Public Order highlights: Friday, November 25

TDF’s Legal Team

Written by
November 25, 2022

On the final day of the commission heard testimony from Prime Minister Trudeau. 

The Prime Minister claimed that, during the campaign, they started to see a certain level of aggressiveness and intensity of emotion surrounding the imposition of vaccine mandates. As the convoy began to arrive, they worried that it would be a different brand of event. 

He was asked about a transcript from a call where he stated that protesters would have “no choice” but to “incite.” Mr. Trudeau responded that he did not know what he was trying to say and that the transcript could have been inaccurate.

He was shown the transcript of a call with an MP, where she expressed her experience of animosity from protesters. He had a call with Candice Bergen, leader of the opposition. He said using protests to demand changes to public policy is worrisome. He then said it’s different when it's “massively disruptive.”

By the second week of the protest, around February 3, 2022, they hoped that there would be a dwindling of the crowds, but instead, they saw a surge. He said the citizens of Ottawa were frantic by this time. On a call with Mayor Watson, he expressed his frustration and said Doug Ford is “hiding” from his responsibilities. He said it was an unpleasant situation, and he was getting bad headlines. 

He had a call with Doug Ford where he said Premier Ford did not need more legal tools. (The call was introduced earlier in the commission by counsel for TDF, Alan Honner.) The Prime Minister said he was not attempting to direct the police. He said there was a sense that the police had lost control. He alleged that Ottawa 911 was overwhelmed by calls from the US. He claimed there was a significant amount of money flowing from the US to the protesters. He had a call with President Biden where the Prime Minister assured the President that things were under control.

They started having IRG meetings around this time. He considered the Emergencies Act since it enables the government to do things on a temporary basis.

He was asked about CSIS failing to find a s.2 security threat. He said the legislation as drafted in the 1980s, imported a definition from the CSIS Act, but he claimed those words were used by CSIS to determine if it was going to take action against an individual (eg: wiretap). He said the definition of the Emergencies Act is about the Governor In Council (Cabinet and Prime Minister) finding reasonable grounds for a s.2 finding that is sufficient to invoke the Emergencies Act: he said the context and purpose are different. He said the proofs and inputs are prescribed for CSIS, but the definitions are open from other government departments. He confirmed they were looking at s.2(c): the activities or threats of serious violence for ideological goals. He was focused on “was this bar hit: yes or no” for the purposes of invoking the Emergencies Act. He conceded that the words are the same for the party who is deciding whether a s.2 security threat exists: the question is “who is doing the interpreting and what inputs are being used.”  He agreed that he based his decision on inputs given by Ministers regarding threats of serious violence. He said the inputs included “the weaponization of vehicles,” “ramming at Coutts,” “trucks used as weapons,” “use of children as human shields deliberately,” “kids on Wellington street,” “presence of weapons at Coutts,” “weapons stolen at Peterborough,” “the fact that police trying to enforce laws were met with active resistance,” “promoting IMVE in the convoy that had a danger of triggering lone wolf actors,” and “counter-protest.” Every input they were getting at the IRG was that things were getting worse, not better, even though Coutts was being cleared. He also mentioned Fort Erie, Sarnia, New Brunswick, and Surrey: there was a sense that it was a broadly spreading thing. He said that, even though there was no serious violence, there was potential for serious violence: “we were seeing things escalate.” 

He said, at that point, there was no sense that there was a plan to get things under control, even though some blockades were being cleared - something he said they had heard before.

He was asked about Director Vigneault, who stated that even though there was no s.2 security threat, the Prime Minister should declare an emergency. He said there was consensus on this issue. He said CSIS may not have the capacity to bring a wiretap on a convoy organizer because it did not meet the CSIS s.2 test. He said that the CSIS director claimed, nonetheless, for the purpose of the Emergencies Act, CSIS felt it was met.

He said he had not made up his mind on the morning of February 14, 2022. He made up his mind when he received the note from the Privy Council. He said he would have changed his mind if someone said of the 6 things he was planning to do, they could do other things: e.g. compel tow truck drivers. He was worried that counter-protesters were going to take things into their own hands. 

He was given the note from the Privy Council at 3:41 pm on February 14, 2022. He reflected that if he had “waited a few days to see if we really needed to do it,” someone might have been hurt, and a police officer was put in hospital: he said he made the tough call to keep people safe and the collective advice of Cabinet, the public service and his inclination told him to do something to keep Canadians safe. He took comfort in the fact that the “systems are working”: he claimed that colours the conversation we are having. He is confident that he made the right decision. 

He was asked if invoking the Emergencies Act was anti-democratic or executive overreach. He said it was debated in Parliament many years ago, and it was a law available to the government for situations like this. He said this process itself is important. 

He said that CSIS is not the decision-maker. The use of the definition is for a different purpose; the requirements and inputs are different. He was asked if he was worried about setting a precedent. He said the work of the commission highlights that the decision is not to be taken lightly. He said the law is on the books to deal with situations like this. He said he would have difficulty explaining his failure to use the Emergencies Act if harm had occurred to someone. He said the checks and balances they have, the high threshold and the experience of many protests - he had faith in Canada.

He was asked about people who had endured years of suffering under mandates. He said, “we heard them.” But there was a previous election where that was put to Canadians. “People were well aware.” He said they wanted us to change public health policy and were going to disrupt things until they were obeyed. He noted that when the Premier of Alberta changed a mandate, the protesters were emboldened. He was asked about the economic harm as it applied to the definition of a security threat but said he focused on the threat of serious violence. 

On cross-examination by counsel for CCLA, he was taken through a chronology of events leading up to the invocation. The invocation was on February 14, and measures under it were put in place on February 15, 2022. He agreed that the Windsor Bridge was one of many significant events that led to the invocation. He understood that the police started to clear it on February 12, and the police cleared it by February 14, 2022. He agreed that he was informed that Coutts was secured by February 14, 2022. He agreed that none of the emergency orders created police joint commands: the police could have created it without the invocation of the Emergencies Act. He heard that Commissioner Lucki had signed off on a plan to clear protesters in Ottawa on February 13, 2022: he disagreed that the plan was an actual plan to clear the Ottawa protest. He did not see the plan; he was spoken to about it. He said he did not have confidence in the plan. He was told that OPS said they did not need additional tools: he said at the time, he saw that the occupation was continuing and the ability of the police to solve it did not exist. He said he was not aware that the RCMP Commissioner said legal tools were available at the time of the last IRG meeting. He said did not agree with the assessment that not all tools had been used.

He was taken to his announcement, where he said the invocation would give more tools to police and strengthen their ability.  He agreed that the invocation was made, in part, for preventative reasons, so the protesters did not return. He said he did not direct police when he announced that new tools were available.

He was taken to the threshold under the CSIS Act s.2 and asked if the threshold must be just as high for CSIS as it was for the invocation of a public order emergency: he agreed. 

On cross-examination by counsel for the JCCF, he said he understood Cabinet solidarity and confidentiality. He was asked about towing services. He said it was an important part of solving the situation. He admitted that municipalities had the theoretical authority to compel people to provide services, but they either could not or would not do so: he said the feedback he got was that they needed the power to compel. He agreed the issue of tow trucks was relevant to the invocation. 

He was taken to a portion of redaction where the government tried to redact a statement that the Americans offered “tow trucks.” He agreed that it was relevant to the issue. 

On cross-examination by counsel for the CCF, the Prime Minister was asked whether he would have taken care to determine that the Cabinet had all relevant information: in response, he said there would be many sub-groups that would discuss issues. He was asked whether the different legal definition was put to the full Cabinet on February 13, 2022: specifically, whether the written opinion was put to the Cabinet. He said it was a verbal opinion from the Department of Justice.

He said the CSIS threat assessment document was put to the IRG meeting; he seemed to say that the full report was not given to the Cabinet because they were not looking at the CSIS definition but the broader definition. 

He was shown the POU plan dated February 13, 2022. He said he had not seen this plan. He was shown that it was entirely redacted. The government counsel objected when the Prime Minister was asked to unredact the plan, despite the fact that the Prime Minister said people “should read the plan.” He agreed that people obviously cannot read a redacted plan.

He was asked whether he would release the legal opinion provided by the Department of Justice to its novel interpretation of the Emergencies Act: the lawyer for the government of Canada objected on the grounds of solicitor-client privilege. 

He was asked why the government of Canada has not previously revealed its novel interpretation of the Emergencies Act: he responded by claiming that the requirement that CSIS interpret s.2 is not mentioned in the Emergencies Act.

He was shown a document prepared by the OPS prior to February 14, 2022, to clear the protest. He said he had not read the plan prior to the invocation: he relied on input from experts. He was told that this plan was the one that was executed after the invocation. He said he had no reason to disagree with that. 

On cross-examination by counsel for the government of Alberta, he agreed that at the First Minister’s meeting, he could have changed his mind, provided several Premiers objected. He was asked whether it would have been important to give the Premiers proper time to prepare for the FMM. He said they had conversations and engagements with the provinces before that. He said there were ongoing conversations about tools, but the Emergencies Act conversation only occurred when the government had a specific list of tools it could use.

He was told that Commissioner Lucki advised the PMO that she had a plan on February 13, 2022, to clear Coutts. He said we had been told that before and noted that it had been done with resources drawn from B.C. He referenced the “whack a mole” problem of recurring protests. It was pointed out that the B.C. police were brought under the provincial authority and did not require the Emergencies Act power. 

He was given examples where provincial powers were enough: the Ambassador bridge was cleared. He alleged that those protesters were headed to another place. He agreed that the lanes were cleared at that moment. The other example presented was the clearing of Coutts. 

On cross-examination by counsel for the convoy organizer, he agreed that prior to February 14, 2022, all the border crossings were open. He maintained, however, that they were concerned that they would re-occur. He was briefed at the IRG meeting that there was a break-through agreement with the convoy organizers: he said he was also advised that the agreement was not holding, which he learned from officials at that meeting. He was told that 100 vehicles were removed prior to the IRG meeting. He was told that the police were blocking the removal of vehicles: he said he did not know this. He was asked if it would have been better for the agreement to have been implemented rather than for the Emergencies Act to be declared: he disagreed. 

He was told of the experiences of peaceful protesters. He was asked if he understands why protesters came to Ottawa. He maintained that he did not call unvaccinated people names: he claimed there was a difference between unvaccinated and “people who spread disinformation.” 

He said he got reports of people being swarmed for wearing masks and counter-protests. He said he was “worried about people taking things into their own hands.” He claimed that the protests could encourage people to “lash out” in a way that could be a threat to public safety. He claimed that the protesters were not rational actors. He agreed that there was a lack of violence, but there remained the “threat of violence.”

On cross-examination by the lawyer for the criminal lawyers association, he was asked about the “inputs” that went into the declaration. He said they took into account information from Cabinet and colleagues, from staff, from police, from citizens, from Premiers, from President Biden, from legal advisors. He estimated they spent an hour a day to a full day on these issues. He was asked whether he was ever presented with a concrete and detailed plan showing how traditional police powers would have worked in the circumstances: he said no. 

On examination by the government, he was asked about the February 13, 2022, proposed plan that existed prior to the invocation and about his understanding of the plan as recounted by Commissioner Lucki at the February 13, 2022, IRG meeting. He said the OPS plan at that point was not a plan to end “the occupation.”  He said he later found out the plan on the 13th was not completely unlike the plan on February 17, 2022.

He was asked about the consultation he had with the premiers: he agreed that they did not seem surprised by the consultation call, and they had reflections to share. They did not say they needed more time. 

He said the issue of tow trucks was an issue on the morning of February 14, 2022. He said his motivation was about ensuring the safety of Canadians, that they had confidence in institutions and enforced the rule of law.

In closing submissions, the government of Canada claimed that there were reasonable grounds to invoke the Act. They said there were serious threats to the safety of persons and property. They claimed that the blockades were part of this serious threat of violence to property and persons. They referenced the seizure of weapons, chaos in the City of Ottawa, and harassment of citizens in Ottawa. They claimed there was escalating online violent extremism and threats against officials. They claimed there was prevalent hate speech against racialized minorities. They claimed there were threats against economic security, including against railways and airports. They claimed that the protests were interconnected and designed to overwhelm law enforcement. They claimed all other options were considered before invocations. They claimed the measures were temporary and Charter-compliant. They claimed the tow truck operators were indemnified. They claimed that the invocation was rescinded after 9 days. 

The government of Saskatchewan argued that the invocation was over-broad and interfered with provincial powers. It said the test was not met. The invocation and emergency orders interfered with provincial jurisdiction over policing, insurance, credit unions, and loan companies. 

They referred the commission to s.3 of the Emergencies Act, which requires that the situation exceed the ability or legal capacity of the provincial government: this was not the case. They claimed the decision to invoke was made on the morning of February 13, 2022, before the consultations with the premiers on February 14, 2022: this was not adequate consultation.

The government of Alberta argued that the consultations with the provinces were insufficient. They also noted that 8 of the provinces disagreed with the invocation, and some provinces dealt with the protests before the invocation. They said that freezing the bank accounts of Canadians without due process was extraordinary. It was noted that joint accounts were frozen, punishing innocent people. The fact that the steps taken were useful or effective do not excuse this conduct. 

The government of Windsor argued the need for clear lines of communication between levels of government and the importance of implementing plans to prevent these kinds of protests from ever recurring.

Counsel for OPP cited Beaudin when he said, “police are impartial”. He stated that the OPP takes no position on whether the government of Canada should have invoked the Emergencies Act. He reiterated that while the tools were useful, they were not necessary due to the work of the OPP using existing tools/authorities. It is the position of the OPP that the Emergencies Act was not required. He pointed to the evidence that the Act was not used to compel tow trucks. There was ample intelligence which showed that the convoy was not going to be a ‘weekend event’. The OPP asked the commissioner to consider whether the OPP should be consulted prior to invoking the EA.

Counsel for Chief Sloly argued that Chief Sloly has a long record of success in every role he has taken as a police officer. The convoy was unprecedented. As the protest became an occupation, the police had to evolve to deal with the situation. Chief Sloly raised the issue of a lack of resources. He stated that everyone who testified described the pressure that was present in this situation and that this should be kept in mind when passing judgment on Chief Sloly. The intense scrutiny Chief Sloly has been under has established that he exercised his authority appropriately. It was an impossible situation: to dismantle the protest without the required resources.

The Convoy Organizers pointed to the evidence and threshold required to invoke the Act during opening statements. It is their view that there was no justification. It requires the fulfillment of one of several elements 1) espionage or sabotage - no evidence, 2) clandestine activity - no evidence 3) violence against persons or property - no evidence, or finally, 4) a group of persons trying to overthrow the government via violence - no evidence. The government exceeded their jurisdiction on both constitutional and legislative grounds. They chose the use of force and state violence rather than peaceful negotiation. Canadians felt that the government went too far re: covid mandates, and the government responded with the use of force. The government refused to engage with the people. They quashed the most fundamental right afforded to Canadians: protesting. This is the last resort for free expression. We witnessed the government respond to these protests with force. She recounted the evidence of Mr. Dearing, a wounded veteran, who was brutally beaten by the police and treated with less dignity than a prisoner of war. She argued that if there ever was a time for a Prime Minister to step down, now is that time.

The Union of BC Indian Chiefs pointed out that Rob Stewart was not aware of any efforts on behalf of the government on the consultation of FN leaders prior to invoking the Act. Brenda Lucki confirmed that she was not sure if FN Chiefs were consulted. This consultation should be built into the legislation. The evidence illustrates that there was a lack of respect for indigenous rights.

The Canadian Constitutional Foundation argued that the commission should look to history. They said the 1970s Cabinet minutes indicated that the security services said there was no insurrection in Quebec, but the Quebec minister Marchand presented evidence that there was an insurrection: accordingly, he persuaded the Cabinet. However, it turns out that the Cabinet was wrong. The Act was initially drafted with the language “in the opinion of the Cabinet,” but this was changed to require “reasonable grounds”: that shift to a reasonable grounds test was so that the courts could determine whether the government had reasonable grounds. The government has not established that they had reasonable grounds: no such evidence was presented to the full Cabinet. CSIS testified to this. The “reasonable grounds” test requires the Cabinet to establish the reason it disagreed with expert evidence: simply re-interpreting the law is insufficient. The commission should consider this when deliberating. 

The Canadian Civil Liberties Association argued that without the invocation, the measures enacted by the Emergencies Act would constitute infringements of civil liberties. Thus, justification is important for future declarations. It noted that the core elements of justification focused on economic harm and the threat of serious violence due to some elements of extremists and some claims of risk of counter-protests. There was insufficient evidence to establish this. The most serious situation - the weapons in Coutts - was dealt with through normal procedures. The s.2 definition does not include “economic harm.” A creative and liberal interpretation by the government does not overcome this. The government exceeded its authority. 

The TDF argued that the s.2 threshold is high, requiring serious violence or threats of serious violence. CSIS references s.2 as a “terrorism and extremism” threat. The evidence of violence, though it exists, did not rise to the level required in s.2. Even the existence of weapons in Coutts does not rise to the level. The s.2 requires a present threat and not prospective threats or fear of threats. 

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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