Trudeau met threshold to invoke Emergencies Act, commission finds

The Public Order Emergency Commission has concluded that the federal government met the threshold for invoking the Emergencies Act to bring an end to the “Freedom Convoy” protests and blockades.

“I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance,” said Commissioner Paul Rouleau of Prime Minister Justin Trudeau’s decision to declare a public order emergency, in a mammoth five-volume, 2,000-word report released Friday.

The commission has concluded that, while the prime minister met this bar for invoking wide-sweeping powers to address the anti-COVID-19 restriction and anti-government Ottawa occupation and blockages at key Canada-U.S. border crossings, this move could have been avoided if it wasn’t for “a series of policing failures” and all levels of government failing to “rise above politics.”

“Some of the missteps may have been small, but others were significant, and taken together, they contributed to a situation that spun out of control. Lawful protest descended into lawlessness, culminating in a national emergency,” Rouleau writes in his 273-page executive summary.

“Many have called the events of January and February 2022 exceptional. I think that is an apt description,” said Rouleau. “There was credible and compelling evidence supporting both a subjective and objective reasonable belief in the existence of a public order emergency. The decision to invoke the act was appropriate.”

During the commission hearings it came to light that CSIS didn’t view the “Freedom Convoy” protests as a national security threat by definition, though Trudeau’s National Security and Intelligence Adviser Jody Thomas did.

In his report, Rouleau ruled that there was “credible and compelling” information provided to the commission to support a reasonable belief that the definition of a threat to the security of Canada was met. 

The report states that the series of events that transpired can be seen as “a failure of federalism” as Canada’s leaders failed to anticipate or properly manage the “torrent of political protest and social unrest” that was exacerbated by the COVID-19 pandemic and shaped by online disinformation.

“Had various police forces and levels of government prepared for anticipated events of this type and acted differently in response to the situation, the emergency that Canada ultimately faced could likely have been avoided. Unfortunately, it was not.”

SOME FEDERAL POWERS ‘FELL SHORT’

In his assessment, the commissioner said that the first-ever invocation of the Emergencies Act itself had a “deterrent effect.” And, while most of the unprecedented measures cabinet put in place to respond to the situation — from wide-sweeping police powers, to cracking down on protesters’ access to funds — were appropriate and effective, “others fell short.”

Among the measures he deemed adequate were compelling essential services such as tow operators to move the rows of immobilized transport tucks, and the controversial capability for the federal government to freeze protesters’ assets. However not having a “delisting mechanism” for the accounts of people who left the protest was a “failure.”

Rouleau also raised questions around whether the measure to designate “protected places” to create exclusion zones, was used to an appropriate scale. He found that the way this power was worded was too vague to be properly enforced. 

The report finds that the federal government adequately consulted ahead of the Feb. 14 invocation, and that he believes “cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable.”

Organizers of the “Freedom Convoy” have long contended that the three-week protest in downtown Ottawa was a peaceful celebration, and not a forceful occupation. But, Rouleau decidedly rejected that version of events.

“I do not accept the organizers’ description of the protests in Ottawa as lawful, calm, peaceful or something resembling a celebration,” Rouleau said in his report. “The bigger picture reveals that the situation in Ottawa was unsafe and chaotic.”

Speaking about his findings from the room where weeks of hearings took place, Rouleau described his task as “monumental” and noted that he did not come to his conclusion—that while the invocation was appropriate not all of the emergency powers granted were—easily. 

ROULEAU MAKES 56 RECOMMENDATIONS

Justice Paul Rouleau releases his report on the Liberal government’s use of the Emergencies Act, in Ottawa, Friday, Feb.17, 2023. THE CANADIAN PRESS/Adrian Wyld

Rouleau has presented Parliament with 56 recommendations broken down into these categories: policing, federal intelligence collection and co-ordination, critical trade corridors and infrastructure, and changes to the Emergencies Act, areas for further study, and follow-up and accountability.

A core point of contention throughout the hearings was the reference, within the Emergencies Act, to the CSIS Act’s definition of “threats to the security of Canada.” Rouleau wants it removed. He also thinks there should be more discussion around the ‘reasonable grounds’ threshold requirement within the Act.

Other highlights of Rouleau’s recommendations include:

• Consider creating a single national intelligence coordinator for major events that span the nation or cross interprovincial jurisdictions;
• Develop national standards for policing major events and establish a nationally led major event management unit;
• Consider whether a federal department or agency should be responsible for monitoring and reporting on social media;
• Identify critical trade corridors and infrastructure and work across jurisdictions to establish protocols to protect them; and
• Make a series of changes to the 1988 Emergencies Act including giving the commission power to order the production of documents and extending the amount of time provided to complete its work.

“There are important systemic lessons to be learned for both police and governments from the events,” reads the report. Rouleau is calling on the Liberals to report publicly within the next 12 months, identifying which recommendations it accepts with a timeline for implementation, and detail why it would be rejecting others.

Sparked by Trudeau’s decision last year to invoke the Act, the public release of the report — a few days ahead of the Feb. 20 deadline — marks the end of a months-long national inquiry into the historic series of events.

Minister of Emergency Preparedness Bill Blair tabled the report in the House of Commons on Friday.

The prime minister was to be reviewing the report on Friday morning, and has scheduled a press conference for later this afternoon on Parliament Hill.

Conservative Leader Pierre Poilievre, as well as some of the organizations that were granted standing, will also be reacting later Friday. 

A REPORT NEARLY A YEAR IN THE MAKING

Launched in April 2022, the inquiry was struck with a mandate to examine the circumstances that led to the historic use of the Emergencies Act as well as the measures taken through it.

After an unanticipated delay and months of research and policy work behind the scenes, including collecting troves of sensitive documents including rarely released cabinet confidences and conducting pre-interviews with key witnesses, the public hearings portion of the inquiry began in October.

Over six weeks, testimony was heard from 76 witnesses, including key convoy organizers as well as Trudeau and his top advisers, and 9,000 documents were submitted into evidence. The commission then spent a week holding policy roundtables with experts on some of the bigger-picture themes that emerged.

Throughout the testimony and the revelations and insights it has offered — from Ottawa’s dysfunction and the Ontario government’s apparent lacking involvement, to power struggles between protesters — the federal government stood by its decision to invoke the Emergencies Act, a move it has repeatedly described as a measure of “last resort.”

From late November on, Rouleau and commission lawyers had been working largely behind closed doors to compile this report. After seeking and receiving a weeks-long extension, the sizeable report was presented to the key players as well as the public on the same day.

Rouleau has previously noted the tight timelines he was provided for completing his work, noting that while other high-profile inquiries often take years to complete, the POEC had less than 365 days.

“We can all hope that such an exceptional confluence of events and circumstances does not occur again. However, even if it does, and if once again the very high threshold for declaring an emergency is met, members of the public should recognize that the Act contains significant safeguards,” said Rouleau in his remarks to reporters.

“The Parliament that passed the Emergencies Act in 1988 went to great lengths to ensure that its use would be subject to robust accountability and public scrutiny. I hope that this Inquiry, and my report, have contributed to achieving this.”

While pushing for amendments to the contentious law may pose challenges for the Liberals in the current minority Parliament, ahead of the report’s tabling Public Safety Minister Marco Mendicino indicated that the federal government will be looking to work with parliamentarians to enact Rouleau’s recommendations.

More coming…