MARIEKE WALSH, MARSHA MCLEOD AND BILL CURRY
Prime Minister Justin Trudeau said the threats to Canada’s national security from last winter’s convoy protests were both economic and violent and before he invoked the Emergencies Act the premiers were unable to suggest any alternative to using the sweeping powers to end the protracted demonstrations.
On Friday, the Prime Minister was the final witness to testify at the inquiry studying the act’s use. Mr. Trudeau made the ultimate decision to invoke the never-before-used act on his own on Feb. 14, with the goal of ending protests that gridlocked the capital and jammed several border crossings across Canada.
“I am absolutely, absolutely serene and confident that I made the right choice,” Mr. Trudeau said.
He testified that before he made the decision there was consensus to invoke the act from senior cabinet ministers and top security and civil service advisers. He called a memo from the country’s top bureaucrat in favour of triggering the powers “essential” to his decision – even though that memo lacked a threat assessment. And he told the inquiry that despite the two most serious border blockades resolving, it was his understanding that overall the protests were escalating, not dissipating.’
The Prime Minister testified in a packed hearing room in the heart of the capital – where big rigs and other vehicles dug in last January – as several convoy leaders watched from front-row seats. Convoys of protesters rolled into Ottawa on Jan. 28. The demonstrations soon spread to border crossings, including, most significantly, in Windsor, Ont. However, that blockade was cleared before the federal government invoked the Emergencies Act.
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Over six weeks of public hearings, thousands of documents and hundreds of hours of testimony have been presented to the Public Order Emergency Commission. It is led by Justice Paul Rouleau.
The critical question that Mr. Rouleau is studying is whether the government met the strict legal threshold to invoke the act.
The Emergencies Act states that to declare a public order emergency, there must be “threats to the security of Canada” that are so serious they mark a national emergency. The act’s definition of those threats comes from the Canadian Security Intelligence Service Act.
The government has acknowledged that it did not meet the definition of threats under the CSIS Act but maintains it still met the legal threshold for invoking the act.
Mr. Trudeau’s government has not released the specific legal opinion explaining why it believed it could use a different threshold for invoking the act. And Mr. Trudeau has refused to waive solicitor-client privilege on the advice.
During his testimony on Friday, Mr. Trudeau agreed that the threshold to invoke the Emergencies Act cannot be lower than the CSIS Act. But he also argued that when deciding to invoke the Emergencies Act, the federal government can consider a wider set of factors than CSIS does in assessing whether there is a threat to the security of Canada. He did not, however, account for how the federal government factored in or considered the finding that the protests did not reach the CSIS Act threshold.
To declare a public order emergency under the act, the governor-in-council, cabinet and the Prime Minister are making that determination, Mr. Trudeau testified. “The context within which we look at this definition is very different from the deliberately narrow frame that CSIS is allowed to look at what inputs it can take in.”
Mr. Trudeau argued there were “threats of serious violence” during the protests.
Asked what those threats were, he cited the “weaponization of vehicles,” with cars ramming other cars at the Coutts, Alta. blockade; active resistance to police and “trucks used as potential weapons” in Ottawa; and the use of “children as human shields.” He also referenced a cache of firearms seized in Coutts, as well as the presence of people “promoting” ideologically-motivated violent extremism at the protests, which he said had the danger of triggering a “lone wolf” actor.
The rare testimony from a sitting Prime Minister underscored the significance of the inquiry. Throughout the hearings, Canadians have, for the first time, seen the private text messages between cabinet ministers and senior political staff that show the pressure the federal government was under during the protests, as well as their own personal fears.
By the third weekend of protests in Ottawa, on Feb. 11 and Feb. 12, Mr. Trudeau told the commission in an interview ahead of his testimony that the government felt it was the “right moment” to invoke the act. From Feb. 10 to Feb. 13, Mr. Trudeau chaired several Incident Response Group meetings and one full cabinet meeting.
According to a summary of his interview, Mr. Trudeau said that through the discussions the government determined that the only way to give police new powers in a timely manner was by invoking the Emergencies Act because the legislative process would have taken weeks.
The Prime Minister “had real concerns, including concerns about armed elements in Coutts and concerns about children and guns or other weapons that may have been in the trucks in Ottawa,” the summary says.
“There wasn’t a sense that things were dissipating,” Mr. Trudeau testified. He noted that even as things were resolving at the Ambassador Bridge and in Coutts, there was talk of more blockades in Fort Erie, Ont., New Brunswick, Quebec, and B.C.
“There was a sense that this was a broadly spread thing. And the fact that there was not yet any serious violence that had been noted was obviously a good thing, but we could not say that there was no potential for threats of serious violence – for serious violence to happen over the coming days.”
“We were seeing things escalate,” Mr. Trudeau said.
The Prime Minister also testified that another key factor in his decision was that he did not see a viable alternative.
“If I had been convinced that other orders of government, or any other law in Canada was sufficient to deal with this emergency, then we wouldn’t have met the threshold,” he said.
After his cabinet meeting on Feb. 13, Mr. Trudeau was still legally required to consult with the premiers. He had the meeting on the morning of Feb. 14 and the government has maintained there was no final decision before then. But text messages from cabinet ministers at the time show that by the end of the day on Feb. 13 they expected the act would be invoked.
In his talk with premiers, the Prime Minister told the inquiry in his pre-interview that some provinces wanted the act only invoked in Ontario, “ignoring that it was a national emergency.” He noted that limiting the powers to Ontario did not address that vehicles from across the country were in Ottawa and Ontario could not revoke those licenses or vehicle insurance.
Mr. Trudeau also highlighted what he saw as a contradiction: that premiers who had urged federal action and help prior to the act’s invocation still opposed his decision to invoke the sweeping powers.
“The Prime Minister said that he was open to hearing from the premiers that they had a solution and that he did not need to invoke the Emergencies Act. He did not hear that,” the interview summary tabled at the inquiry said.
One of the most contentious powers used under the act was the ability to freeze the bank accounts of protesters without due legal process. The commission has heard that financial institutions primarily relied on a list of individuals provided by the RCMP when deciding which accounts to freeze. The service also alerted the banks when to unfreeze the accounts.
All accounts that were frozen using powers under the Emergencies Act were unfrozen by Feb. 24, according to a federal government document tabled with the inquiry, although some remained frozen because of an unrelated court order.
Around 280 accounts, totalling about $8-million in assets, were frozen using powers under the Emergencies Act, according to a Finance Department report tabled with the commission. The number of people affected, however, was less than 280 because some people had multiple accounts frozen.
Justin Trudeau was directly challenged by Sujit Choudhry, a lawyer who cross-examined the Prime Minister on behalf of the Canadian Constitution Foundation, to waive solicitor-client privilege and allow the release of the internal legal opinion that concluded, according to the government, that the threshold was met for the invocation of the Emergencies Act.
“Would you advise that that opinion be released in the interest of transparency?” he asked.
Mr. Trudeau did not answer the question and instead waited for Government of Canada lawyer, Brian Gover, to oppose the question.
Mr. Choudhry asked the Prime Minister why the government has never previously stated that the definition of threats is broader under the Emergencies Act.
“I put it to you that not until this commission has the Government of Canada ever publicly communicated that the threshold for declaring or determining threat to national security is different under the Emergencies Act than under the CSIS Act. Not once. Why is that sir?” he asked.
The Prime Minister did not directly answer the question.
“It’s in the first line of the public order emergency section of the Emergencies Act,” Mr. Trudeau replied. “That the governor in council can, on reasonable grounds, declare a public order emergency, if in their reasonable opinion, I’m paraphrasing, obviously, there are threats to the security of Canada and it is a national emergency. That doesn’t mention the CSIS threshold anywhere.”
However, the section of the act that the Prime Minister was paraphrasing, loops back to definitions contained elsewhere in the act. Those definitions say that a public order emergency “means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”
The act goes on to say that “threats to the security of Canada has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act.”
Courtesy:Globe and Mail