Public Order highlights: Friday, November 18

The commission began the day by hearing testimony from the deputy secretary to cabinet, Jacqueline Bogden, and Jeffery Hutchinson, a senior adviser in her office.

Ms. Bogden said she was supporting the Prime Minister in acute phases of emergency situations. Mr. Hutchinson supports the Safety and Emergency Management Committee. He prepares documents for the committee. 

Ms. Bogden said that the protests were expanding across the country over the first weekend, and this concerned them. She attended a meeting on February 7, 2022, with various parties, including the City of Ottawa, wherein resource requests were discussed. 

They were asked to put together a list of options for Ministers. This included strategic enforcement, tow truck strategy, and hardening border crossings. She said they learned lessons from Toronto. 

After the meetings and emails about options, it was decided that an Incident Response Group meeting should be held. It is a decision-making body.

He said that the invocation would only last as long as necessary but not a minute longer. He said, however, they were concerned that if they revoked the Order, the protests might return. 

On cross-examination by Alan Honner for TDF, they confirmed that they were both in attendance at IRG meetings. They attended the Cabinet meeting on February 13, 2022 - the last one before the emergency declaration. They were shown meeting notes that claimed the Coutts border crossing was being cleared and that the Ambassador Bridge was expected to be opened. Port Eerie and Sarnia were opened; there were no major impacts in Toronto, Saskatchewan, or Montreal. IMVEs remain stable and unchanged; there was no foreign state interference; CSIS had no concerns at this time. The overall assessment was that the majority of events remained peaceful. They were asked if the document leaves out anything important: Ms. Bogden was concerned about keeping border crossings open. She admitted that the truck the government called “military-style” was just painted in camouflage. 

On cross-examination by the lawyer for the convoy organizers, they were asked if a “threat to the security of Canada” has the same meaning as it does in CSIS Act. Ms. Bogden declined to answer. She said she doesn't “feel expert” enough to answer. She declined to answer the question about whether, to invoke the Emergencies Act, certain legal requirements need to be met. 

On cross-examination by the government of Saskatchewan, Ms. Bogden was first asked about the IRG meeting. On the morning of February 9, 2022, at a meeting, she agreed that the invocation of the Emergencies Act was an option discussed. She agreed that they were tabled again at a meeting on February 10, 2022. She stated that she became aware of the Act being canvassed as a potential option on or around February 9, 2022.

The lawyer for the government of Canada showed the panel notes from an IRG meeting: it indicated that Ottawa had not been cleared. They said there was a fear that protesters would return to the Windsor site even though it had been cleared. They said events had not subsided by the briefing on February 13, 2022. They said, as of February 14, 2022, the situation was unpredictable and “concerning.” Mr. Hutchinson said that a “momentary pause” was not the same as an end to a protest: it was still a national crisis. He said there was still an “economic threat,” which he understood to be a threat to property. 

Ms. Bogden agreed that, after invocation and enforcement measures, protests were not calming. She said they had to be ready for the possibility that the situation would escalate or deteriorate. She was shown the assessment given by the NSIA on February 12, 2022, referencing “new and different situations that have gotten worse.” 

The commission then heard from another panel of witnesses: Janice Charette and Nathalie Drouin - respectively, the Clerk and Deputy Clerk of the Privy Council. The Clerk advises and briefs the Prime Minister, sets the agenda and performs a secretarial task for meetings. The deputy clerk supports the clerk. 

They did not expect the convoy to stay, and the government was just recovering from pandemic-related problems. They said the IRG could, for example, deploy or seek resources but did not have the power to invoke the Emergencies Act: only the Governor in Council (Prime Minister and Cabinet) could do that.

The government considered invoking the Emergencies Act during the COVID-19 pandemic but decided against it. They did study the issue during this time, however. Ms. Drouin said after the DMOC of February 9, 2022, they were starting to look at the declaration of a public order emergency; they considered whether the threshold was met. 

They were watching the enforcement at Windsor and elsewhere, but they were getting ready for the IRG meeting on February 13, 2022, in the afternoon. Ottawa was still the site of an illegal protest. They considered the protest to be an illegal blockade and protest. They said it took “days” for Windsor to open, and they were at the end of the third weekend, so the situation comprised “a serious set of circumstances.” The Prime Minister was convening the Cabinet on a secure call about the overall response: the consideration was made regarding the invocation of the Emergencies Act

They were asked about the information before the IRG and Cabinet. There was a briefing note that said, “Lucki did not get the Prime Minister briefed on the plan.” She said at 10 am on February 13, 2022, no decision was made regarding invocation. She said Cabinet was not provided with detailed knowledge of the plan. They were shown Commissioner Lucki’s note that all available tools were not yet used. The clerk said Cabinet was briefed that not all tools were deployed, including tools available to the RCMP. She was asked if Cabinet was aware that CSIS had found that there was no s.2 security threat: she said Cabinet was aware. But she said there was no CSIS investigation of the protest: there was no project by CSIS to collect intelligence on the protest. She also confirmed that Cabinet was told that CSIS said a declaration could increase the risk of violence.

She said a decision was made on February 13, 2022, to convene a First Ministers’ meeting the next morning: the content of the meeting was not known at that time. They watched the events at Coutts and the size of the firearm cache: it was new and relevant information about the risk of serious violence. The Prime Minister then made a public announcement in the afternoon that they would invoke the Emergencies Act. The clerk said the public service shifted to accommodate the invocation. 

Following the First Ministers' meeting, the Clerk advised that it is now time to declare a public order emergency. They were shown a briefing memo for the declaration of the public order emergency. 

She was asked about when she considered the protest to be illegal. She said she was not a lawyer but said large trucks were parked outside her office on Wellington Street for long periods of time. By February 14, 2022, there was a point at which the protracted parking of those trucks represented illegal activity. She admitted that not everyone there was involved in illegal activity. She said it felt like an “occupation.” 

The memo was her final advice to the Prime Minister. The clerk said regarding the additional threat assessment sought by NSIA Jody Thomas on February 13, 2022, there was no additional threat assessment provided to the Prime Minister under separate cover. 

The clerk said the provinces of Ontario, BC and Newfoundland & Labrador expressed support. The province of Quebec and the prairies reacted negatively. Some provinces had concerns that the invocation may inflame the situation. 

The clerk said she received a range of advice and consultation: she said, therefore, that the requirement for consultation under the Emergencies Act was met. She said, in her opinion, the quantity of weapons and ammunition was more than she expected - which indicated a seriousness and scale that was beyond her prior expectations. She said that they knew and suspected that there was some degree of coordination between cells of protesters, but it was not homogeneous: they saw connections between individuals. She said there was another element that wanted to overthrow the government or reject public health measures, and they “had to take that seriously.” 

The memo quotes the threshold and test under the Emergencies Act, s.17, and the CSIS Act, s.2. The memo said that the 2 requirements under the Emergencies Act have been met. They said it fits within the statutory parameters. They acknowledged that this conclusion may be vulnerable to challenge. The clerk said, in her view, that it met the test. 

She said that her view was, whether there were authorities that had not been used, there was an urgent, critical situation, and a risk of serious violence and economic jeopardy: taken together, this met the test. She said there may have been individual agencies that could have dealt with it, or specific threats that could have dealt with it, but taken as a whole, she said the test was met. 

She was asked if there was a finding of no s.2 CSIS threat and how she could find a public order emergency. She responded that she interpreted s.2 as referencing the test to launch an investigation: a decision taken under the Emergencies Act is different. She said there was a threat of a lone actor and online hate speech. She said risks were increasing over time. They sought to characterize the entire convoy as a threat - rather than specific individuals. 

They said there was no specific event, actor or site of serious violence, but there was a series of indicators of violence and an escalation that the clerk said met the test. She said there was a different decision-maker than CSIS for the declaration of an emergency. She believes that because CSIS is not the decision-maker for the declaration, Cabinet can reasonably arrive at a different determination of whether there is a “threat to the security of Canada.”

She said the s.58 explanation was a culmination of all factors, including economic interests. The deputy clerk said that the economic stress suffered by people was “violent.” The clerk said there was a legal threshold, but there was a policy factor: trust in institutions was being lost, and people might take matters into their own hands. The deputy clerk said trust and confidence in institutions was one of the criteria they considered. 

They were cross-examined by counsel for the convoy organizers. The deputy clerk is a prominent, qualified lawyer and answers to the Attorney General and the Prime Minister. Her duties include giving legal advice and developing legislation. She was asked about the delimiting concept of “means.” She said that when the legal provision uses “means,” it is exhaustive and limiting. She agreed that the objective of drafting is to carry out the intent of Parliament. She agreed that “threat to the security of Canada” has the meaning under s.2 in the CSIS Act. She said, to her understanding, the trigger under s.2 CSIS and under s.17 of the Emergencies Act are different. She said it was her understanding that the Emergencies Act was crafted with limits. She agreed that, for an emergency to be declared, there must be reasonable grounds for a security threat. She disagreed that they did not have reasonable grounds.

She was taken to s.2(c) of the CSIS Act: she said that was the main ground that they used. She was asked to summarize the threats or acts of serious violence. She pointed out that some IMVE were present, some ex-police, ex-military; there was the presence of firearms, threats to the economy, impact on trade, and disrupted ports of entry. 

She was told that CSIS advised that they had no concerns with IMVEs in Ottawa. She said that she heard that there were some IMVEs and that CSIS did not investigate the convoy “as a whole.” She conceded that CSIS determined there was not enough information to open an investigation for IMVEs. She said a movement can represent a threat without having individuals in it that meet the CSIS threshold. She was asked about indications of violence at Windsor but insisted that it would be a mistake to only look at individual violence. 

The clerk said that it was her assessment that the provinces could not deal with the situation on their own. She said that under the Emergencies Act, the government was not required to obtain the agreement of the provinces or even of the majority of provinces. 

They were shown the document wherein the CSIS Director expressed his view that there was no s.2 CSIS Act threat as defined by CSIS mandate. He mentioned this at the IRG meeting on February 13, 2022, and he provided his threat assessment to the Cabinet. They were asked if CSIS’s view was shared with the Cabinet. The clerk said the CSIS director did not speak at the Cabinet meeting. The deputy clerk said she did not know if the full view was shared. She said the Prime Minister was aware of it. She said they discussed the nature of the threat environment and the legal threshold. They cannot confirm if the Director’s views were shared with the full Cabinet. They were aware of the Director’s view but nonetheless found that a threat existed. They said the NSIA was one of the advisors but not the only one. They were asked if it was not the case that the view of CSIS should be at the core of a reasonable analysis. They referred to their anecdotal evidence of other threats apart from CSIS. 

Alan Honner cross-examined the witnesses. The witnesses confirmed that the “family violence” they mentioned as a justification for the declaration would not trigger a s.2 CSIS threat: there must be threats to the security of Canada, and these must be national in nature. She was asked about the 3 IMVE groups identified by the RCMP: she said there were more but when asked to identify them said, “she did not turn her mind to it.” She was told that there were IMVE extremists, but she could not provide specific identification of them. She agreed that on February 14, 2022, she said there was no significant evidence of extremist activity in her memo to the Prime Minister. 

On cross-examination by counsel for CCLA, they were asked about the resource capacity and legislative tools available to authorities. The clerk was asked about her understanding of “violence.” She said violence could include “your ability to go about your life, your ability to call 911, a threat to your job, an ability to get your medications.” She said violence under s.2 was “open to interpretation.” She said her belief was that it was met. She said her understanding of “violence” included psychological and economic violence. She said she would consider hateful flags to be violence towards certain groups. She was asked if there was consideration that swarms of maskless people entering commercial spaces might constitute violence: she said public unrest like that would be part of that broad risk assessment.

They understood that Windsor was cleared by February 13, 2022, but the clerk said Ministers were focused on keeping the bridge open. 

The lawyer for the province of Alberta cross-examined the witnesses and asked if they learned that the protesters at Coutts had expressed a desire to leave the protest site on February 13, 2022. The deputy clerk said she was not aware of that. She was asked if invoking the emergency was the only option given to the Prime Minister: she said that was the option made in the memo to the Cabinet. 

Commissioner Rouleau asked if they considered a debate in Parliament. They said there was a debate on February 7, 2022, on the situation overall but not on the Emergencies Act. They said there was not a lot of time and that information about the invocation would leak. They followed the Parliamentary process. They say the freezing of finances was an incentive to “get people to go home.” 

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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