Public Order highlights: Thursday, November 24

TDF’s Legal Team

Written by
November 24, 2022

The commission heard from Deputy Prime Minister Chrystia Freeland in the morning. She is the Deputy Prime Minister and Minister of Finance.

She said the government was concerned about supply chains and their impact on inflation in addition to the American EV incentive plan. She said FINTRAC (the Financial Transactions and Reports Analysis Centre of Canada) is not an enforcement agency: it did not have authority over a “21st Century” economy. She said it could not deal with crowd-funding platforms. She said the government did not have time to legislate changes to FINTRAC.

She said Canada was vulnerable to long-term harm to its trading relationship with the US. She claimed that the jobs of auto workers were on the line. She said she meets with Canadian bank officials at least once every 6 months, but during the protests, she set up a zoom call on a Sunday with the bank CEOs: she wanted to hear from the banks about their worries. She wanted to know if they shared her level of concern. She heard anecdotes about the hesitancy of people to invest in Canada, given the blockades. She said the business investment is a weakness for Canada so this was concerning. The banks were worried about becoming a political weapon of the government.

She said she would never negotiate with people who hold democracy hostage: she said that comment was made in the context of a suggestion to change vaccine policy. She said she heard from a Bloomberg report, repeated on “Bay Street” and “Wall Street,” that the blockades were causing a serious economic impact. She said this constituted an economic threat because US and foreign investors would “write off” Canada.

She said that the government sometimes relied on open-source information rather than official sources with regard to the crowdfunding campaign. She was shown a briefing note that indicated that the government believed and claimed at one point that there was significant foreign funding: however, this claim was removed from the s.58 explanation. She said she was not involved in this s.58 explanation. She was asked about freezing a bank account that may affect family members. She said it was important that the protest had a peaceful end. She said she considered economic incentives to end the process. She said there were 280 accounts frozen: she remembers that around 240 accounts amounted to only 58 people. She said she regrets that this happened to people, but she weighed that against the hundreds of thousands of jobs she protected. She said the intent was not to create incentives on people who were not engaging in illegal activity: she accepts that this may have happened, however. 

She was asked if she was concerned that small donors may be captured by the Emergency Measures Order (EMO). She said she did not want to claim that small donors would not be captured since, in the event that small donors were captured, she did not want to be seen as a liar. She said she was hearing about the safety of bank employees dealing with this. She said, by and large, the measures worked. 

She was asked, given other economic measures in place, including the court injunction with respect to crowdfunding, why the government needed the EMO. She was asked about the insurance measures invalidating vehicle insurance. She said they needed to look at all potential tools: FINTRAC now has the authority to do this. She said these measures were designed to motivate people to leave. She believed that economic security is crucial for Canada; a lack of economic security can undermine national security. She said at the end of January 2022, the RCMP judged that she should have personal security. She remembers walking past a truck that honked and saw a woman make an obscene gesture: she thought this type of scenario might erupt into physical harm. She somehow tied this to economic security. 

On cross-examination by the lawyer for the convoy organizers, she agreed that the vaccine mandate was to encourage Canadians to get vaccinated. She acknowledged that Canada created a vaccine compensation fund: but she was not sure if the first vaccine compensation fund was the first one created in Canada. She was asked if Health Canada advised her to enact a vaccine mandate: she said she was not an expert on health policy. 

She said she is not familiar with the convoy organizers. She was asked if Tamara Lich was a terrorist: she said it was not her job to determine whether someone is a terrorist. She was shown a note she made to “Dave,” saying “she needed to designate the group as terrorists.” She denied that the note was from a meeting with CSIS Director Dave Vigneault. 

She was asked whether putting an LGBT flag or flowers on a Terry Fox statue was “desecration,” and she refused to answer. 

She said she was concerned about violence at Coutts and Windsor. She agreed that a single weapon investigation would not constitute a national emergency. She was asked about the existence of the nazi flag but did not get a chance to answer due to objections from counsel. 

She said the blockade of the Ambassador bridge was a significant event because it caused harm to the Canadian economy. She agreed that the protests were depicting Canada as politically unstable. She said that she understood that the Emergencies Act should not be used to crush political dissent. She agreed that the Act should not be used against protesters who disagree with government policies. She was asked if civil disobedience was a part of the protest. She acknowledged that some civil disobedience causes economic harm - for example, by G20 or indigenous protesters. She was given the example of Solidarity in Poland, where civil disobedience of blocking ports was applauded by western governments. She said the main difference was that the protest was against a government that was illegitimate. She said in Canada, it was a democratic government acting on policies. She was asked if the right to protest was trumped by economic security. She said economic security was being undermined, handing arguments to trade isolationists.  She said the right to protest is important and needs to be respected. 

During cross-examination by counsel for the CCF, the deputy minister was asked about the economic, financial and reputational damage to Canada. She was asked how this was linked to national security. She said she is aware that there must be a s.2 security threat finding. She was taken to the definition of s.2 security threat. She was asked to agree if her “economic, financial and reputational” threats fell within the definition of s.2. She said they had the authority to act as they did. She was pressed to say whether those threats fell within s.2(c). She said she relied on expert advice. She said she thought there was a risk of protesters and counter-protesters. She referenced RCMP advice of “serious weapons” at Coutts in the IRG meeting of February 12, 2022. She had difficulty linking economic harm with s.2(c). 

During cross-examination by Alan Honner, counsel for TDF, she was taken to a letter from the Canadian Truck Alliance, where CTA complained that the trucking vaccine exemption was not being renewed for truckers. It complained of the negative effects of the vaccine mandates on trucking employment. She said she knew that some people asserted that it might have this effect on employment. She was shown another letter from CTA estimating that 20% of truck drivers may remain unvaccinated. She was asked if this could affect the economy. She disagreed that the vaccine mandates negatively affected the economy. She disagreed that the government invoked the Emergencies Act due to pressure from the US government and despite the fact that the Ambassador Bridge and Coutts blockade had been cleared.

During cross-examination by counsel for the province of Alberta, she was asked whether it would have been better to allow police to use existing authorities rather than to freeze the bank accounts of Canadians without due process. She said she was concerned about violence toward the protesters and the children at the protests. She said it was impossible to avoid freezing joint accounts and claimed that it could have been avoided if the protesters left. 

On cross-examination by the Government of Canada, the deputy minister indicated that the US was worried about its reliance on parts from foreign countries, including Canada. She claimed that a CEO of a car company was asking about possible blockades in October 2022. She said the banks were asking the government to take more action on the economic management of the economy. 

Katie Telford, Brian Clow and John Brodhead gave evidence in the afternoon. They all work in the Prime Minister’s Office. They said that early on, there was a sense of unease at the political level. They said they saw social media references to January 6, 2022. On February 3, 2022, the second weekend was approaching, and law enforcement had not handled the provinces. 

During a February 6, 2022, meeting, there was some discussion about whether this was a provincial or federal matter. Ms. Telford said that the blockade is a topic that still comes up. Mr. Clow said some of the US commentaries were a direct encouragement to unlawful activity in Canada. There was some discussion about whether the Prime Minister should engage with the protesters on February 7, 2022. They claimed that there was a serious risk of violence in the demonstrations. Mr. Clow said the decision to invoke the Act was made on the morning of February 14, 2022, after the morning meeting. He said the Parliamentary process was built into the Act. He said the decision on revocation was made by asking the question, “is the Act still needed.” They said they believed they had the votes in the Senate to support the invocation. 

During cross-examination by counsel for the province of Alberta, they were asked if the PMO was responsible for providing the information regarding the status of clearing of the Coutts border or the private provision of tow trucks. They responded that it was the PCO (Privy Council’s Office) that had that responsibility. They confirmed that either the NSIA or the PCO would provide the status of the Ambassador bridge or the Coutts border to the Prime Minister. 

During cross-examination by counsel for the convoy organizers, the panel was shown a note wherein it was alleged that Minister Blair’s strategy was to invoke the Emergencies Act. Ms. Telford denied knowledge of the note or the meeting. 

During cross-examination by counsel for the CCLA, they were asked about a text alleging that jerry cans carrying fuel were allowed by police. They were told that some jerry cans were filled with water rather than the fuel. They said they heard about that. They were asked if the content of social media was perhaps not matching the briefings they received from police. Mr. Clow said there were discussions with regard to communicating with the protesters, but he said they “hit a wall” due to the demands of the protesters to drop the vaccine mandates. There was a discussion about the Emergencies Act and Quebec: they denied that it would not apply to Quebec but admitted that the Premier of Quebec did not want it.

On cross-examination by counsel for TDF, Alan Honner, the panel was shown a letter from Premier Kenny and 16 US Governors, dated February 16, 2022, complaining about the vaccine mandate and its effects on supply chains. They said they did not know if the letter got to the Prime Minister. They did not know whether a comment by a US congressman urging the US and Canada to cooperate in lifting the vaccine travel mandate. They were shown an email from staffers at Global Affairs noting that some US political reaction to the protest response was negative. They did not know if this email was brought to the attention of the Prime Minister. 

On cross-examination by counsel for the CCF, Ms. Telford said the PMO has some input into the agenda of Cabinet meetings. The Prime Minister has the final say. They said the Clerk of the Privy Council decides on the non-Cabinet officials attending, but the Prime Minister has the final say. They said the PMO has some input into the documents provided on the documents at Cabinet meetings, but the Prime Minister has the final say. For the February 13, 2022, meeting with the full Cabinet, the CPC set the agenda. They were not sure if the Prime Minister had any input into the information provided, document or agenda. They were asked if the Cabinet was if the CSIS threat assessment provided: they did not know. They were asked if an alternative threat assessment was provided to Cabinet: they did not know. They referred to the deputy clerk’s evidence on this. They were asked if a documentary legal opinion about the definition of “s.2 security threat” was provided: they were not sure if a document was provided, but there was some discussion about it. They were asked if the POU document was shared with the full February 13, 2022, Cabinet meeting: they said they did not recognize the POU document but said Cabinet was aware of the “terrifying” situation in Ottawa. 

On cross-examination by counsel for the government of Canada, they claimed that disinformation and misinformation were being spread about the government. They denied that the invocation of the emergency was politically motivated. 

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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