Public Order highlights: Wednesday, November 9

TDF’s Legal Team

Written by
November 09, 2022

On day 20 of the commission, Mayor Jim Willett gave testimony. He has been the mayor of Coutts, Alberta, for the past four years.

Coutts is a small community without many of the amenities available to larger municipalities. During the blockade, drivers were prevented from travelling between Milk River to the US border. Traffic could be rerouted around the blockade through detours, but they were not widely known. 

On January 4, 2022, protesters notified officials that truckers would “slow-roll” the border but would not block residents. Following this notification, Mr. Willett read a Facebook post about the blockade of Coutts scheduled for January 29, 2022. He wrote to Alberta Premier Kenney and the Ministry of Justice about the possibility of a border blockade. He was told that the Royal Canadian Mounted Police (RCMP) was “on top of it.”

During the early part of the blockade, it appeared that the RCMP did not have control of the situation. He understood that officials had already begun negotiations with protesters. Mr. Willett testified that officials who attempted to speak with protesters were shouted down. 

By February 6, 2022, he said, “sometimes the road was open and sometimes it wasn’t.” He said on February 7, 2022, that some truckers were travelling across the border. He spoke to a protester on February 14, 2022, about the RCMP arrest for firearm possession, including the claim that the “guns were all fake,” and was told that the mood among the protesters had changed and they were all going to leave the next day. He said he observed all of the protesters leave on the night of February 14, 2022. The vehicles were mostly tractors: they lined up and then departed. He stated that no enforcement powers under the Emergencies Act were used: “that had nothing to do with it.” He had no knowledge about whether the protesters in Coutts were connected to protesters in other areas. 

He stated that the longer the protest went on, the more likely it was that outsiders would join. He said the mood of the protest changed over time. He said it was like a community meeting of farmers. He said it was mostly a farmer - rather than a trucker - protest: “it was a family thing with kids.” He said that over time, the protest changed: the kids were no longer present, but he did not observe any violence or harassment. He said he received one death threat over Facebook and that the RCMP took it seriously though he remained unsure about the seriousness of the threat. He said he received hang-up calls but added: “everyone does.” He testified that he did not observe weapons in Coutts.

Mr. Willett said the protest was supported by roughly 70% of Coutts residents. He heard “a couple” reports of intimidation of residents: some people were stopped when they drove through the blockade, but he added that such reports should be taken with a “grain of salt.” He said there was no physical intimidation and that the protesters were able to clear an emergency lane when required. 

On cross-examination by the lawyer for the government of Canada, Mr. Willett said the border crossing is of vital importance to the province and Canada as a whole. He said his community has almost zero crime because many residents are CBSA agents, and “someone might have a gun” if a thief breaks into a home. He said a massive influx of strangers would change this dynamic. He described the protesters as “domestic terrorists” in a text message because “they were causing harm to the country.” He said he was told that a vehicle attempted to ram a police vehicle and that he was aware of protesters being arrested. He claimed that a video taken of Pastor Pawlowski “incited the crowd.”

On cross-examination by the lawyer for the Convoy Organizers, Mayor Willett said he spoke to the protesters. During an interview with CTV news, he said, “the protesters were not as bad as I thought,” “they are my neighbours,” and “they are the guys who haul for local businesses.” He said the majority of his town supported the protesters. He said that there is a great dislike of the federal government in his community and said he believed the grievance is due to a belief that Albertans are not represented in Ottawa.

On cross-examination by Alan Honner for TDF, he acknowledged that there were border crossings in other areas that increased during the Coutts blockade. He said he thought it was correct that the protesters left due to the seizure of weapons rather than the invocations of the Emergencies Act. He said he thought the RCMP should have used the provincial Critical Infrastructure Defence Act to remove the blockade. He agreed that under that legislation, fines and arrests could be made for blocking critical infrastructure. 

Mr. Willett said he was never against the protest and added that they had the right to protest as long as laws were obeyed. He said he participated in the protest himself when he communicated with the federal government along with other mayors that “it wasn’t right that these people were treated as pariahs.” He said the emergency order declaration had little to do with the clearing of the blockade: it was cleared by police action. He said protesters continued to protest in a designated area once the blockade had cleared the highway.

Deputy Solicitor General for Ontario, Mario Di Tommaso, gave evidence next. He was in charge of oversight of the OPP, though he did not direct operations. After he learned that a protest might take place, but before the protest occurred, he was comfortable that there was a plan to deal with it. He did not have oversight of Chief Sloly of the OPS since that purview resides with the Ottawa Police Services Board.

He understood that this was a policing matter to be dealt with by the Ontario Provincial Police (OPP) and Ottawa Police Service (OPS). However, he realized that the truckers became entrenched after the first weekend. He was surprised that the truckers became entrenched: he thought there was a plan to park the trucks outside downtown and then bus them into the core. He did not have concerns at this point there about public safety threats like robberies or aggravated assaults. He said the community’s mental health was being impacted. He did not hear about any violent assaults from Commissioner Carrique. He agreed that an early report from Commissioner Carrique indicated that things were under control. 

On January 31, 2022, he received reports that protesters appeared to be more confrontational with police. However, he knew that PLTs and public order units were being utilized at this time, so his concerns were mitigated. 

The commission took a brief break following a medical event. 

Once the hearing resumed, Ian Freeman was called to give evidence. He was the Assistant Deputy Minister of Policy and Planning at the Ontario Ministry of Transportation. He discussed providing the OPP with information regarding tow truck operators. He said the Ministry of Transportation did not have a specific role in the protests. Officers of MTO can enforce provisions of the Highway Traffic Act. 

He said that MTO was expecting a peaceful protest in early February 2022, and the ministry made itself available to support policing efforts if required. He described that there were escalating steps the MTO could take toward suspending a vehicle or trucking licence, and it could not vary from this process.

He said MTO had difficulty finding tow truck drivers willing to assist during the convoy protest. He was told by tow truck operators that there were threats to livelihoods. Eventually, MTO was able to find ten tow trucks that were deployed to the Ottawa protest under the OPP banner. He said powers under the Emergencies Act were not used, though the indemnification provision was helpful. He does not know if this tipped the scales. He said to his knowledge, there was never a request for MTO resources that it could not meet. He said that the “demerit system” to force compliance was a long-term rather than a short-term solution to the problem of clearing the protest.

He understood that the provincial EMPCA emergency powers provided police with the tools to do what was being requested prior to its implementation, i.e. enforcement. He testified that MTO facilitated the transportation of jersey barriers to the protests in Windsor and Ottawa. He noted that contractors were worried about the implications of assisting the government with these actions. 

On cross-examination by the lawyer for the Government of Canada, he was shown the MTO plan which mentioned MTO locations that it believed might be affected by the slow-roll protest. It was contemplated that some truck inspection stations (TIS) may be closed due to the protest. He conceded that the protest was bigger than originally thought. He understood that MTO was asked not to use TIS for the purpose of stopping trucks through inspections. He said he did not think the protest was primarily a federal issue: he thought of it in terms of a policing issue. 

He conceded, on cross-examination by the lawyer from the Canadian Civil Liberties Association (CCLA), that the province had authority under its emergency legislation to compel tow truck operators to work with the province. On cross-examination by the lawyer for the Convoy organizers, he was asked about the federal law governing bridges and tunnels, allowing the federal minister to regulate bridges and tunnels if there was a concern for the safety of Canadians. He did not know the specifics of the law but agreed that it would probably have been helpful to use it to clear blockades.

On cross-examination by Alan Honner of TDF, he agreed that the tow truck companies were providing their services willingly prior to the invocation of the Emergencies Act.

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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