Public Order highlights: Tuesday, November 22

TDF’s Legal Team

Written by
November 22, 2022

The commission heard testimony today from Minister Marco Mendicino, Minister of Public Safety. He was appointed Minister of Public Safety in October 2021.

He was advised by the RCMP Commissioner of the protest in January 2022. The Minister thought there might be a possibility that the convoy would stay longer than a weekend. He said the potential for violence was present at the outset and cited Pat King’s comments regarding “bullets.”  He claimed that some protesters were prepared to become violent. He said he was concerned that the Prime Minister could be targeted and claimed that the security detail around various public officials changed because of threats. 

He said by the weekend, it was impossible to enforce the law on Wellington Street. He said in invoking the Emergencies Act, one of his main concerns was his ability to enforce the law in close proximity to major infrastructures, such as Parliament. He said there was a group of lawful protests and others who were not lawful. He said there was a group at the Coventry location of ex-military and ex-police: he said he was concerned that this group might be able to run counter-operations against police. He said he was concerned that, nationally, police resources may be stretched. He believed the protest was a national event that threatened key infrastructure and that police resources were overwhelmed. He claimed that there were threats to police as they were attempting to do their jobs. He claimed “hundreds” of criminal charges were laid, including an assault on a peace officer. He claimed a “camouflage” vehicle attempted to run a blockade and that this constituted a “threat to the security of Canada.”

He said the protest was national in scope, was entrenched, it was political and expressed, at times, in violent terms. It damaged our international reputation and economy. He said despite the availability of the Highway Traffic Act, Criminal Code and tow trucks, we could not use them. 

He was shown a text to the Prime Minister’s Chief of Staff, Katie Telford, discussing the issue of an engagement proposal between the government and the protesters. It was raised by deputy minister Stewart. He said he wanted to have input into that engagement proposal. He wanted to ensure if they did participate, they would be safe and that there existed a cohesive set of protesters with which to negotiate.

He referenced the weapons seized at Coutts and his understanding of the ideological motivation and potential for violence by protesters. He said he understood that the RCMP Commissioner was in a heightened state of alert due to these issues. 

He was asked about Commissioner Lucki’s comment that “tools were still available” prior to the invocation of the Emergencies Act. He said his position would not have changed because he did not know the reasons for her view. When a plan was mentioned, there were no details. He also referenced a call earlier on February 13, 2022: he said there was an escalation of violence and gun violence that could result in harm to Canadians. He said he heard a report that guns had been brought into the parliamentary district and a report that someone was arrested with a firearm in Ottawa. He was worried that if the Coutts, Alberta operation did not go flawlessly, it could lead to other areas. He mentioned his fears of a hardened cell, guns and ideological symbolism: if the operation to arrest individuals did not go peacefully, it may create a chain reaction across the country. He said, “lives literally hung in the balance” and that “for me, this represented far and away the most serious and urgent moment in the blockade to this point in time."

He said it was “utter and total mayhem.” He said they considered that the invocation might lead to more violence but that if they took no steps, it could also lead to more violence. He was shown a note where he said they took the decision to invoke the Emergencies Act on the advice from law enforcement about tools they needed. He understood that existing authorities were not effective - and that was the advice from law enforcement: gaps in tools. 

He was asked about the CSIS Act s.2 security threat and the fact that CSIS did not find a s.2 security threat. He said CSIS was assessing through its mandate. He said that it was very different: they had to look at the broader scope and context of the Emergencies Act. He said in his judgment, he looked at both. He said the Emergencies Act is not a perfect instrument, but “it worked.” 

The lawyer for the convoy organizers sought to obtain a ruling on motions regarding the late production by the Government of Canada and over-redaction of government documents. The lawyer noted that the Government of Canada had 9 months to prepare and produce documents, and it produced relevant documents in bulk as the witness was giving testimony, thus introducing unfairness in the commission process. After an exchange with Commissioner Rouleau, the lawyer for the convoy organizers was told to leave the hearing, and a substitute lawyer made submissions. The commissioner said that a ruling on the motions would be made after the lunch break. The commission then proceeded with cross-examination by other parties. 

Minister Mendicino said that blockades raised the issue of whether negotiation was possible. He said the possibility of negotiations was discussed with Cabinet. He was aware that the mayor of Ottawa was successful in moving some vehicles away from residential areas. But he was concerned that these vehicles would return to the Parliamentary precinct, which was growing the scale of the occupation. 

Minister Mendicino claimed that he heard of threats against citizens and was concerned about threats to government workers. He said Parliament was shut down for a day. He claimed that police were overwhelmed and found it difficult to investigate. He said there were hundreds of criminal charges laid. He heard reports of ex-military and ex-police in the protest. 

On cross-examination by the lawyer for the government of Alberta, Minister Mendicino was pointed to calls and emails with Alberta officials: he did not raise the issue of the Emergencies Act at this time.

On cross-examination by the lawyer for the CCF, Minister Mendicino said that he met with RCMP Commissioner Lucki daily so that he could understand law enforcement assessment and requirements. He was shown a force request document from the OPS to the OPP and RCMP. There was an agreement to provide up to 250 RCMP officers. He said that may have been inclusive of RCMP officers already provided for protection. He is familiar with the figure of 150 RCMP officers actually provided. He agreed that the 167 or so provided is lower than the 250 requested.  He conceded that an RCMP officer on Wellington Street could make an arrest under their standard powers.

On cross-examination by the lawyer for the JCCF, he was asked about Premier Kenney’s comment that the trucker vaccine mandate was “dumb political theatre” and calling them nazis “didn’t help.” He said the mandate was based on the best science available. He further claimed that conversations about vaccine safety were informed by the best science available. He was asked if conducting a review of vaccine safety was ever discussed: he said that was in the purview of the Minister of Health. 

On cross-examination by the lawyer for the CCLA, he conceded that there were many protesters there to express legitimate views. He was shown language under the Order prohibiting public assembly and was asked if that would prohibit a labour strike. He said that would have to be read in conjunction with the larger Emergencies Act and the notion of “serious violence.”  He was asked about the clearing of the Coutts border: he said he was concerned about a “whack a mole” effect. He agreed that the arrests and clearing of Coutts did not result in an escalation. 

On cross-examination by the lawyer for the convoy organizers, Minister Mendicino was asked about his experience as a lawyer. He said he was familiar with national security laws, including knowledge of the CSIS Act and the Canada Evidence Act. He was asked about the individual carrying a nazi flag. The Minister denied knowing of any connection between the government and anyone carrying the flag or taking a picture of the individual carrying the flag. 

He was asked if any law enforcement advised him that the threshold to invoke the Emergencies Act had been met. He said that he was so advised by CSIS in the “broader context of law.”  He said professionals in the security space did advise him. 

He agreed that the federal government was never advised that demonstrations in Saskatchewan could not be dealt with by existing legislative authorities. 

On cross-examination by the government of Canada, he was taken to a CSIS Act briefing that outlined alleged conspiracy theories held by people. He said he was familiar with them. He said he was aware of ideologically extreme rhetoric and demonstrations outside of the residences of officials. He claimed that violent rhetoric can lead to violence. He was shown a tweet suggesting that Parliament Hill should be opened up: he claimed that this could spill over into serious violence. He said the most important call he got that day was from RCMP Commissioner Lucki about the Coutts blockade.

At the end of his testimony, Minister Mendicino was shown an unredacted note made before the Emergencies Act speech of February 14, 2022, where Jody Thomas, National Security and Intelligence Advisor, said the test for a s.2 security threat under the CSIS Act had not been met. Minister Mendicino said he was aware of that view. 

Dominic LeBlanc was the next witness. He is the Minister of Intergovernmental Affairs, Infrastructure and Communities. He testified that there was confusion about what role the federal government had in relation to the protest in Ottawa. He said that he and other federal ministers were engaging with their provincial counterparts in exploring available options. On February 10, 2022, Mr. LeBlanc had a call with Doug Ford following an incident response team meeting. The conversation was about provincial authorities that had not yet been brought to bear for the protests in Windsor and Ottawa. Mr. Ford invoked a provincial emergency the following day. Mr. LeBlanc stated that Mr. Ford was very concerned about the economic and reputational damage to Ontario along with public safety. He said Mr. Ford was willing to do whatever needed to be done in order to resolve the protests.

Shortly after this call, Mr. LeBlanc reported it to the PMO. He agreed that Mr. Ford and PMO were in line with their approach. 

He said the blockade at the Ambassador bridge was doing reputational and economic damage to the country. He said he was having IRG meetings daily, but the situation was becoming more alarming with potential pop-up demonstrations. They were concerned about the ferry blockades in Nova Scotia or Newfoundland. He agreed that there was no threat to the supply chain at that time, but there was potential for that to occur.  He conceded that things were under control in B.C.

The government did not want a long and protracted conversation about the potential invocation of the Emergencies Act. He said he worried about the public misunderstanding about the invocation of the Emergencies Act especially concerning police forces and jurisdiction. He understood that the Premier of Quebec did not support the invocation. They wanted to cut off the flow of money in a way that would deter other protesters: the financial penalties would be national in scope so that protests could not evade them by leaving the province. He agreed that some Premiers expressed concerns that the invocation might inflame the situation, and some noted that blockades had been cleared without the invocation. 

On cross-examination by the lawyer for the CCF, he was asked if he provided any type of document or explanation for the basis for his conclusion of a s.2 security threat. He noted that there was an ongoing exchange of information from law enforcement agencies but did not otherwise justify his conclusion. He said the premiers were also being briefed by law enforcement authorities in their own provinces. He was asked if the NSIA shared her view that there was a national security threat with the first ministers at their FMM on February 14, 2022. He did not directly answer. He was asked if a threat assessment was presented to the premiers at the FMM: he said the premiers would have been advised by their own law enforcement officials.

He claimed that the revocation of the vaccine passport by the premier of Alberta did not cause the clearing of the Coutts border crossing. He claimed that the Emergencies Act invocation was a deterrent with respect to the Windsor bridge blockade. He said that, once it was dispersed, it was not clear where the protesters would appear next. He claimed the police needed to remain at the Ambassador Bridge. He said there was a risk of a recurrence. 

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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