Public Order highlights: Monday, November 14

TDF’s Legal Team

Written by
November 14, 2022

On day 22, the commission began with an overview of the process of declaring an emergency under the Emergencies Act. The emergency and orders under the Emergencies Act were issued on the advice of the Prime Minister and the Cabinet. On February 3 and 15, 2022, the Cabinet had two full meetings to discuss the protest. There are various other federal government advisory bodies to the Cabinet that assists the government with formulating a response. These bodies frequently met during the month of February 2022. 

The commission heard evidence from Rob Stewart, then Deputy Minister Department of Public Safety and Emergency Preparedness, and Dominic Rochon, then Senior Assistant Deputy Minister National and Cyber Security Branch.

Mr. Rochon said the National Cyber Security Branch aggregates information from various police and intelligence sources but does not produce it. Mr. Stewart said there is a difference between intelligence and information. Information is anything gained from open sources; intelligence (human or signal-based) is classified at various levels and represents a threat to Canada if disclosed. 

On January 15, 2022, they became aware of some protests across the country. They then learned on January 20, 2022, of convoys forming. At the time, the information they received was that the convoy was expected to be peaceful and would leave after a weekend. Mr. Stewart said that the protests were organic and fluid: it was difficult to get definitive intelligence on them. There was a fear that it could impair critical infrastructure. There were daily briefings at this time.

They understood early on that the Ottawa Police Service (OPS) was seeking further resources. Mr. Ronchon spoke to Mr. Kanellakos of the City of Ottawa to advise that the federal government had no intention of mobilizing the Canadian Armed Forces. 

Mr. Stewart testified it was never the view of the federal government that it had no responsibility in addressing the protest. He said there was a concern that the province of Ontario was not taking appropriate action. Mr. Stewart had discussions with Deputy Attorney General Mario Di Tomasso regarding the protest in Windsor. There was no sense of violent extremism, but there was “criminality.” Mr. Ronchon said Canadian Security Intelligence Service (CSIS) has come to define and track “ideologically motivated violent extremism”: at this time, the threshold for a security threat was not met, so CSIS was not monitoring the protest for Ideologically Motivated Violent Extremism (IMVE).

Mr. Stewart said there was a concern that local tow trucks would refuse to provide services. There was some discussion about the use of Canadian Armed Forces heavy towing vehicles. However, this was determined to be inappropriate. On February 4, 2022, there was a view that the OPS may not bring the protest to an end without the assistance of the federal government. They arrived at this view due to the information from OPS Chief Sloly. Mr. Stewart was told that it was difficult to perform enforcement. He said it was difficult to get the police to agree to a plan due to “personality issues.” He said the Royal Canadian Mounted Police (RCMP) was already ready to assist, but getting RCMP officers into Ontario involved logistical effort: paperwork, agreements and requests. He understood that police always preferred to de-escalate without taking enforcement action because it’s safer for both police and the public. He said the general impression that what began as a protest about vaccine mandates had grown beyond that.

The federal government had decided not to engage with the protesters: this was an issue of principle. The government did not want to get involved in a discussion about federal health policy.

He said that, by February 10, 2022, the OPS, Ontario Provincial Police (OPP) and RCMP were close to making a plan and that enforcement was inevitable. He said the intention was to “shrink the footprint” of the protest rather than to engage in negotiations. However, he said there was some discussion to propose a bargain to protesters: if they left the protest and denounced it, there would be engagement by federal officials at a later date. 

When the provincial emergency was declared, the provincial government asked if the federal government was prepared to produce a joint statement stating that both levels of government would engage with the protesters. However, he said the federal government declined to do so. 

Around February 11, 2022, the Emergencies Act started to become seriously considered. The government had previously considered the use of the Emergencies Act during the pandemic but decided it was not useful at that time. All departments involved were asked for ideas. Mr. Stewart was concerned about serious violence. He was also concerned that by declaring the Emergencies Act, it might provoke violence. He agreed that he underestimated the impact of the Emergencies Act. 

Mr. Rochon said that, following the invocation of the Emergencies Act, he was asked to give technical briefings to government officials to explain the reason for the invocation of the Act and the operational details. He had a telephone conversation with Deputy Solicitor Di Tommaso about the invocation of the Emergencies Act: he knew Prime Minister Trudeau had a First Ministers’ meeting that morning and did not want to disclose anything further at that time. He said he attempted to convey to his colleagues that the bar for invoking the Act was high. He said serious violence and economic impact were considerations for both invocation and revocation. 

During the cross-examination of the lawyer for the convoy organizers, Deputy Minister Stewart was asked about the process of law enforcement and investigations. He agreed that CSIS is the party responsible for the administration of the CSIS Act. He was taken through the provisions of the CSIS Act to clarify that under s.2, CSIS is only required to have reasonable suspicion to open an investigation - in contrast to the test for reasonable grounds whereby charges can be laid. He was shown a briefing where CSIS Director Vigneault stated that at no time did the convoy protests constitute a threat to the security of Canada or a source of sabotage. He conceded that he was advised of this by Director Vigneault. CSIS did not assess that the protests were a source of IMVE. He said that the Cabinet also knew all of this. He said it was clear to him and clear to ministers that they did not have reasonable suspicion of a s.2 CSIS Act threat. Despite this, CSIS assessed the threat according to its own standards: the government assessed under broader national security interests. He was asked about the agency that gave him grounds to assess a s.2 CSIS Act threat: he said nobody advised that. He claimed that the Cabinet made its own assessment. 

Mr. Stewart had some information that the protesters may not leave quickly. He said he was concerned about the risk of serious violence. At the time that the convoys began and moved toward Ottawa, they were not thought of as a national security threat.

He agreed that the federal government determined that a national security threat existed. He did not agree that intelligence was flawed: he said that it is limited to the time it was collected. He said as it grew and became entrenched, the protest rose to a national security threat given its implications on trade, reputation, economic, and safety issues. He said the government came to consider the invocation of the emergencies over time, and the border blockades were a part of that. Mr. Stewart was asked which organization was consulted about the invocation of the Emergencies Act: he said the RCMP, OPS, and OPP were asked about other tools they needed but not consulted about the invocation itself. There is no written record of consultation with law enforcement agencies, but he said there is a record of meetings where the tools were discussed. 

Mr. Stewart agreed that the Emergencies Act gives the government additional authorities and tools but not the authority to direct police or the manner of enforcement. He agreed that the Orders under the Act gave police new enforcement powers and that this sent a message from the federal government that it was taking the protest seriously. Additionally, he agreed that the Emergencies Act included broad financial powers that were not present in the provincial or municipal legislation. 

He said the invocation of the Emergencies Act provided useful tools. He offered no view on whether it was necessary. He said, on February 14, 2022, that he was unsure about the extent of the new powers the Emergencies Act provided. He did not know if tow trucks had been obtained by the province prior to the Emergencies Act. He said he could only speculate about whether the Emergencies Act had an effect. 

Mr. Stewart did not know of any first nations official that was consulted prior to the declaration of the emergency. He said Justice officials would be in the best position to determine if and when first nations should be consulted. 

The lawyer for the government of Canada then showed Mr. Stewart a document indicating that some first nations officials were consulted. 

Mr. Ronchon suggested that there were intelligence gaps in relation to the convoy protests. Mr. Stewart said that, after the declaration, for example, the government did not know what would happen during enforcement. He was aware that after the invocation of the Act, many of the border protests ceased. He claimed that there was a serious concern about IMVE and potential violent attacks. They both claimed that there was a threat of violence the longer the protest was allowed to continue: IMVE could be seen as taking advantage of the situation. 

Cindy Termorshuizen and Joe Comartin testified before the commission in the afternoon. Ms. Termorshuizen is the assistant deputy minister at Global Affairs Canada. Mr. Comartin is the retired consul general of Canada in Detroit. 

Ms. Termoshuizen claimed that, as the protests continued, the trade disruptions became more prominent and serious. They were shown a February 9, 2022, tweet from a US official demonstrating concern for Canadian supply chains. Other US officials expressed concern that trade was disrupted at the border. Members of the auto industry told Mr. Comartin that production lines were closed down. 

As of February 11, 2022, Mr. Cromartin’s information was that the Emergencies Act would not be invoked. There was some concern regarding American funding/support for the convoy by American citizens. It was claimed that a very large percentage of the funding was coming from US sources. Ms. Termoshuizen was concerned about Canada’s reputation abroad. She testified that the Canadian flag was being used as a symbol of defiance of the law. She was concerned about the reputational impacts, however, she conceded that, to her knowledge, there were no detailed economic assessments of specific impacts. She testified that the Ottawa protest was being copied worldwide in Paris, Rome, and Sweden, which were being monitored. She further stated that the protest in Ottawa was not the kind of protest that one would associate with Canada. From a Canadian government perspective, she was concerned about foreign investment/trade. She had further concerns that Canada was not able to respond to the protests effectively. She raised additional concerns about noise, unlawful conduct and gas fumes. 

Ms. Termoshuizen became aware that the Emergencies Act had been invoked on February 14, 2022. She was providing inputs that may have informed the decision-making. She was aware of the reports showing that there was no evidence of foreign state involvement in the protests. She did not see significant amounts of foreign interference from foreign states. She did, however, note the significant amounts of disinformation entering the narrative.

During cross-examination by counsel for Convoy Organizers, Ms. Termoshuizen agreed that her concerns were particularly focused on international border crossings. She testified that there were no assaults on diplomats and no evidence that any of the protesters threatened any diplomat in Ottawa. 

She described her concerns that there were foreign state actors using disinformation to negatively impact Canadian democracy.

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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