Public Order highlights: Thursday, November 10

TDF’s Legal Team

Written by
November 10, 2022

On day 21, the commission heard testimony from Royal Canadian Mounted Police (RCMP) Assistant Commissioner Marlin Degrand. He was aware of the blockade at the Coutts border and was in contact with RCMP officers policing the protest. He understood that the RCMP engaged in negotiations with Coutts protesters. He said there were varying degrees of traffic flow at times: sometimes 50%, while on other occasions, it would be shut down temporarily. It was resolved around February 14, 2022. 

He said he was aware that a charge was laid against Pastor Pawlowski under the Critical Infrastructure Defence Act. He said that the Emergencies Act was not involved in the clearing of the border. 

He was advised on February 14, 2022, that the protesters had decided to leave. There were 13 individuals arrested during the enforcement efforts but none afterwards. He confirmed that none of the powers under the Emergencies Act were used to effect these arrests.

He understood that there was some difficulty obtaining tow trucks. They did manage to secure a small number on February 12, 2022, and by February 14, 2022, had almost completed the list of required items. The RCMP made a formal request to Minister Mendicino on February 6, 2022, for the heavy lift capacity of the military. He said that contracting operators was the biggest impediment. However, a later email stated that the Canadian armed forces did not have the capacity to provide the required heavy lift machines. He was aware that the Canadian Armed Forces (CAF) was reluctant to get involved in policing activity. 

He said that the RCMP did not require the legislative authority of the Emergencies Act: it required the logistical resources. He understood that there was a meeting of the first ministers and the federal government on February 14, 2022, about its invocation. 

On cross-examination by the lawyer for the government of Canada, he testified that he knew about other blockades in Alberta, but these were resolved relatively quickly. He said there did not appear to be centralized leadership at the Coutts blockade. There was no information or intelligence of coordination between Coutts and Ottawa. He agreed that the situation under Article 9 of the Provincial Service Agreements was an emergency, but this definition was distinct from other legal definitions of emergencies. He was aware that there were protests planned in Edmonton for February 4 and 5, 2022, involving several thousand vehicles. RCMP reporting notified him that Pastor Pawlowski had arrived in Coutts to encourage people to stay. He was shown a video of Pastor Pawlowski talking to a crowd about their choice to leave or stay at the Coutts protest.

He later received an email about firearms and possible violence: he agreed that firearms were found at Coutts. He agreed that counter-protesters attended occasionally and that this could have increased the risk of violence if not managed. He was shown Mayor Willett’s email talking about “domestic terrorists” and “freeman on the land.” He agreed that the Emergencies Act was invoked at 4:30 pm EST. He said he received no consultation on the invocation of the Emergencies Act and understood it was the position of the province of Alberta that it was only minimally consulted and did not request its invocation. 

On cross-examination by the lawyer of the Convoy Organizers, he said he was not aware of the undercover operation regarding weapons. He was not aware that the undercover agents were RCMP officers. He did not know if the federal executive branch was told of information about the weapons seizure. He conceded that none of the Emergencies Act provisions were used to clear the Coutts blockade. He did not believe any Coutts protesters had their bank accounts seized. He was not aware of requests to RCMP to allocate further officers to Ottawa. He conceded that RCMP Commissioner Lucki could have asked for these resources.

On cross-examination by Alan Honner of The Democracy Fund (TDF), he was shown a letter dated February 15, 2022, between Premier Kenney and Prime Minister Trudeau. He had seen this document before. The letter said, “we are facing significant impacts on the health & safety of Canadians.” He was not told why this was said. He agreed that the tow trucks and equipment were procured and in place by February 13, 2022: it was all the equipment they needed apart from 2 vehicles (a tire truck and a mechanic truck). He did not have information beyond speculation regarding a conspiracy to commit murder. He agreed that if the timing is as outlined, the RCMP raid on Coutts took place before the ministers’ meeting about the Emergencies Act and before the invocation of the public order emergency.

Deputy Solicitor Mario Di Tommaso returned to give evidence in the afternoon. He was asked if he had public safety concerns but said he had information from Commissioner Carrique that there were no overriding public safety concerns (including physical violence). He said the mental health effects on the Ottawa residents did not rise to the level of a public safety concern. He said it did not, later, rise to the level of a public safety issue, but it did increase over time. He was told by Police Chief Sloly that hospitals were still accessible and not blocked: he asked because that was a public safety concern. He recalled hearing Chief Sloly say on February 7, 2022, that there may not be a policing solution to the protest. He felt that there was a policing solution.

Deputy Solicitor Di Tommaso said that he still had confidence in the Ottawa Police Service (OPS) at this time. He said the province would “move heaven and earth” to make sure the OPS had all the necessary resources. He claimed that the right to peacefully protest “belongs to people, not trucks.” 

He did not agree that the declaration of the local emergency meant that the protest was a threat to the public safety of Ottawa residents. He said by February 6, 2022, he did not have concerns of violence. Neither Chief Sloly nor Commissioner Carrique expressed concerns about significant public safety issues in Ottawa. He said the open fires and fuel did not present public safety concerns with reference to the Criminal Code. He said the protest was an inconvenience but not a public safety concern at this time. He now says that it was much more than an inconvenience. Mr. Di Tommaso said he did not speak to Premier Ford at any point. He said the province was providing significant support to the City of Ottawa. By February 6, 2022, the province had provided significant resources from the Ontario Provincial Police (OPP) to OPS. Ministry of Transportation of Ontario (MTO) was also involved, and the province was providing advisors to the Ottawa police board. He agreed that the City of Ottawa believed it wasn’t receiving adequate support from the province. 

There was some discussion about having high-profile individuals negotiate with protesters, and also some discussions about negotiations involving federal or provincial ministers, but he was only able to secure the involvement of a provincial minister. He did not see a role for politicians to deploy resources: that would not have been appropriate: it was a policing matter and a police response. 

He was shown the transcript of a conversation between Prime Minister Trudeau and Premier Ford previously introduced by Alan Honner of TDF. With respect to the tools available to police at the time of the telephone call between Ford and Trudeau, he said he was not in receipt of any requests for resources from the parties. He was not asked for additional legislative authority. He stated that he believed they had all the authority they needed. 

When deciding to declare a provincial emergency declaration, they consulted with Commissioner Carrique about the tools he required. When asked about the tipping point to declare an emergency on February 10, 2022, he said the matter was escalating: there were more protests in different areas. He said, under the EMCPA, there is a limitation: the parliamentary precinct was not included in critical infrastructure. This was to enable people to peacefully protest at this location since the right to peaceful protest is a Charter right. He stated that amendments to the regulations under the provincial emergency declaration were made to ensure it was effective.

Mr. Di Tommaso testified that the provincial emergency declaration was helpful in clearing the protest in Ottawa and Windsor: they could tow vehicles and suspend licenses, it gave police the ability to tow and store vehicles themselves, it levied significant fines. He said there was a 2-part test under the EMCPA and that, prior to February 10, 2022, there were no requests from police for further resources. 

He had a phone call with Deputy Minister Rob Stewart on February 13, 2022, about a possible declaration of a federal emergency. He noted that the penalties under the EMCPA are greater than the Emergencies Act. Deputy Minister Stewart did not indicate the reason that the Emergencies Act was being considered. He asked again on February 14, 2022, but was not given a response which he took to be an affirmative answer. He said he passed this on to the Solicitor General. 

It was his view that the Emergencies Act could help resolve the protest, but he thought the provincial emergency declaration was sufficient. He did not answer the question about why, then, the provincial government supported the declaration of the federal emergency. He agreed that the Emergencies Act gave the OPP the power to compel tow truck operators to act, but he did not know if this power was used. Further, it was his view that there were tools that could have been provided by the municipality under its declaration of a municipal emergency. He stated that the operation to deal with the protest was a success since no deaths or injuries occurred. 

On cross-examination by the lawyer for the government of Canada, he said he did have a concern that the protesters could intentionally stretch police resources thin. He said he learned that some of the protesters were former military and police on February 10, 2022. He said these people may have a “better understanding of logistics than most.” He remembered a discussion with Commissioner Carrique that there was a plan to stretch police resources but does not remember if he passed this information on to his superiors.

He accepted that the protesters made unreasonable demands and that their composition changed over time: he agreed that this would make engaging protesters challenging. He said that, with respect to the letter sent to Windsor protesters, it had little success in resolving the protest. He tried to get more authorities to sign on to the letter, however. He said he was aware of a letter sent to Tamara Lich at a later date, and this did not end the protest. He acknowledged the assessment of the OPP on February 14, 2022, in a report that said there was no way to compel the protesters to voluntarily leave the protest. He acknowledged that there was nothing the federal government could do to change provincial vaccine mandates. 

He said that, by February 10, 2022, the situation met the definition of an emergency under the provincial EMCPA. The Ontario state of emergency continued until February 23, 2022 (though the Orders made under it continued afterwards due to a fear of protest recurrence). He was not surprised that Premier Ford expressed support for the federal declaration of an emergency. 

On cross-examination by the lawyer for the convoy organizers, he said that s.4 of the Emergency Management and Civil Protection Act (EMPCA) does not allow for the declaration of an emergency to put pressure on another level of government. If that had happened, then it would not have been proper. He recounted some examples of politicians engaging in conflict resolution for protests. He said it ought to be the case that the police make a request for a politician to become involved. He said that the Ontario provincial government, including the Minister, was ready to become involved. He said with regard to operations, deployment and investigations, politicians cannot direct police. He said, in his view, many politicians were involved in discussions, and they expressed their views publicly. He said this, however, the commissioner was focused on dismantling the protest.

On cross-examination from the lawyer for the Canadian Civil Liberties Association (CCLA), he agreed that civilian oversight is essential for proper policing. He agreed that, when drafting the orders under the EMPCA, they should be Charter compliant and minimally impairing. 

He later said that at the time the protesters were converging on Ottawa, the OPP had no grounds to prevent them from peacefully protesting. 

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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