Take good notes.
That’s what Prime Minister Justin Trudeau told his staff as he decided to invoke the Emergencies Act for the first time in Canadian history.
Anti-government, anti-vaccine-mandate protests had been gridlocking downtown Ottawa for more than three weeks, while jammed border crossings were wreaking havoc on international trade.
Through the inquiry, reams of government records have been released, resulting in a rare look inside the most powerful public offices in Canada. The thousands of pages of text messages, e-mails, meeting minutes, and hand-scribbled notes detail ministers’ personal fears, private conversations and comments not meant for public consumption.
The records reveal a behind-the-scenes scramble to figure out the legal threshold to invoke the Emergencies Act; whether the convoy actually posed a national-security threat, as required by the legislation; and how to articulate that in a memo to the Prime Minister.
Secret cabinet documents foreshadowed the resentment that would animate the protests, and detailed their historical precedents. Rather than the “unprecedented event” described by police, media and government, the convoy protest was just the latest example in a long line of pandemic protests dating back centuries to the Black Death in the 1300s, a federal analysis found.
The Public Order Emergency Commission, which is led by Justice Paul Rouleau, has heard how the protests fractured supply chains, made a mockery of the capital city’s police and dented Canada’s international reputation. Amid all the revelatory details, Justice Rouleau has said that his focus remains squarely on the federal government’s decision to give itself the power to rule by executive order.
Despite the government’s extensive disclosures, it has not lifted the veil of solicitor-client privilege. The legal opinion that the government relied on to invoke the act remains hidden from the commission, the public and from the Parliament that retroactively voted on the use of the act.
The inquiry’s primary hearings concluded last week with the high-profile testimony of Mr. Trudeau. As the inquiry spent this week on an additional week of policy discussions, The Globe and Mail looked back at the key documents and debates raised over the past of six weeks of testimony, involving 76 witnesses over more than 230 hours, as well as the tabling of more than 7,000 documents. The result is a detailed view of governing and policing during a crisis.
Reports warned of potential civil unrest
In its 2021 “year ahead” report, the intelligence group in the Privy Council Office (the bureaucratic arm of the Prime Minister’s Office) warned that against the backdrop of the pandemic “there would be a rise in civil unrest” and “political unrest by malicious actors.”
The report, written by what’s called the Intelligence Assessment Secretariat, is summarized in a Feb. 16 confidential memo to senior officials. That 2021 report had also warned about a “breakdown of social cohesion.”
A year after that 2021 report, its cautions materialized as thousands of trucks and vehicles rolled into the country’s capital. They were filled with people pushed to the margins of society by vaccine mandates they refused to follow – out of a mix of government distrust and libertarian values or after being scared off by misinformation and conspiracy theories. Many had lost jobs and experienced rifts with family, and have described feeling angry, shamed and unheard.
The unrest first seized headlines roughly four months earlier when the federal government announced a planned vaccine mandate on Aug. 13, 2021. Two days later, Mr. Trudeau triggered a snap election.
Over the course of the campaign, he made a 180-degree turn on his previous concerns about vaccine mandates creating divisions and discrimination, and steadily turned up the dial on his rhetoric pushing for vaccines.
Later that month, James Bauder planted the seeds for a “Convoy for Freedom,” posting on Facebook about the possibility of a convoy parked on Mr. Trudeau’s “front step.”
That effort flopped but a second one – where he teamed up with Patrick King, Tamara Lich, Chris Barber, Brigitte Belton and Benjamin Dichter – did not. In early January, the idea for a convoy to Ottawa took off, rallying around the cross-border vaccine mandate aimed at truckers and other essential workers.
The protesters arrived in Ottawa on Jan. 28, directing their anger squarely at Mr. Trudeau, hurling expletives, waving profane flags, and disrupting daily life for Ottawa residents, including with around-the-clock honking. They remained lodged in downtown Ottawa for more than three weeks. At the inquiry, convoy leaders described a “love fest” full of unity, hugs, free food and dancing.
Before the protesters arrived, Mr. Trudeau called them a “small fringe minority” with unacceptable views. After they arrived, he said he wouldn’t go “anywhere near protests that have expressed hateful rhetoric, violence toward fellow citizens.”
The convoy leaders wore the Prime Minister’s words as badges of honour and urged protesters to “hold the line,” as official warnings to leave ramped up.
But only through the inquiry did the public learn that while the leaders encouraged others to put their trucks – and therefore their livelihoods – on the line, most of the convoy leaders did not. Mr. Barber removed his truck, ‘Big Red,’ from the “red zone” after the second weekend. Mr. King left his motorhome in a “secure location” and hitched a ride downtown. Ms. Belton left her big rig at home, as did Mr. Dichter.
Stephanie Carvin, an associate professor at Carleton University and a former federal intelligence analyst, said the convoy leaders have shown – at the protests and in the inquiry – that “they see reality entirely differently.”
“They’re not delusional,” she said, but added, “I’m not sure anything would have convinced them that they were causing harm.”
In his testimony last week, Mr. Trudeau pivoted on his earlier comments, expressing compassion for those who chose not to get vaccinated, saying he was moved by the “depth of hurt and anxiety” some people felt and the fears they expressed.
The Intelligence Assessment Secretariat underscored the misinformation behind some of those fears.
Over centuries, pandemics have been connected to protests and revolts, as the impact of an epidemic worsens inequality and the “psychological shock” can leave people believing “irrational narratives,” the bureau’s Feb. 16 report detailed.
But what separated the convoy protests from earlier revolts such as Montreal’s 1885 anti-vaccine-mandate riot – which had residents yelling “kill the vaccinators”– was a modern mix of social media and disinformation, as well as crowdfunding and cryptocurrencies, the report found.
Police services plagued by jurisdictional issues
During the protests, the first line of defence was the Ottawa Police Service. Officials who testified at the inquiry, as well as experts who watched the proceedings, detailed a cascade of failures at the local level that mushroomed as personal animosities and power struggles got in the way of police doing their jobs, as did staffing shortages and experience gaps.
The service planned for a single-weekend protest, at most, despite indications that it could last much longer and would not be a run-of-the-mill event, the inquiry has heard. (Before the convoy’s arrival, Ontario Provincial Police reports warned of the potential for a protracted event.)
What was already an inadequate plan to manage the protests before convoys arrived, then buckled under the unexpected volume of protesters and vehicles pouring into the city that first weekend. By the end of that weekend, police were unable to explain how they would end the demonstrations and were struggling to put together a new plan.
By Feb. 2, then-Ottawa police chief Peter Sloly told the Ottawa Police Services Board that there might not be a “policing solution” to the protests. His comment spurred public anger, though the former chief testified that it was widely misunderstood.
University of Ottawa associate criminology professor Michael Kempa said that the protests could and should have been managed through policing, but the police system in Ontario only functions if there are strong relationships between a police service, police board, partner agencies and the solicitor-general’s office.
The convoy protests stress-tested the system and it broke down, revealing a “weak system,” he said.
In an emergency situation, a police services board and a police chief are the only ones that can ask the OPP to take over when a police force is not providing “adequate and effective” policing, Prof. Kempa said. Mr. Sloly’s senior commanders believed he thought that other police services coming to Ottawa to help craft an enforcement plan illustrated a plot against him, the inquiry has heard.
Police stood by as protesters formed supply lines of fuel-filled jerry cans and indiscriminately set off fireworks near condos and office buildings. Yet Mr. Sloly testified that the chaos never met the threshold where he should have relinquished command. And then-Ottawa police board chair Diane Deans testified that she couldn’t recall if the board ever considered making a request to the OPP.
The chaos should have triggered an automatic threshold for the OPP to take control, but no such mechanism exists, Prof. Kempa said.
He said the province failed to pull all of the available levers within its emergency powers to help end the protests in Ottawa. While the province’s Feb. 11 emergency orders explicitly covered the blockade at the Ambassador Bridge in Windsor, they were less clear on the protest in Ottawa.
Had Ontario Premier Doug Ford done more, it also would have put Mr. Trudeau on “more sound legal ground” if those steps had not been sufficient and the federal Emergencies Act was still needed, he added.
Prof. Carvin said the Emergencies Act assumes all parties do their jobs, as expected, not that the Ottawa police would be “dysfunctional” or that Mr. Ford would decide “he didn’t want to get involved and kick it up to the federal government.”
“It assumed that the Ontario government would be working and solving this and it wasn’t. So what do you do?” she said.
During the protests, Mr. Trudeau privately referred to Mr. Ford as “hiding from his responsibility,” while both federal and municipal politicians expressed frustration that Ontario’s elected officials would not participate in a series of co-ordinating meetings and seemed to believe – falsely – that the federal government had jurisdiction in Ottawa.
Gaps in intelligence gathering
When the Emergencies Act came into force in 1988, it was meant as a tempered replacement of the War Measures Act. During parliamentary debate in late 1987, the Emergencies Act’s champion, then-minister Perrin Beatty, acknowledged that the “most contentious” section dealt with public-order emergencies, given concerns that it could be used to quash legitimate protest.
But Mr. Beatty reassured parliamentarians that declaring a public-order emergency – as Mr. Trudeau would do more than 30 years later – would require a “double test.” First, a threat to the security of Canada must exist. The Emergencies Act would take its definition of this from the Canadian Security Intelligence Service Act. “This fact alone should make us very cautious,” Mr. Beatty said. It would also require the definition of a national emergency – with several additional criteria – be met.
“I am sure all members of this House will appreciate that the standard established in this definition is very stringent, indeed,” he said.
The inquiry has heard that the protests in Ottawa and elsewhere did not rise to the level of a national-security threat, under the CSIS Act. Yet CSIS director David Vigneault testified that he recommended the act’s invocation – after receiving a legal opinion from the Justice Department that the Emergencies Act could take a broader interpretation than the CSIS Act.
On Feb. 14, about an hour before the act’s invocation was announced, Mr. Trudeau received a memo from Canada’s top public servant recommending the act’s use. A detailed threat assessment was meant to follow “under separate cover,” but it did not. Jody Thomas, national security and intelligence adviser, had sought that threat assessment earlier that day but she testified that it “fell through the cracks and we were overtaken by events.”
Wesley Wark, a senior fellow with the Centre for International Governance Innovation and an expert in national-security and intelligence issues, said this meant cabinet acted without a detailed, written threat assessment “formalized in front of them.”
“To me, that is something that should never be allowed to happen,” he said.
When the federal government decided that it needed to step in, he said, “they did so in an information environment in which they simply lacked good intelligence.”
In testimony and a separate interview with inquiry counsel, Ms. Thomas described several gaps in Canada’s intelligence ecosystem. She took up the role, which is meant to co-ordinate the national-security community and advise the Prime Minister, about two weeks before the convoys arrived in Ottawa.
Ms. Thomas did not receive intelligence from the multijurisdictional police program called INTERSECT, nor a series of crucial intelligence reports from the OPP. She received some, but not all, intelligence reports collected by the RCMP and said the RCMP should have been more forthcoming with information. Most of her intelligence during the convoy came from Integrated Terrorism Assessment Centre reports, which Mr. Wark has called notable for their “sheer generality.”
Interviewed alongside Ms. Thomas, Michael MacDonald, an assistant secretary to cabinet who advises on national security, said it was an issue that law-enforcement agencies “maintained distinct intelligence silos.”
Ms. Thomas also described a major gap in open-source intelligence. “No federal agency possessed the tools necessary for effective social media monitoring or the legal authorities to collect domestic intelligence,” Ms. Thomas and Mr. MacDonald noted during their interview.
The inquiry also heard about gaps in the definition – legally and legislatively – of national security.
The veil of solicitor-client privilege
Over and over during the past six weeks, the inquiry heard questions about whether the federal government met the legal standard required to invoke the act. The answer was not forthcoming, however, because of the invocation of solicitor-client privilege during federal officials’ testimony.
And while Mr. Trudeau and his government argue that the act was necessary and its legal standard met, others disagree. Soon after the act’s invocation, two groups – the Canadian Civil Liberties Association and the Canadian Constitution Foundation – filed legal challenges.
Another part of the threshold to invoke the act was raised far less at the inquiry. As Mr. Beatty reassured his colleagues decades ago, the Emergencies Act requires the presence of a national emergency that cannot be “effectively dealt with” under any other law. Asked about this in an interview with inquiry counsel, Attorney-General David Lametti “could not specify particular reports or inputs received by the [Department of Justice] regarding the effectiveness of other laws to deal with the protests and blockades.”
But he did say consultations took place.
Carissima Mathen, a professor of law at the University of Ottawa, noted that the Emergencies Act has multiple safeguards built in it, which could be one argument why the federal government is “not strictly bound to the national-security agencies’ interpretation” of threats. (For instance, it is a requirement of the act to hold an inquiry after its invocation.)
But, Prof. Mathen said, “this isn’t just [about] what is the correct interpretation of the reference to Section 2 of the CSIS Act? It’s were there reasonable grounds for cabinet to reach that conclusion?”
She also said that even though the legal opinion received by cabinet is shielded by solicitor-client privilege, it seems relatively clear what that opinion was, and added that there doesn’t seem to be a “huge amount” turning on it.
Prof. Carvin, meanwhile, said it is a problem that the government never released its full legal advice. “This is the national-security Super Bowl. This is as big as it gets. And if you’re trying to justify why you’re doing this, everything should be on the table,” she said.
While police and other institutions have learned lessons from the protests of last winter, Prof. Carvin said, the problems behind the protests are not going away.
“We’re going to have to deal with people who have an entirely different understanding of everyday world events, who just view the country that they’ve woken up to in such a different light.”
MARSHA MCLEOD AND MARIEKE WALSH
The Globe and Mail, December 1, 2022