Public Order highlights: Monday, October 24

TDF’s Legal Team

Written by
October 24, 2022

The Public Order Emergency Commission continued with testimony from Ottawa Police Service (OPS) Interim Chief Steve Bell.

Interim Chief Bell testified that as of January 28, 2022, as indicated by the intelligence reports, there was a low risk of violence. Additionally, it was indicated that there was a low risk of the convoy staying beyond the weekend.

He testified that he heard on February 12, 2022, that the City was negotiating with protesters toward a deal. He noted that the federal government was coming to a point where "they were looking to engage with what was happening in Ottawa". He understood that although the strategic decision was made to support negotiations, there were operational problems with this and that caused negotiations to cease.

When asked about the impact the declaration of the emergency declaration had, Interim Chief Bell answered that it had no direct operational impact, but it was of significant help in that it allowed OPS to streamline the swearing-in of officers from other provinces, it removed barriers for tow trucks, it was beneficial regarding financial investigations since it provided a legal framework for their investigations, and it provided a clear legal platform.

Interim Chief Bell, however, testified that he was not in a position to say that the protesters were a national security threat. He testified to the horns, idling of vehicles, and conflictual engagement of protesters and the community. The assaultive behaviour, hate & bias crimes, fettering of movement, and constant conflict was unanticipated, he said.

On cross-examination by the Government of Canada, he claimed that hate-based crimes and other crimes that he alleged were not captured in early intelligence reports or any other reports.

When asked if the declaration of an emergency was useful, he stated that Emergencies Act powers were of benefit to allow police to end the protest as it created a legal structure for OPS to use.

Interim Chief Bell was asked in cross-examination if some protesters were driven out of town by OPS officers and abandoned in a remote location. He noted that he was not aware of the specifics, but said that he was aware that as part of the planning "remote processing sites" in residential/commercial areas had been established and that protesters were released and left to find their way out of Ottawa. He stated that he was aware that a municipal parking lot, for example, was used as a processing site. 

On cross-examination, when confronted with his use of the term "violence", Interim Chief Bell testified that when using the word "violence" he was not actually describing physical assaults: rather, he was describing what the affected community felt with respect to honking, idling and intimidation. He confirmed that this did not include actual violence under s.2 of the CSIS Act. He later expanded his definition of "violence' to include trauma that the community felt.

He agreed that 31 people were arrested between January 28, 2022, and February 16, 2022, but only 16 had been charged. There were a total of four charges laid for assault and one assault with a weapon in that timeframe. No Criminal Code charges were laid for causing a disturbance, disturbing an occupant, or inciting hatred in a public place, and only one charge was laid for intimidation. Further, no charges for taking weapons from a police officer or uttering threats to damage property were laid.

In an email exhibit presented to Interim Chief Bell for comment, Commissioner Lucki wrote: “I am not of the view that we have exhausted all available tools that are already available through the existing legislation.” When asked if he agreed with Chief Lucki’s perspective, he testified that there could have been other opportunities and that these abilities existed under available legislation.

On cross-examination by counsel for the Justice Centre for Constitutional Freedoms (JCCF), he testified that the Emergencies Act proved useful in rapidly swearing in out-of-province police, but conceded that this swearing-in could have been done in a span of 24 hours without the declaration of a public order emergency under a streamlined process. He agreed the Emergencies Act was helpful but not necessary.

He conceded that the police already had powers to exclude people from the downtown core without the declaration of an emergency. When asked if he believed that the declaration of an emergency was not necessary, he stated that the RCMP, OPS and OPP were going to clear the protest.

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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