Public Order highlights: Tuesday, November 8

TDF’s Legal Team

Written by
November 08, 2022

On day 19 of the commission, Ontario Provincial Police (OPP) Superintendent Dana Earley testified about her experiences during the convoy. She has served 28 years with the OPP. She was a strategic commander for the west region during the convoy and was deployed in Windsor in February 2022.

She learned on February 6, 2022, that the Bluewater bridge in Sarnia was blocked. The OPP Police Liason Team (PLT) team negotiated with the protesters to move a vital truck and opened the bridge. She also learned that the truckers were going to do a “slow roll” on the 402 highway later that week. She liaised with the truckers in order to allocate the proper resources. She regularly read the HENDON intelligence reports.

She was copied on an email dated February 4, 2022, alerting the OPP of potential bridge closures. There was some discussion of resource allocation: the OPP decided to deploy PLTs to Windsor. As of February 9, 2022, WPS did not know the exact number of police officers they would need. She was later appointed Critical Incident Commander of the event. 

Arriving in Windsor on February 9, 2022, she learned there were several hundred protesters and vehicles of various types blocking Huron Church Road. She was told that one driver drove into the crowd and was arrested. She noted that the crowd was disorganized, complicating the attempt to negotiate. She said that, at this time, she believed a policing solution was possible: negotiations could occur, and the PLTs could form a relationship with protesters. She drafted a mission statement that prioritized officer & public safety, the flow of traffic and the respect for the Charter right to protest. She said she intended to respect the Charter by maintaining the right to peaceful assembly and free speech of protesters through engagement by PLTs.

She said that OPP had a plan finalized with WPS by February 11, 2022. She learned through PLT that protesters were disjointed, having different goals. She was aware of 3 different groups among the protesters. She noted that counter-protesters were a potential problem.

She testified that she was concerned by the presence of children. She said that the majority of the children went home overnight, so she planned to execute the plan early in the morning. The plan involved graduated steps from negotiations, public announcements, ticketing, and towing. 

In the afternoon of February 11, 2022, a PLT member brought her a letter from a protest organizer stating that if a government representative would meet with protesters, then the protest would end. She had some concerns that the decision to delay any action in Windsor would have a possible effect on the protest in Ottawa - however, she decided to go forward with the plan. She noted that the protest was taking on a “party atmosphere.”

She said the Windsor injunction was another tool she and her team could use. She included it in her media strategy. She said very few protesters left after the implementation of the injunction. The OPP printed and distributed pamphlets to the protesters containing information about the injunction. She said the declaration of a provincial emergency and the injunction worked in conjunction. She added that Windsor and Detroit tow trucks were available: there was no issue with their willingness to assist. She testified that the police had the necessary support from tow truck companies, and they had no issues securing jersey barriers.

She said OPP had a vehicle ready for children, and they spoke to Children’s Aid Society in preparation for enforcement. On the morning of February 11, 2022, they gave the protesters an opportunity to leave and always left an opening for protesters to exit the area. She said the traffic plan focused on maintaining the flow of traffic to the US: she did not want protesters coming from the side streets to return. Supt. Earley said she was able to rely on the Criminal Code to keep protesters out of the area. 

On cross-examination by the government of Canada, she said it was her understanding that the protesters did not want to leave until all restrictions were lifted. She agreed this was a volatile situation. She was also concerned about children in the protest, which she claimed, she witnessed. She said the children were not staying overnight, however. She said there was an increased risk of counter-protesters. She believes that the president of UNIFOR threatened to come to the protest with a large group of counter-protesters: this was concerning to her.

She said all the blockades had to be considered since she believed protesters were monitoring police plans and responding. She indicated that there was a bomb threat made to a towing company: she assigned additional officers to the area. She said she was deeply concerned about keeping Huron Church Road cleared and acknowledged that the protesters could return.

On cross-examination by Alan Honner of The Democracy Fund (TDF), she agreed that there should be no political interference with policing. She was shown a transcription of a call between Premier Ford and Prime Minister Trudeau: the Prime Minister told the Ontario Premier that “he doesn’t need more tools” because the protest is already illegal. She testified that she did not experience political interference. She managed to resolve one of the most urgent priorities of the government without the need for the Emergencies Act. She agreed that to the extent that it was disclosed in the HENDON reports, there were no violent extremist threats in Windsor, though this was the responsibility of the WPS. She also agreed that there were 44 arrests: 88 charges, almost all of which were mischief or breach of a court order - none of which were charges citing any violence.

Paul Leschied testified in the afternoon. He is a contractor and was a convoy protester who attended the Windsor protest. He grew weary of the direction of the fundamental rights and freedoms that could be revoked depending on compliance with mandates. He participated in several peaceful, lawful protests so people’s voices could be heard. He fundraised for people who had lost jobs or businesses due to the pandemic. He had several rallies at the flag in the downtown area. He was not part of a formal organization, but it was a loose network of people he met over the course of the events.

He heard some rumours about a blockade of the Ambassador bridge, but he was not involved in the discussions. He attended the blockade on February 7, 2022. He would usually go to the protest after his children were in bed, between 8-9 pm to 12-1 am. He testified that three or four pickup trucks were blocking Huron Church road both ways when he arrived on February 7, 2022, and that most people were on foot - approximately 40-50 people standing on the sidewalks, some in the intersection. Police were present on foot and in vehicles. He left the protest at 1 pm on February 7, 2022. At this time, there were approximately 12 protesters remaining.

He understood that the truck drivers were protesting because of the mandate that required compliance with COVID-19 vaccination. He spoke with some police officers who expressed support for the rights of protesters to protest peacefully. He said on the second night, protest vehicles were able to come and go despite barriers. On Friday, however, the messaging from the police changed. Many protesters were resolved to stay until they had a discussion with a government official. This view was mainly from professional truckers who faced job loss under the border mandate. He said that there was a lot of exaggeration by the media about the protest: it was being painted differently than what he experienced. He remembers seeing trucks blocking the bridge, but this was cleared quickly: there were only 4-6 trucks blocking southbound traffic. The mainstream media coverage made it seem like it was much larger than it actually was. He’s observed the same sort of misrepresentation from protesters in Ottawa. 

On cross-examination by the government of Canada, he agreed that some of his materials are imported across the Ambassador bridge and that imports affect many other businesses. He agreed that there was no one person in charge of the protest, and it was a diverse group. He said after February 11, 2022, not all the protesters left the site following police operations. It became apparent that police operations would increase due to the presence of military-like vehicles. 

Mr. Leschied agreed that one of the reasons he attended the protests was in part because of skepticism of the mainstream media and in solidarity with business owners who had suffered due to the mandates. He said during the week, there was no intention of the protesters to engage in violence, so when he was told by friends that people hurled slurs at police, it was suggested that these people might be agent provocateurs attempting to instigate a violent clash with police.

He had friends in nursing or firefighter who lost jobs because of mandates, or business owners who were close to bankruptcy. He described the environment as cordial, with music and food being shared. He did not see families during the night. He heard from others and through pictures and videos that there were children there during the daytime hours. He did not witness anyone using or threatening to use a child as a human shield or see any illegal or registered weapons, acts of violence or vandalism. He saw drones overhead, and law enforcement had cameras and smartphones scanning the area. His bank account was frozen on February 18, 2022. The freeze was lifted on Tuesday - a period of roughly 4 days. He was never provided an explanation.

Marco Van Huigenbos was the final witness to testify before the commission on Day 19. He is a town councillor in Alberta who participated in the protests in Coutts, Alberta. He joined a slow roll on January 9, 2022, to protest provincial and federal mandates. He was aware of social media pages on Facebook facilitating the protest. He testified that it was never his intention to block the border, he wished to create an inconvenience to call attention to his cause. 

He stated that the highway just north of Coutts became very busy as the truck scale was opened. He added that the “backup was halfway to Milk River.” Transport trucks prevented the flow of traffic, and by January 31, 2022, some of the vehicles had left the protest. He stated that it was never the general intention to remain in Coutts. Royal Canadian Mounted Police (RCMP) Community Conflict Management Group (CCMG) officers arrived in the area shortly after the arrival of the protesters. There was very little structure to the protest in groups. There were some groups that previously were not engaged in anything that joined the protest. 

RCMP set up checkpoints on January 31, 2022, along the highway between Milk River and Coutts. Many entrances and exits were being monitored by the RCMP. They began to knock on the doors of the vehicles and asked the truckers to leave or face arrest. It was -30 degrees celsius at this time. Once RCMP began threatening arrests, many protesters traversed the barriers that the RCMP had set up just north of Coutts. After breaching the barriers, the protesters formed their own barricade ditch to ditch with the idea of deterring further RCMP enforcement. The RCMP discontinued enforcement action as a result. 

RCMP officers attempted to negotiate a resolution with the truckers. Initially, RCMP took a heavy-handed approach: upon failure, they entered into negotiations.

There were commercial vehicles being held up unintentionally behind the protesters blocking traffic. The protesters allowed these vehicles to travel. They were in discussions with the residents and the school board. They opened up a lane on each side. Mr. Van Huigenbos became a point of contact for the RCMP. 

He said that this was an organic, grassroots movement, and they were supportive of the Ottawa protests. Three excavators joined the protests on February 10, 2022, as a distraction to catch the eye of the RCMP. When the third excavator entered, the police ordered them to leave. The trucker who brought them could not legally drive them out as he had exhausted his 13 permitted driving hours. The RCMP disabled the excavators as a result.

He believed that the Alberta government took a heavy-handed approach to COVID-19 mandates and that the politicians had lied to Albertans. Mr. Van Huigenbos testified that they were being governed by the health authority rather than elected officials. He had communicated with MLAs, during which he asked if they would be willing to lift the mandates. He knew that it would be a process and that nothing would happen overnight, but substantive negotiations never occurred. 

He said that the citizens of Alberta were dealing with a health authority using emergency powers and a Premier who decided he was “the boss.” He had one conversation with the transportation minister. He conveyed to her that the reason for the protest was to have the mandates lifted. She, however, did not have the capacity to lift them. This was only an introductory call, no negotiation of substance occurred.

Mr. Van Huigenbos was looking for a commitment to remove the mandates from Premier Kenney, which was not provided.

Mr. Van Huigenbos was charged with mischief following the conclusion of the protest and was issued a summons. He was never arrested, but his charge remains outstanding.

He ended his involvement in the protest and left following a cache of firearms being discovered in a nearby home where weapons charges were laid. He described all of the positivity of Coutts being lost following these arrests. He believed that it was time for the protest to come to an end, and by noon on February 14, 2022, the remaining protesters had agreed. At 9:45 am on February 15, 2022, the protesters departed Coutts.

Mr. Van Huigenbos testified that the COVID-19 restrictions and mandates messed with the lives of Albertans and that the experts made statements replete with mistakes. For public trust to be regained, there has to be accountability.

During cross-examination by the Government of Alberta, he testified that he advised protesters not to interact with the media, but ultimately they were free to make their own decisions. He stated that he and his family received threats during the protests.

He described a car accident involving two Coutts residents south of Milk River. One individual was a protester, the other was not. No charges were laid. He testified that the RCMP was also involved in a car accident where an officer failed to stop at a stop sign and struck another vehicle.

He stated that there was no violence during the protest: it was peaceful. There were children playing road hockey. It was a very Canadian protest. 

With respect to the threats made against him, Mr. Van Huigenbos testified that individuals called his place of work and told his administrative staff: “we’re coming for your family.” He had never dealt with anything like this before in his life. His family, from that day forward, could not reside at that address until the protest had concluded.

He was not aware of any arrests during the protest. They maintained an orderly event: there was no drinking in public and no speeding. 

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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