The Emergencies Act’s ‘very high threshold’ was met, commissioner rules in major report – National

The federal government met the “very high threshold” for invoking the Emergencies Act for the first time in Canadian history during the so-called “Freedom Convoy” protests in Ottawa last year, the public inquiry that probed Prime Minister Justin Trudeau’s decision has found.

Justice Paul Rouleau, who led the independent public inquiry into the federal government’s use of the emergency powers, released his final report Friday afternoon.

In the over 2,000-page report, Rouleau called the “Freedom Convoy” a “singular moment in history” exacerbated by the COVID-19 pandemic, as well as online misinformation and disinformation.

Had various police forces and governments been prepared for and anticipated an event like it, the “emergency that Canada ultimately faced could likely have been avoided.”

“Unfortunately, it was not,” Rouleau said in the report.

“I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance. The state should generally be able to respond to circumstances of urgency without the use of emergency powers. It is only in rare instances, when the state cannot otherwise fulfill its fundamental obligation to ensure the safety and security of people and property, that resort to emergency measures will be found to be appropriate.

“As for the measures cabinet put in place in response to the emergency, I conclude that while most of the measures were appropriate and effective, others fell short,” citing the power to suspend vehicle insurance as counterproductive.

While there was failure in policing, Rouleau said the ‘Freedom Convoy” protests and response can also be seen as a “failure of federalism.” Collaboration between federal and provincial governments during a crisis is essential, he added.

“Responding to situations of threat and urgency in a federal system requires governments at all levels, and those who lead them, to rise above politics and collaborate for the common good. Unfortunately, in January and February 2022, this did not always happen,” he said. Rouleau also said he did not accept the testimony of protest organizers who described the demonstrations as lawful and peaceful.

The report details Rouleau’s analysis of the evidence presented during public hearings last fall and makes 56 recommendations directed at improving police operations and the use of the Emergencies Act itself. The report was tabled in the House of Commons just after noon eastern standard time and Prime Minister Justin Trudeau is scheduled to hold a media availability at 3 p.m. Eastern.

Trudeau took the unprecedented step to invoke the Emergencies Act — the successor to the controversial War Measures Act — on Feb. 14, 2022. By that time, the convoy protest in Ottawa was grinding into its third week, and like-minded protests had popped up at Canada-U.S. border crossings in Windsor, Ont., and Coutts, Alta.

Trudeau defended his decision during his testimony at the commission, suggesting the situation was “out of control” and had a “potential for violence.”

“What if the worst happened in those following days (after Feb. 14)? What if someone had gotten hurt?  What if a police officer had been put in the hospital?” Trudeau put to the commission.

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“What if, when I had the opportunity to do something, I had waited and we had the unthinkable happen over the coming days, even though there was all this warning?”

Rouleau’s commission sought to answer three central questions: why the Liberal government invoked emergency powers, the circumstances leading up to that decision, and if the sweeping measures were both appropriate and effective in quelling last year’s convoy protests.

But the evidence presented between Oct. 13 and Dec. 2 last year included much more, including dysfunction at the top of the Ottawa Police Service; the impact the convoy had on citizens in various communities; and debates over whether the situation presented a legitimate national security threat.

Rouleau heard from many of the political and policing figures involved in responding to the protests — although notably not Premier Doug Ford or members of his cabinet — including Prime Minister Justin Trudeau, several senior federal cabinet ministers, municipal politicians and senior national security and law enforcement officials.

Several organizers of the convoy protests themselves offered colourful takes on the meaning of the demonstrations and perceived federal overreach in shutting them down.

In all, the commission heard from 76 witnesses over 36 meetings and considered thousands of documents that gave an unprecedented view into the political and policing posture toward the protests.

Those documents included unguarded text messages between senior cabinet officials — Justice Minister David Lametti calling former Ottawa Police Service Chief Peter Sloly “incompetent” in a message to a cabinet colleague, for instance. They also included minutes from closed-door meetings at Ottawa City Hall, a surreptitious recording of Watson discussing the OPS with then-police board chair Diane Deans, and intelligence reports from the Ontario Provincial Police documenting the convoy protests’ evolution.

Another central question expected to be addressed by Rouleau’s report is whether the convoy protests — while undoubtedly disruptive — rose to the level of a national security threat.

Convoy organizers and the lawyers representing them repeatedly characterized the demonstrations as “peaceful” and “non-violent” — a characterization that was disputed by several witnesses representing Ottawa community groups.

Deputy Prime Minister Chrystia Freeland testified that the blockades of Canada-U.S. border crossings presented a threat to Canadian economic interests with the country’s largest trading partner.

But the Emergencies Act has a clear definition of security threats that would warrant the use of emergency powers, tied to the language used in the Canadian Security Intelligence Service (CSIS) Act. Those threats include espionage or sabotage of Canadian interests, serious violence motivated by ideological or religious beliefs, or an attempted overthrow of the Canadian government. Lawful protest and dissent are excluded from the definition.

CSIS Director David Vigneault told the commission that he did not believe the convoy protests constituted a national security threat under the CSIS Act, but that he nevertheless advised Trudeau to invoke the Emergencies Act — suggesting he understood the Emergencies Act to have a “broader” definition of security threats than those CSIS operates under.

That opinion is not universally shared.

Carleton Prof. Leah West, a former Department of Justice lawyer who worked on national security files,  pointed out that “unlawful and even violent protests” are not necessarily national security threats under the law.

“Did we label the G8 and G20 protests in Toronto a national security or terrorist threat? … Similarly, we have never labelled blockades and other non-violent but illegal means of obstructing critical infrastructure as terrorism,” West testified.

— with files from Motorcycle accident toronto today’ Rachel Gilmore and the Canadian Press.