Public Order highlights: Monday, November 21

TDF’s Legal Team

Written by
November 21, 2022

The final week of the commission began with the testimony of David Vigneault, CSIS Director, Michelle Tessier, CSIS deputy director of operations, and Marie-Hélène Chayer, the executive director of its Integrated Terrorism Assessment Centre (ITAC).

The commission heard that CSIS has a core mandate to investigate threats to the security of Canada and advise the government of those threats. The ITAC recommends the threat level by consulting with security partners and looking at threat actors. The Director reviews the material from ITAC and satisfies himself with the threat recommendation. Ms. Tessier said CSIS does not investigate ideas: CSIS investigates the acts and the motivation to act. They use “reasonable grounds to suspect” to decide whether to investigate. They do not investigate issues or events: they investigate whether there may be threats to the security of Canada arising from the issue or event. The criminal activity under s.2(c) of the CSIS Act also has to relate to the security of Canada and involve a religious, political or ideological objective. Once the threshold is reached, they can apply to court for a warrant.

CSIS has adopted the IMVE concept as a policy framework. Ms. Tessier said that it is difficult to determine when IMVE activity meets the threshold. There must exist the threat of serious violence, willingness to kill or inspire others to kill, and a desire to effect societal change. The threat to destroy critical infrastructure can qualify only if it could endanger life: e.g. the destruction of a statue which does not involve the potential for loss of life would not qualify. With respect to content posted online, simply reading it would not qualify for this criteria.

For the societal change criterion, protesting alone is insufficient. Ms. Tessier said that “anti-public health” views are not things CSIS would investigate unless there is serious violence. She said there is a rise in anti-authoritarian views and threats against public officials. 

She said CSIS does not monitor all social media. They investigate threats when they see a move from the digital space to the physical space. Ms. Chayer said that CSIS looks at the intent of the message and opportunities.

She said misinformation is erroneous information that is spread online without knowing it was erroneous; disinformation is when erroneous information is spread intentionally. She said CSIS had identified pre-existing IMVE targets in the protest. Director Vigneault said CSIS was not investigating the convoy, lawful dissent or anti-health measures: they investigated pre-existing targets or those who could be further radicalized. 

On January 27, 2022, CSIS prepared a memo that noted the existence of IMVE in the convoy, but CSIS was not aware of tangible plots or plans of serious violence. Director Vigneault said that there may be a threat of a lone wolf due to radicalization.

On February 2, 2022, a CSIS briefing noted that there was no s.2 threat of serious violence. The hateful flags seen did belong to individuals but were not associated with the larger group. 

Director Vigneault confirmed that at no point did CSIS assess the convoy as constituting a s.2 security threat. He also confirmed that a draft CSIS threat assessment stating this finding was discussed at the February 13, 2022, IRG meeting. He confirmed that he expressed his view to the extent he was able at IRG meetings. Ms. Tessier said that this finding was made by multiple analysts. Director Vigneault said he had an understanding that the Emergencies Act definition was broader than the CSIS Act definition. He informed himself of this and was assured that there was a broader definition. He then said it was required to invoke the Emergencies Act. He warned that the emergency invocation risked inflaming the situation. 

On cross-examination, Dir. Vigneault conceded that it’s a possibility that CSIS may miss something important. He said that CSIS may also miss the importance of something. 

CSIS confirmed that there were some individuals they were investigating prior to the protest; some of these individuals then attended the protest. They said there were increasing threats against elected officials. Ms. Tessier said that CSIS developed criteria under s.2 to determine if there was a s.2 threat: she said that some criminal threats do not qualify. Dir. Vigneault said if they saw an individual threat, they may flag that to the police. If someone is threatening a public official to influence public policy, it does not necessarily fall under s.2 as a security threat: it is assessed on a case-by-case basis. 

They confirmed that there was no espionage, sabotage or foreign interference. CSIS investigated but did not see foreign interference or funding that met the s.2 threat. They said s.2(c) was not met. They did not investigate under s.2(d). Some individuals met the s.2(c) threshold, but the event itself did not meet s.2(c). He still advised the Prime Minister to invoke the CSIS Act: he did so because of additional information he received as a national security adviser. He said his broader interpretation of “security threat” was due to legal advice he received.

When he was asked about the source of his interpretation of s.2, he said it was from the Department of Justice. He said that based on this broader interpretation, he believed the Emergencies Act should be invoked. He was asked why, in his interview with commission counsel in August 2022, he did not note that he told the Prime Minister to invoke the Emergencies Act: he said he was not asked at that time, and he was not certain he could disclose that information due to Cabinet confidence. He said the CSIS Act was enacted in 1984 and that the world has evolved: they should look at modernizing the Act. Ms. Tessier agreed that without the willingness to kill or engage in serious violence, all one has is a passionate desire to make a change. 

On cross-examination by the lawyer for the convoy organizer, Director Vigneault was asked about leaked documents. He said he always has concerns when CSIS documents are leaked. He said he does not know the source of the leaks.  He was shown emails from government officials around late January 2022, discussing threats of violence and asked if he was concerned that these officials mentioned violence from the convoy when his own agency had determined that there was no threat of violence: he could not answer. 

Director Vigneault acknowledged that the CSIS definition of IMVE does not mirror the criminal code definition of terrorism. He conceded that IMVE investigations comprised over 50% of CSIS resources at present. 

Director Vigneault said he attended the Cabinet meeting on February 13, 2022. He said it was the intent that the draft threat assessment is made available then, though he was not sure if it was actually made available. He said that every member of Cabinet would be entitled to review it. He does not remember if the document was discussed specifically.

The panel was shown pictures of hateful symbols appearing at the convoy, all of which seem to have been first taken by individuals associated with the government or government-friendly research firms. No explanation was given for these coincidences. 

He was told that the Clerk of the Privy Council said at the commission that Cabinet was aware that CSIS had not assessed a s.2 threat sufficient to trigger its powers under the CSIS Act: Cabinet was aware of this assessment. He does not recall if CSIS was asked to prepare another threat assessment on February 14, 2022.

On cross-examination by the government of Canada, Director Vigneault said that he formed his opinion given the existence of IMVE, the unpredictable nature of the event, its size and scope continued to vary, spontaneous events and blockades, the fact that law enforcement resources were being diverted deliberately, information from CBSA and Finance about the impact of the blockades on the country, and the evolving operational plan that at that point had not been put in place. He said, based on his experience, that he believed that the regular tools were not enough to address the situation. He was asked if the Governor in Council had the same information that he had: he said he did not have access to the full documents that were available to the Governor in Council, but he said he had a very good understanding - though not perfect information. 

He agreed that solicitor-client privilege would cover the legal advice given to the government with respect to the interpretation of “security threat” under the Emergencies Act. He said CSIS had some concerns that some individuals might use the convoy protest as a recruitment event. He confirmed that he advised the Prime Minister that it was necessary to invoke the Emergencies Act, despite the fact that CSIS did not find that there was a s.2 threat to the security of Canada.

Bill Blair was the final witness of the day. Mr. Blair, the previous Minister of Public Safety, spoke about the role he played during the G20 protests in 2010. He was the chief of police in Toronto at the time and responsible for policing-related matters occurring in Toronto. He was also involved in the Tamil protests in Toronto. Mr. Blair stated that about 5000 protesters had blocked the highway on Mother’s Day in 2009. He spoke about a measured approach to engaging with the protesters, including negotiation. 

He was concerned that an inflammatory response from government officials could incite a response from protesters: he did not want to use heated rhetoric. He thinks if language is intemperate, then people are fearful, and this endangers the public. He understood the value of bringing people together to share different perspectives. 

He said that politicians should not direct the police. He believed that the policing response in Ottawa was initially incorrect i.e. allowing trucks to park downtown. He said once this happened, they were dealing with a very complicated issue. He clarified that his comments simply meant that ‘we needed police to do the job that only they can do.’

When asked about his comment, “the police are finally doing their job in Windsor.” He said that the blockade in Windsor was hugely impactful and that he would not have made this statement to the police. He said he made this statement due to relief and that he was seized with a strong sense of urgency.

When asked about the Alberta Request for Resources, he said that he became aware of the request through Minister McIver, who was asking for CAF personnel. Ultimately, he was advised that this was not possible. He produced a response letter and further made an offer to assist in paying for tow trucks. He believed that this response was “weak” in that he did not believe that it was particularly helpful to Alberta.

He testified that he was not aware of RCMP Commissioner Lucki’s position that “all tools had not yet been exhausted” until after the Emergencies Act had been invoked. He said he believed that the Emergencies Act was a measure of last resort. He claims that he was witnessing significant disruption on critical supply lines and that it rose to a level of a national emergency. He added that he believed that there was strong evidence that there was a clear correlation between the protests, which needed to be resolved as a whole rather than playing “whack a mole.” He said when an artery into the country is rendered unusable - it is an attack on critical infrastructure.  He stated trucks “almost ceased to be trucks and were fortresses” during the blockades.

He testified that the response of the police in Ottawa restored his faith in his profession. That they carried out their duties in a measured and orderly manner and that he has never seen it done better. 

In cross-examination by counsel for Freedom Corp., he was shown an email dated January 27, 2022, which appeared to show his chief of staff forming a preemptive narrative for the protest and confirming the language to be used following the arrival of the convoy in Ottawa. Mr. Blair disagreed. Next, a February 4, 2022, meeting note was shown to Mr. Blair in which KT (presumably Katie Telford) references Mr. Blair’s comments about invoking the Emergencies Act. Mr. Blair stated that he had a discussion about various options, but the Emergencies Act was not being seriously considered. When asked about the Prime Minister’s speech on January 31, 2022, Mr. Blair stated that he did not remember what the Prime Minister said when he accused the protesters of threats, violence and hatred. When it was read to him, Mr. Blair stated that he agreed with the Prime Minister’s statements.

In an email dated February 7 2022, the Ottawa Mayor asked Mr. Blair to join in a negotiation with the protesters. In the email, Mr. Blair stated that “it is a bad mistake” as it is an “unlawful occupation.” He did not want to bring in a mediator. He stated that he agreed with his statements.

Mr. Blair stated that he was not in favour of the federal government entering into negotiations with the protesters and that he has never heard of political figures entering into negotiations with protesters.

When asked if, following the invocation of the Emergencies Act, he had heard that cabinet ministers had repeatedly stated that the threshold for the Emergencies Act had been met, Mr. Blair would not agree. When asked if police had ever informed him that the threshold for the Emergencies Act had been met: he said they had not.

During cross-examination by the lawyer for the OPP, he testified that he had no knowledge of potential tools that may have been available outside of the Emergencies Act. He did not think it was appropriate to ask the police about the tools they would require. In his capacity as a cabinet minister, he agreed that he has to receive advice from police services and CSIS for credible and reliable information. He said that he had not heard of the HENDON reports until after the protests had concluded. When asked if he was aware that the reports stated that the protest had the possibility of being lengthy in duration. His first briefing was on January 27, 2022, which was a full week following the production of the HENDON report. 

In cross-examination by the lawyer for the government of Alberta, Mr. Blair agreed that in an email dated February 9, 2022, he made reference to the fact that all provincial resources had not been exhausted. He stated that he was aware that RCMP had purchased tow equipment to deal with Coutts and that the protesters left prior to RCMP being able to use the towing equipment.

He stated in a transcript that he was prepared to invoke the Emergencies Act from the very first day. He stated that it was something he had examined throughout the pandemic and that it remained a consideration.

In cross-examination by counsel for the CCF, Mr. Blair conceded that OPS could have sought assistance from RCMP first.

During cross-examination by the lawyer for the JCCF, Minister Blair was asked about the s. 2 CSIS Act threat. He stated that the definition of violence and threat of violence obtained and that the threshold was different in the Emergencies Act than it is for CSIS to begin an investigation. When asked about foreign influence and espionage, Mr. Blair stated that he believed that there were concerns with foreign influence but not state-sanctioned influence. When asked if intimidation and fear constituted serious violence, Mr. Blair said that they were a “very real threat of danger”. He stated that the definition of s. 2 CSIS Act as provided is appropriate, and he believes was fulfilled.

During cross-examination by the lawyer for the CCLA, Mr. Blair was asked if he felt embarrassed about the international community’s reaction. Mr. Blair stated that he does not indulge in feelings of embarrassment. Immediately following this, CCLA counsel showed him a text message in which he stated being “embarrassed that the protest on Wellington Street is expanding” and “embarrassed for his former profession”. Mr. Blair said that he regretted these messages.

Mr. Blair was involved in a meeting regarding the cross-police services operational plan. It appeared as though this was an unexplored alternative to invoking the Emergencies Act. Mr. Blair stated that he was not aware of the particulars of the plan despite being advised of it. The execution of the plan had not been realized. 

On cross-examination by the lawyer for the Government of Canada, Minister Blair claimed that a period of lawlessness could lead to an unsafe situation. He said there appeared to be an intent to divide or stretch police resources. He said it's very important to have enough resources to create a lawful protest. He said the seizure of firearms at Coutts, Alberta was an indication of a serious escalation at that location. He said it was deeply concerning that embedded within were some people that had weapons. With respect to the stolen trailer of guns in Peterborough, he said that was also concerning. He said the rule of law is foundational to society. He said when people lose confidence in the rule of law, they lose confidence in policing and courts. He said he was not aware of deaths or serious bodily harm resulting from police operations. 

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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