Was the Invocation of the Emergencies Act Justified? A Look at Core Issues Raised During the Public Hearings

Justice Paul Rouleau listens as Prime Minister Justin Trudeau testifies at the Public Order Emergency Commission in Ottawa on Nov. 25, 2022. (Justin Tang/The Canadian Press)

News Analysis

The public hearings phase of the Emergencies Act inquiry came to a close on Nov. 25 with testimony from Prime Minister Justin Trudeau. Commissioner Paul Rouleau is now hearing from expert witnesses in the lead-up to issuing his report in February, which will address whether the Trudeau government was justified in declaring a public order emergency.

Six weeks of hearings before the Public Order Emergency Commission (POEC) shed light on some key areas, but in others, major questions remain.

Was There a Threat to National Security?

The Liberal government declared a public order emergency in February to deal with cross-country protests and blockades demanding the lifting of COVID-19 restrictions.

The Emergencies Act (EA) states that if it is to be invoked, there must be a threat to the security of Canada so serious that it constitutes a national emergency. The specific threats are defined in Section 2 of the Canadian Security Intelligence Service (CSIS) Act.

The four categories of threats under Section 2 are espionage and sabotage, foreign-influenced activities, threats or acts of serious violence with ideological motives, and violent revolution.

Two federal security agencies and one provincial police intelligence body provided their input at the commission on whether last winter’s events constituted a national security threat.

CSIS, whose sole purpose is to investigate such threats, said no national security threat existed.

“We did not make a determination that the event itself” was a threat to national security, CSIS Director David Vigneault told the commission on Nov. 21.

Vigneault had earlier participated in an interview with the commission in August. According to the summary of that interview, he stated that “at no point did the Service assess that the protests in Ottawa or elsewhere [those referred to as the ‘Freedom Convoy’ and related protests and blockades in January-February 2022] constituted a threat to the security of Canada as defined by section 2 of the CSIS Act, and that CSIS cannot investigate activity constituting lawful protest.”

RCMP Commissioner Brenda Lucki provided the inquiry with a similar assessment on Nov. 15.

“There was some snippets of information on open source, and that came through intelligence—things that were similar to the storming of the Parliament—but none of it manifested itself, so it wasn’t a national security threat, it was a national event,” she said.

The third security organ to make a pronouncement on the issue was the Provincial Operations Intelligence Bureau (POIB) of the Ontario Provincial Police (OPP).

Even though the OPP has no national mandate, the commission heard that the POIB was tracking and assessing the Freedom Convoy early on, as it would eventually cross into Ontario and arrive in Ottawa.

At one point the POIB did assess the convoy could “potentially” become a national security threat, but the head of POIB, Supt. Pat Morris, told the inquiry on Oct. 19 that he was uncomfortable with this judgment.

Morris explained that it was because neither CSIS nor the RCMP viewed the events as a national security threat.

EA ‘Not Restricted by the CSIS Act’

These assessments by professional and specialized agencies were irrelevant to the Liberal government, several federal officials and ministers told the commission.

“What Parliament did not do with the creation of the Emergencies Act was delegate the decision-making to CSIS,” testified Justice Minister David Lametti on Nov. 23. “The decision-making power is always in the hands of cabinet.”

Prime Minister Justin Trudeau told the inquiry on Nov. 25 that there was a threat to national security as defined by Section 2(c) of the CSIS Act, which pertains to “threat or use of acts of serious violence ... for the purpose of achieving a political, religious or ideological objective.”

He gave examples of trucks that could be used as “weapons” and noted the seizure of firearms and arrests made in Coutts, Alberta.

Trudeau’s National Security and Intelligence Advisor Jody Thomas testified on Nov. 17 that “the public order emergency is assigned meaning by the CSIS Act but is not restricted by the CSIS Act.”

She said the CSIS Act is actually too narrow and that a broader definition can be used to invoke the Emergencies Act.

Thomas gave examples of what she thought constituted a threat to national security not captured by the CSIS Act, such as foreign interference and ideologically motivated violent extremism. These threats are in fact covered by Sections 2(b) and 2(c) of the act.

She also cited “the threat to public institutions, and the undermining of the confidence in public institutions,” as risks to national security.

Another argument made about the CSIS Act was that its purpose is to determine the grounds for launching national security investigations against entities and that this purpose does not directly translate to the context of the Emergencies Act.

Trudeau, Lametti, and Public Safety Minister Marco Mendicino all made this assertion.

But toward the end of the public hearings, the counsel for the Canadian Civil Liberties Association, Ewa Krajewska, challenged Trudeau on that claim.

“I would put to you that, when invoking the Emergencies Act, … the level of thresholds of the security threat that must be met cannot be any lower than it is when CSIS is proposing to surveil one person, that the threshold is no different. Do you agree with that?” she said.

“Yes, I do,” answered Trudeau.

Was There a National Emergency?

Section 3 of the Emergencies Act establishes what constitutes a national emergency. It defines a national emergency as “an urgent and critical situation of a temporary nature that seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security, and territorial integrity of Canada.”

The definition also says the situation must be one “that cannot be effectively dealt with under any other law of Canada.”

Perrin Beatty, architect of the EA, described the combination of Section 3 of the EA with Section 2 of the CSIS Act as a “double test” that needs to be met in order to declare a public order emergency. Beatty is the former Conservative defence minister who sponsored the bill that became the EA in 1988 to replace the War Measures Act.

It is now clear through evidence revealed at the commission that not many of the provinces wanted the federal government to declare an emergency.

The EA requires the government to consult with the provinces and territories prior to invocation. A summary of the first ministers’ conference call on Feb. 14, the day the act was invoked, indicates that among the provinces impacted by active protests or blockades, only Ontario’s Doug Ford was supportive.

By the time Ford provided his support, police had cleared the blockade of the Ambassador Bridge in Windsor, leaving only the Ottawa protest as the major demonstration in the province.

No Law on the Books

The other issue that stems from the EA requirement on what constitutes a national emergency is whether there were laws on the books to properly address the situation.

The timeline of events shows that every protest had been dealt with using tools available outside the EA, including a provincial declaration of emergency in Ontario and an injunction in Windsor.

The remaining question is whether police would have been able to remove the trucker-led protest in Ottawa without the EA after over two weeks of being unable to shrink its footprint.

Senior police officers who testified at the inquiry have generally shared the same opinion—that the protest would have been cleared without the EA.

“In the absence of the invocation of the Emergencies Act, the OPS, the OPP, the RCMP—as part of unified command—were going to clear the protests,” Steve Bell, interim chief of the Ottawa Police Service (OPS), testified on Oct. 24.

Now-retired OPP chief superintendent Carson Pardy, who was in charge of helping to plan the removal of the protest, was of the same opinion.

“We had some help with [the provincial declaration of emergency] and the Emergencies Act, but in my humble opinion we would have reached the same solution with the plan that we had without either of those pieces of legislation,” Pardy told the inquiry on Oct. 21.

Lucki had told Mendicino’s chief of staff in an email on the evening of Feb. 13 that she believed not all legal tools had been exhausted to deal with the situation.

Though she took that stance before the invocation, she testified at the commission she had found the tools provided by the EA “useful” to deal with the protest.

The Liberal government has said the tools provided by invoking the act were crucial, but evidence revealed at the inquiry has cast some doubts about this claim.

“My concern in my capacity, as the Minister for Public Safety, is that if we don’t equip police with the additional tools and the authorities that they need to specifically address the gaps that they had been consistently briefing us on, then that might lead to more violence,” Mendicino said in his testimony.

Some solutions Mendicino identified as having been provided by the act included the ability to swear in officers faster, establish no-go zones, and compel towing companies to remove the heavy trucks.

It turns out the OPS used normal authorities to establish the perimeter, as explained by RCMP Deputy Commissioner Michael Duheme.

“Ottawa Police Service had the lead on that and used existing authorities when they put it in, so we did not use the act specifically for the control access zone. They do it during the Canada Day, they do it during other events in Ottawa. So they use existing authorities to put the fence up, to put the perimeter up,” he testified on Nov. 15.

The issue of the difficulty to secure tow trucks had been raised many times by the Trudeau government, but OPS officers testified that heavy duty tow trucks had already been arranged on Feb. 13, the day before the invocation.

“With respect to towing, we heard a lot of evidence,” said OPP counsel Chris Diana on Nov. 25.

He said ultimately where the “evidence lands” is that the EA “provided indemnification and for sure business purposes, but the email from the OPP subject matter expert indicated that it was not used to compel tow trucks.”

Legal Advice

Federal officials and ministers testified under oath at the commission, and while the government provided many documents pertaining to the events, many were heavily redacted and solicitor-client privilege has not been lifted.

Hence neither the commission nor the public will be able to know how the attorney general and the Justice Department interpreted the Emergencies Act before it was invoked, and how it was determined that the threshold had been met.

“I think we have done our best to provide all the information we can,” Lametti told the commission on Nov. 23 while repeatedly claiming solicitor-client privilege.

Commissioner Rouleau expressed concern about the lack of transparency, asking Lametti how he can be expected to assess the reasonableness of the invocation without knowing the information that the government was acting on.

“I guess the answer is we just assume they acted in good faith in application of whatever they were told. Is that sort of what you’re saying?” Rouleau asked, in relation to the legal advice provided to the government.

“I think that’s fair,” answered Lametti.