, 2022, police started their operation.

By February 13, 2022, he understood that WPS had full control of the bridge area: the blockade was cleared. On February 14, 2022, things were going well. He saw a report that the Emergencies Act may be in the works. He did not have a discussion with Minister Mendicino about the invocation but understood that the Minister was looking for a justification from the mayor about it. 

The thinking was that enforcement efforts could provoke a further response, so there had to be a plan to prevent a “flare-up.” The invocation of the Emergencies Act “sent a message” that the protest would not be allowed to recur. 

When asked why a municipal emergency was declared after the bridge was cleared, he said it was done to deal with the new roadway “pipeline” created by the blockade removal. He said that once the condition was stabilized, he ended the municipal emergency and removed the jersey barriers.

He later gave some remarks to WPS that the event remains a national security situation. He said it was also a “national economic situation.” He said it was a police decision to deploy the 6km of jersey barriers to maintain control of a piece of national infrastructure.

He was told by the chief of police that there might be continuing threats but did not have other intelligence on that. He was not aware that Emergencies Act powers were used to clear the bridge. He expressed concerns to Minister Mendicino about dealing with future blockades operationally and financially: the city of Windsor had to shoulder all the costs. 

The blockades affected Windsor due to auto parts shortages at the Chrysler plant and elsewhere. Essex County has many greenhouses that export produce to the US: these businesses were also affected. He said it was important for Canada to be seen as a reliable trade partner. 

He said the costs to the city were over $5 million, mostly due to extra policing: overtime, jersey barriers, etc. He reiterated, however, that none of the measures in the Emergencies Act were used to clear the Windsor bridge. 

On cross-examination by the Citizens for Freedom, he conceded that he had a responsibility to consider the minority view. He did not speak to or meet with any of the protesters. He said he did know that some protesters had been protesting by the bridge since 2022 but did not connect them to the convoy protesters. He understood that the protesters were composed of locals and out-of-towners at a 50/50 split. He did not know of other protesters in March 2019 in relation to a protest on the bridge with respect to university cuts. He conceded that the bridge and tunnel were shut down for the annual Windsor Detroit marathon. He did not know of a CBSA strike that caused bridge disruptions. He said even though these were disruptions, they were of a different nature and size: the convoy protests involved a complete closure. He said he was told by the chief that one lane was open at times but that did not last. He said as long as one lane is open in each direction, then “that works.” He agreed, however, that in his experience there is always some slowdown due to repair and renewal along that route - but it does not stop international trade. He said there is ongoing construction along the route. He said the slow rolls in January 2022 were not a concern. He was shown an email from the city advising that the OPP had closed down the Sarnia border on February 6, 2022, for police action. 

When asked about concerns of possible vigilantism, he said he heard from social media that some groups might go down to end the protest: he wanted to “take the temperature down.” He said the harm to which the injunction referred was “economic harm.” He heard from police that children had arrived at the protest and they were going to stand down enforcement: the protest swelled dramatically. He said this was in direct relation to a call to support by a local church. He said he was concerned that the situation could “flare up again.” He said he viewed the events in Windsor as being ideologically connected to the events in Ottawa. He was also, he said, concerned about the flow of money. He said the protest was a national economic security issue and that it was connected to a national security issue. He said the invocation of the Emergencies Act sent a signal that the federal government was taking it seriously and that it helped prevent a “flare-up.”

On cross-examination, however, the mayor conceded that he is not a national security expert and did not practice national security law. He said he’s familiar with CSIS as the national intelligence agency and that it is a good source of intelligence information. He was shown a document from CSIS warning of radicalization after the invocation of the Emergencies Act.

He said the protest was unprecedented. It began on February 7, 2022, and cleared on February 13, 2022. He was not sure if there were fewer trucks in Windsor relative to Ottawa. He claimed that there were possibly 200 protesters at times. He said he spoke to the Prime Minister about the blockade but did not discuss the Emergencies Act invocation. They did discuss the possibility of an announcement from the US designating the protesters as inadmissible into the US. 

Deputy Chief Jason Crowley of the WPS testified after Mayor Dilkens. He stated that at the time of the protest, WPS did not have police liaison teams. On February 4, 2022, the WPS planned to set up a barrier in order to manage a slow roll. They had information that the bridge would be blocked on or about February 7, 2022. Approximately 35 officers were dispatched to deal with this situation. He said some police had to disengage from the protesters at some point on February 7, 2022, to de-escalate the situation. 

He was asked about the opening and closing of lanes. He believed that it was due to in-fighting among protesters. He was asked about the protesters in the high school parking lot: he said they were told to leave, but some protesters approached the officers with tire irons. He said the WPS wanted to keep protesters off private property. 

Deputy Chief Crowley described the integration and planning with the OPP during the implementation of the injunction and the declaration of a provincial emergency under the Emergency Management and Civil Protection Act. He said that the injunction allowed the WPS to focus on perimeter roads (rather than just Huron Church Road) and lay additional charges. He said the EMPCA did not affect operations that much.

He claimed that the plan developed by the WPS and OPP was designed to balance the right to protest and prevent blockades. He said the WPS had no problem with protesters on the sidewalks. He claimed that police respected protesters’ right to protest on the sidewalk, but the police did not want them to block the road. Protesters were not allowed to stop on Huron Church road, however. He said that the jersey barriers were helpful in preventing blockades. When asked if the federal emergency declaration assisted police, he said it did not affect police operations, but it may have dissuaded people, though he said this was speculation. 

He said he does not know if, during the marathon, the bridge is completely closed or restricted. He was aware that there was construction on the bridge in 2022, and it was closed entirely for a short period of time.

On cross-examination by the government of Canada, he said the crowd was volatile and aggressive. He said on February 10, 2022, there was a threat to blockade the police headquarters: he was worried that the police might not be able to respond to 911. He said there were threats to other bridges and locations, but these threats did not materialize. He said there were bomb threats directed to the mayor’s residence and behind the police lines - none of these threats were credible, however. He said he imagined there was a protest drone over the area but could not say for sure. He said the presence of children at the protest caused the police to contact the Children’s Aid Society before enforcement. He said there was information that protesters were going to use them as human shields. He was shown a tweet from an unknown person alleging that “children are our best weapons.” He said this was consistent with his understanding of the situation. He claimed that police resources were “spread thin” in Windsor. He was concerned that protesters could return. He said he did not use the Emergencies Act, but that was “because the resurgence did not materialize.”  

Further, on cross-examination, he agreed that not all threats on social media posts are credible, and they did not materialize. Nonetheless, resources had to be distributed. Lawful protest was still permitted as long as traffic was not being impeded. He was shown a number of videos and agreed that protesters arrested on the sidewalk were not impeding traffic.

He testified that there was uncertainty among WPS due to the number of slow rolls occurring in January and February 2022. The nature/location of the Ambassador Bridge gives rise to additional complications which are not necessarily present during other protests. He was familiar that a resolution attempt was made by some of the protesters in discussions with the PLT. Ultimately, these discussions were unsuccessful in ending the protest. 

During cross-examination by counsel for the Convoy Organizers, he was asked about a social media post citing the use of children and that the protest was “war.” He stated that he did not know who the person was, whether they were at the protest or whether they were even a real person. When shown the results of an investigation regarding the use of children, weapons and aggressive remarks, which discovered no wrongdoing, DC Crowley agreed that social media could not be relied on exclusively. 

Hamilton PS and Waterloo PS were also present and assisting WPS at the protest. They used mainstream and social media, and handed out flyers to inform protesters that they would be charged if in violation of the injunction. When asked if there was violence at the Ambassador Bridge, DC Crowley answered “yes” but provided no explanation/evidence. He claimed that there was no political involvement regarding his actions at the Ambassador Bridge.

Commissioner Rouleau inquired about the arrest of the individual sitting on the ground in the video and how that fits the WPS narrative. DC Crowley stated that this protester was within the “area of control”: if they were inside the area of control, they were arrested irrespective of position on or off the road. He said approximately one-half of Huron Church Road was unavailable for protesters - sidewalks included. 

It is important to recall that, in order to justify its declaration of a public order emergency under the Emergencies Act, the government must establish, on reasonable grounds, that a public order emergency exists and necessitates the taking of special, temporary measures for dealing with the emergency. The situation must be so dire that it cannot be effectively dealt with under any other law of Canada.

The definition of a public order emergency is an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.

Threats to the security of Canada is defined, in the Canadian Security Intelligence Services Act as: (a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage, (b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person, (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

*All quotes are subject to revision as Commission video and transcripts become available.

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