The director of Canada’s spy agency advised Prime Minister Justin Trudeau to invoke the Emergencies Act to end last winter’s convoy protests, despite the fact that the blockades did not meet the CSIS definition of a national security threat outlined in the sweeping legislation.
The Emergencies Act was necessary, David Vigneault, the head of the Canadian Security Intelligence Service, told the inquiry studying the act’s use on Monday. He testified that he gave that advice after he was reassured by a Justice Department legal opinion that allowed for a broader interpretation of the definition that stipulated when the powerful legislation can be used.
That legal advice is central to the federal government’s justification for invoking the never-before-used act and is the inquiry’s focus as the commission enters a pivotal week. In its final week of public hearings, the Public Order Emergency Commission will hear from the most senior cabinet ministers involved in making the decision, ending with testimony from Mr. Trudeau on Friday.
Led by Justice Paul Rouleau, the inquiry is studying whether the legal threshold to invoke the act was met. Mr. Trudeau made the emergency declaration on Feb. 14 in response to anti-government, anti-vaccine protests in downtown Ottawa and at various border crossings. The legislation gave federal officials extraordinary temporary powers, which they used to crack down on demonstrators. The government revoked the emergency declaration on Feb. 23.
Many of the government ministers and officials who are being called as witnesses have already been subject to numerous parliamentary committee hearings about the use of the Emergencies Act. However, until testimony at the inquiry last week the government had not disclosed that it relied on a broader legal interpretation to invoke the act. And it remains unclear whether the full legal opinion will be disclosed because the government has not waived solicitor-client privilege.
The Emergencies Act can be invoked in response to security threats that rise to the level of a national emergency that the government is unable to effectively deal with under other laws. The definition of threats to the security of Canada in the Emergencies Act is the same as the one contained in the CSIS Act – the legislative framework that governs the spy agency.
Mr. Vigneault said the protests did not meet the definition of “threats to the security of Canada” contained in the CSIS Act and he advised cabinet of that. But he said the federal Justice Department’s legal opinion convinced him “that in the context of the Emergencies Act, there was to be a separate interpretation based on the confines of that act.” He said that advice was “instrumental” and informed his work from Feb. 10 onward, however he did not explain how the government’s legal opinion broadened the definition beyond what is in the CSIS Act.
Mr. Vigneault said the overall unpredictability of the protests led him to believe “the regular tools were just not enough to address the situation” and the Emergencies Act was needed. He said the elements that contributed to his assessment included the fact that CSIS knew there were ideologically motivated, violent individuals interested in the protests; the scope of the demonstrations; the resulting drain on law-enforcement resources; and the fact that police had not yet implemented an operational plan.
Leah West, assistant professor at Carleton University’s Norman Paterson School of International Affairs, said it’s now clear the government took a broader interpretation of the Emergencies Act threshold than expected. However, she said it remains unclear what basis it used to broaden the definition of “threats to the security of Canada” and just how far that new definition goes.
That outstanding information is crucial to understanding how the government believes it can use the Emergencies Act and for the precedent it could set for other federal laws that rely on the CSIS Act definition, such as the Security Offences Act.
“The same words should mean the same thing every time they’re used, at least within an act, but ideally, across the corpus of Canadian law,” Dr. West said. She said that principle is particularly important in the sphere of security law where there are “significant consequences” to how a law is used.
Dr. West said the government also appears to have taken the opposite approach of what the crafters of the Emergencies Act, which was passed in 1988, envisioned. She said parliamentary debate at the time shows people were worried that relying on the CSIS Act threat definition gave the government too broad a scope to invoke the act. In response, the act’s defenders assured parliamentarians that the definition of a national emergency would put more constraints on when the act could be used. Instead, at its first use in Canadian history, its scope was broadened.
Civil-liberties groups with standing at the inquiry have strongly challenged the government’s explanation for invoking the act since it was first disclosed during witness testimony last week. On Monday Cara Zwibel, a lawyer for the Canadian Civil Liberties Association, said the “government’s argument appears to be that the Emergencies Act doesn’t mean what it says.”
Sujit Choudhry, a lawyer representing the Canadian Constitution Foundation at the inquiry, called on the government to waive solicitor-client privilege on the legal advice that Mr. Vigneault referenced in “fairness” to the inquiry’s work. The protest organizers in Ottawa waived their solicitor-client privilege to allow their lawyer to testify but the government has not and the Prime Minister’s Office would not say Monday whether it would waive privilege on the legal opinion mentioned by Mr. Vigneault.
Attorney-General David Lametti will testify on Wednesday. His office wouldn’t say whether the legal opinion will be disclosed but said he is committed to transparency.
Emergency Preparedness Minister Bill Blair was the first federal cabinet minister to testify at the inquiry. Mr. Blair defended the invocation of the Emergencies Act on Monday and said it was necessary, most notably to deal with the border blockades.
Mr. Blair also said he believed “the persistence of clearly unlawful and disorderly” behaviour during the protests showed that the situation was “escalating towards a greater likelihood of a violent outcome.”
Mr. Blair also said the sweeping powers were necessary because “existing authorities had been exhausted and proven to be inadequate,” according to a summary of an earlier interview he had with inquiry lawyers.
That opinion contradicts the assessment from RCMP Commissioner Brenda Lucki at the time that the police had not yet exhausted all tools under existing legislation. Asked whether he was aware of her view, Mr. Blair responded: “I don’t believe I was.”
Mr. Blair also said he did not ask law enforcement whether, in their view, the threshold to invoke the Emergencies Act had been met and said he believed the question would have been inappropriate.
Evidence presented to the inquiry shows an acrimonious relationship between Mr. Blair and Ric McIver, then a provincial minister in Alberta. That province opposed the act’s invocation and RCMP have said the powers brought in under the act were not used to clear the border blockade in Coutts, Alta.
During cross-examination, Mr. Blair was asked about an e-mail he sent several days after the act was invoked where he wanted to publish a letter from the Alberta government asking for federal help to tow trucks at the border. “They are practically begging for us to help. We should think about publishing this,” he wrote.
Evidence presented to the commission shows the federal government did not respond to Alberta’s request and the province ultimately purchased its own heavy tow truck equipment using sites like Kijiji.
MARIEKE WALSH AND MARSHA MCLEOD
The Globe and Mail, November 21, 2022