Public Order highlights: Wednesday, October 19

TDF’s Legal Team

Written by
October 19, 2022

On Wednesday, October 19, The Democracy Fund (TDF) Litigation Director, Alan Honner, cross-examined Superintendent, Pat Morris, of the Ontario Provincial Police.

The Commission featured some significant testimony from Councillor Diane Deans, and Superintendent Pat Morris.

Ms. Deans testified that former Ottawa Police Chief Sloly had claimed, early in the protest, that he viewed this as nothing other than a protest that would come and go. He expected it to be gone "by Monday". On or about February 2, 2022, however, Chief Sloly came to the view that the Ottawa Police Service (OPS) may not be capable of executing a local policing solution. As the protest developed, the board eventually advised that it needed more resources.

Ms. Deans admitted that, over time, the police response to the protest improved due to the integration of the RCMP and OPP with the command structure of the Ottawa Police Service. As the police services integrated, more resources were received, and a plan was created. She noted that the lack of resources was always the problem. On cross-examination, she said that Chief Sloly wanted help from all levels of government, and Ms. Deans agreed that "he was right." She mentioned that she was not invited to tripartite talks between the Mayor of Ottawa and government representatives regarding increased resources though she is the chair of the police services board.

Superintendent Morris testified that, at least on February 7, 2022, there was "almost no reported criminal activity" as the convoy moved across Canada, and further that, "It was conspicuous for the absolute lack of criminal activity." He was asked about the inclusion, in one police intelligence report, of the claim that there was the potential for a threat to national security. He stated that the inclusion of this claim was due to the movement of the convoy to the border that might affect the integrity of the border or economic integrity. He noted that the Canadian Security Intelligence Service (CSIS) disagreed with this assessment that there was a potential for a threat to national security at this time. He said there was the potential of lone actors and small fringe groups being violent, but that was addressed by police proactively through intelligence operations. Early in the protest, weapons were not seen as a problem in Ottawa: there were no credible threats or threats of the use of heavy machinery. The threats to public safety didn't materialize during the first week of the protest. There was no specific threat of an attack on Parliament. The first weekend was calm, with no threats or acts of serious violence.

When asked on cross-examination of the elements justifying the declaration of a public order emergency under the Emergencies Act, Mr. Morris admitted that the OPP had no evidence of espionage, sabotage, or foreign influence that involved serious threats to persons or property. He did see online rhetoric and assertions in social media, but no intelligence report was produced to support them. 

He stated that, in his view, the definition of extremist is problematic as it is subjective, and there is no legal definition. The Criminal Code speaks of terrorism, hate crimes, genocide, and acts against religious property. He uses a working definition: someone who would use violence to achieve their goals. Morris later admitted to the surveillance of convoy protestors.

Since the OPP is integrated with various intelligence services, including CSIS, he believed that he would have been informed in relation to serious violence, and threats to lives or property. He may not be informed if it wasn't within his purview, however. He was not told by those actors that he had not been informed of these threats.

When told that members of Parliament sat during the protest, he said he could not speak to whether members felt that they were impeded.

Counsel for the Government of Canada asked if an event like this protest increased the likelihood of, or opportunities for, a lone-wolf attack: Superintendent Morris agreed that it could. He said things got more volatile with the issuance of provincial offence notices.

The arrests that occurred in Coutts, Alberta, had very little impact on the protests in Ottawa. The threats of violence related to the protest movement as a whole - but there were no credible intelligence threats of violence.

He was not involved in investigations of threats to politicians: OPS maintained carriage of that. But there was no credible intelligence of threats to politicians. He said, "the lack of violent crime was shocking." He noted that, of the 10 charges of criminal violence, six were against police officers. 

On cross-examination by TDF litigation director, Alan Honner, Superintendent Morris conceded that he was concerned by the sensational and politicized aspect of public discourse about the protest. He was concerned about comments made publicly that he believed were not premised in fact: from his perspective, he was leading the criminal intelligence investigation into these events, and he understood what was transpiring. Accounts of Russian or US influence, or extremist elements, he found to be problematic. He did not see any validation of these assertions. When asked about media disinformation, he believed that a lot of people were making assertions that were not accurate. Some of these subjective assertions exacerbated the conflict. He said that some perspectives seemed to be simply confirmatory of a worldview. He noted that there is always overreach to threat claims but that there is often just a political disagreement. He noted that just because we have a disagreement does not mean the powers of the state should be brought to bear. 

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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