Public Order highlights: Tuesday, November 15

TDF’s Legal Team

Written by
November 15, 2022

RCMP Deputy Commissioner Mike Duheme and RCMP Commissioner Brenda Lucki were the first panel to take the witness stand on Day 23. Commissioner Lucki described her role as overseeing the administration and operations of the Royal Canadian Mounted Police (RCMP). She said that, during the protests, she liaised with Chief Sloly and briefed ministers on situational reports regarding goings on of the convoy. She participated in regular briefings with Minister Mendicino and was in regular contact with Ontario Provincial Police (OPP) Commissioner Carrique.

Mr. Duheme stated that he was responsible for foreign interference and terrorism along with intelligence with respect to border crossing and international intelligence. He was responsible to ensure that RCMP Commissioner Lucki had accurate information prepared for briefings.

Upon the arrival of the convoy, Mr. Duheme stated that RCMP had to deploy resources to escort elected officials on their way to parliament. He said RCMP POUs were not dispatched to clear the roads. They were restricted to the egress and ingress of elected officials. 

The HENDON reports assisted in informing RCMP intelligence. Despite this report, RCMP maintained the belief that Ottawa Police Service (OPS) had the situation under control. Early on, there were no requests made by OPS for assistance. 

When asked about RCMP resources committed to the events in Ottawa, Commissioner Lucki stated that initially all resource requests were fulfilled. At its peak, 600 RCMP officers were deployed and an additional 500 personnel. Commissioner Lucki expressed confusion about Chief Sloly’s request for 1800 officers. She stated that she was not aware of what the plan was or which services the 1800 officers were to come from: that it was a general request, and RCMP was caught off guard.

Commissioner Lucki testified her point of contact in the federal government was Rob Stewart.

She had text exchanges with Commissioner Carrique wherein she claims that the federal government was losing confidence in the OPS by the second weekend of the protest. They were not expecting the protesters to stay that long. She stated people observing from outside the RCMP had not seen any enforcement action. She said, during deputy ministers' meetings, people were asking about when the protest would end: from this impatience, she inferred that people were losing confidence in the OPS.

By February 5, 2022, she had already contemplated that the federal government might invoke the Emergencies Act. She was concerned that the RCMP would be brought in to lead. She said politicians were asking her about resources the police forces needed but at this time they were not asking her about specific actions the RCMP could take.

She said politicians expressed a desire to end the protest: both the RCMP and politicians felt pressure to end it. However, jurisdictional issues were important, even at the end of the protest, so that OPS maintained jurisdiction.Eventually, an integrated plan was created. It used some provincial powers of the Emergency Management and Civil Protection Act (EMPCA) but did not rely on powers under the federal Emergencies Act. She was not told that the plan had “gaps” from existing legislative authority.

She agreed that she was the “window” into policing for the Cabinet and IRG: she collected reports and provided that information to those groups. Commissioner Lucki was shown notes from a meeting where she expressed the view that not all legal tools had been exhausted prior to the invocation of the Emergencies Act. She agreed that the notes were made after the IRG (Incident Response Group) meeting and before the Cabinet meeting. 

On February 13, 2022, she said she would not have briefed the Cabinet on the details of the plan, only that the plan existed. She said she did convey to the Cabinet that there was talk about the plan and that the plan was in progress. She agreed that, in general, she had told Cabinet previously about the plan but that the plan had not been officially approved. She appreciated that she should have expressed her views on this key issue to the Cabinet. Nonetheless, she did note that the plan did not rely on the powers granted under the Emergencies Act. She agreed that she did make it clear, previously, that the police had a plan and that the legal tools had not yet been exhausted. 

The RCMP knew of a threat assessment request by the NSIA (National Security and Intelligence Advisor). The deputy commissioner suggested that an intelligence work product was produced that dealt with the existence of Ideologically Motivated Violent Extremism (IMVEs).

Commissioner Lucki noted that Windsor was beginning enforcement operations whereas Ottawa was not at that point yet. She denied that clearing the Windsor protest was a priority.

At the February 13, 2022, IRG meeting, it was noted that police were able to erect a control access zone without the use of Emergencies Act powers. 

On cross-examination by the lawyer for the convoy organizers, she agreed that the RCMP was responsible for security for foreign diplomats. She was shown an email stating that the RCMP advised that there were no concerns as of February 4, 2022. She did not have any further information about diplomatic threats but had not reviewed all the RCMP documents.

The Commissioner was aware that the RCMP should be independent of the political executive. She said the political executive should not be involved in operations. She disagreed that the political executive asked the RCMP to take action regarding the protests. However, the deputy commissioner was taken to a note dated February 9, 2022, where the clerk of the privy council says that “we need to take over.” In another note, the deputy commissioner is shown briefing political executives on police operations. The RCMP Commissioner said she was never asked by political executives for briefings on operational plans, however. There was another note that suggested an OPP officer could be offered to work with OPS “for political reasons.” The deputy commissioner could not explain the use of the phrase “for political reasons.” There is a note that the Minister of National Resources was concerned that there exists a concentrated effort to “make the country look bad.” A Minister was shown complaining that “we are not responding fast enough.” The Minister also mentions throwing “OPS under the bus” for any policing failures. There was a comment in the deputy commissioner’s note that the PM said the “RCMP haven’t done anything.” The Commissioner agreed that the Minister never asked the RCMP if the protests constituted a security threat under s.2 of the CSIS Act. She stated that she is aware that CSIS advised that there was not a s.2 security threat.

She stated that she did not ask for the invocation of the Emergencies Act, but she was asked about the legal tools that might be useful. Asked about the theft of weapons, she agreed that the stolen weapons were recovered within 2 days of the theft. She agreed that she said “the invocation of the Emergencies Act was not a failure of policing”: she said it was because the protest was unprecedented. The deputy commissioner agreed that the OPS had the same intelligence as the RCMP due to Project HENDON intelligence sharing. 

Neither the deputy Commissioner nor Commissioner would define the Windsor blockade as a national security threat: Commissioner Lucki clarified that it was an “event,” but not a national security event.

The Commissioner agreed that she requested of Minister Mendicino the right to restrict assembly, cell phone disruption and other things: all of these requests, but for the cell phone restriction, were provided under the Emergencies Act. She understood that the Emergencies Act did not supersede Charter rights and any restrictions needed to be limited to minimal impairment. She did not seek financial tools under the Act. The deputy minister understood before invocation of the Emergencies Act, the RCMP and banks would need a court order to seize assets. The deputy commissioner agreed that after the Act, the RCMP became the focal point for the financial powers exercised under the Act. The RCMP would obtain information from OPS and OPP on relevant criminal investigations and submit them to the banks. The license plate numbers were also collected, then RCMP would validate those license plate numbers to determine if the person is “still there”, at which point the information would be sent to financial services. Sometimes the person was contacted to tell them that their bank might be informed, at which point some people would agree to leave.

The banks were required to report bank holdings of designated individuals to the RCMP. A reporting letter from TD was shown, indicating that various accounts of a designated person were frozen. The Deputy commissioner said the RCMP did not tell the banks which accounts to freeze. However, he conceded that the RCMP did have a call with the banks to discuss the process and provided a form to use. He said the RCMP would reach out to its legal team to determine what was “in scope and out of scope.” He said the RCMP used its discretion not to coordinate with insurance companies. 

He said the primary purpose of these financial measures was to deter and disrupt people in the protest. 

During cross-examination by the City of Ottawa, Commissioner Lucki agreed that it would have been more accurate had she informed cabinet members that she had fulfilled all of the requests for additional resources except for those that were still in assessment.

In cross-examination by the government of Saskatchewan, Commissioner Lucki agreed that the federal government was aware of an approved enforcement plan between the police services on February 13, 2022. In a meeting on February 14, 2022, with the NSIA, deputy commissioner Duheme referenced an “inevitable outcome”. He does not believe that NSIA was aware of the operational plan. Commissioner Lucki stated that nobody was briefed on the details of the plan, but they were briefed on the existence of the plan.

Counsel brought up minutes of a meeting with Cabinet which stated “Lucki did not get PM briefed on the plan, PM will be enacting EA.” Commissioner Lucki agreed that this was accurate.

On cross-examination by Alan Honner, litigation director of TDF, the Commissioner was shown an email dated February 21, 2022, from Jody Thomas, the NSIA, where she asked the Commissioner for conditions for revocation of the emergency order. She said this was probably because the RCMP was the main point of contact for policing. She did not agree with her deputy when he said that “truckers hanging around is when you get blockades.”

She was shown notes that indicated she was at a briefing, post-invocation, where she was not invited to speak. She denied that it was because she had reservations about the declaration of an emergency. She agreed that Minister Mendicino knew of her reservations before the meeting where it was decided to declare an emergency. 

In cross-examination by the government of Canada, Commissioner Lucki agreed that the firearms stolen in Peterborough had been recovered. She agreed that the Emergencies Act provided the RCMP with additional tools to compel tow truck companies to provide assistance. When asked whether the War Museum was an alternative location to continue protesting once the Emergencies Act had been invoked, Commissioner Lucki agreed that it was. She added that despite some individuals wanting to leave following the invocation of the Emergencies Act, they were unable to do so due to the positioning of vehicles.

Deputy Commissioner Duheme testified that the enforcement of the protest was a success. He stated that there were no injuries and very little use of force. Commissioner Lucki said that the freezing of bank accounts reduced the footprint as protesters were required to leave in order to address their frozen bank accounts. She stated that the Emergencies Act allowed RCMP to stop people from entering the area and that the results speak for themselves.

Commissioner Rouleau expressed confusion about the national scope of the HENDON report. DC Duheme stated that there was national information “coming in,” but the focus was on Ontario. Commissioner Lucki added that it is not unusual for something to originate outside of the RCMP. Rouleau asked if there is something that the RCMP produces that updates nationally. Lucki responded that there is a centralized bureau to produce reports nationally. Comm. Lucki confirmed that she made no recommendation regarding the invocation of the Emergencies Act.

The next witness to take the stand was Deputy Commissioner Curtis Zablocki. He is the commander of “K” Division, which is geographically Alberta. He first became aware of the convoy through open-source information on January 19, 2022. Then on January 26, 2022, he became aware of a potential blockade and identified potential organizers. Several meetings were held. He heard that there may be trucks on the US side as well.

He described preparations for securing towing services while holding off on enforcement action. At the end of the day on January 31, 2022, towing companies were no longer inclined to assist the RCMP. Towing contracts were never secured for the duration of the protest at Coutts. He testified that communication with the protesters was the first step of enforcement when a protest becomes unlawful. The goal was to create a lawful process site towards Milk River. RCMP engaged the protest leaders early in the first and second weeks. He stated that the protesters wanted to stay in Coutts.

He confirmed that RCMP made a request for Canadian Armed Forces to assist with the blockade at Coutts. CAF advised that it did not have the necessary equipment to assist. The government of Alberta was making a similar request to CAF and received a similar answer.

There were plans to execute an operational plan regarding firearms in the protest group. This was carried out before February 14, 2022. A number of firearms were seized from nearby mobile homes: 13 individuals were arrested. Four are charged with conspiracy to commit murder, mischief, and possession of dangerous weapon. Six were charged with mischief as well as possession of a dangerous weapon.

On the afternoon of February 14, 2022, it was agreed that the protesters would remove their equipment and tractors from the roadways.

In cross-examination by the government of Alberta, Mr. Zablocki agreed that there were several instances of successful negotiation. Eventually, the protester group stabilized and communication became more streamlined. Police were confident that they would be able to deal with the protesters at the blockade. Heavy towing capability became available on February 14 or 15. Protesters first indicated a desire to leave the protest site on February 14, 2022, following the firearms arrests. He agreed that all enforcement efforts and successes at Coutts, Alberta occurred prior to the declaration of the Emergencies Act.

On cross-examination by the lawyer for the convoy organizers, Mr. Zablocki was shown a CBC news report claiming that undercover RCMP officers participated in the operation seizing weapons from individuals at Coutts. He said the RCMP knew of these individuals on February 9, 2022, but made arrests on February 13 and 14, 2022.

On cross-examination by Alan Honner for TDF, Mr. Zablocki agreed that US tow truck operators were prohibited from coming to Canada if they were unvaccinated. 

He agreed that there was no evidence of coordination between protesters in Coutts and Ottawa. 

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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