Ottawa Police Services Inspector Robert Bernier responds to questions while appearing as a witness at the Public Order Emergency Commission in Ottawa on Oct. 26, 2022.Sean Kilpatrick/The Canadian Press
The commander responsible for the police operation that ultimately cleared Ottawa’s protracted convoy protests, told the Emergencies Act inquiry that he did not need the sweeping legislation and did not ask for the extra enforcement powers.
In contradictory testimony on Wednesday at the Public Order Emergency Commission, Ottawa police Superintendent Robert Bernier first said repeatedly that he could not say whether the act was necessary and then hours later repeatedly said it was not required.
The commission is tasked with determining whether the federal government followed the law when it invoked the act and declared a public order emergency. Just 10 days into the public hearings, and with dozens more witnesses still set to testify, Commissioner Paul Rouleau has already been presented with conflicting evidence about the threats posed by the protesters and whether police needed the sweeping powers to end the protest in Ottawa.
Supt. Bernier’s latter testimony mirrored previous comments from interim Ottawa police chief Steve Bell and the Ontario Provincial Police.
Those assertions though were challenged by a lawyer for the government, Donnaree Nygard. She tabled documents that showed the OPP needed the powers under the Emergencies Act to procure tow trucks in time for the police operation that began on Feb. 18.
According to an interview summary tabled at the inquiry, former Ottawa police chief Peter Sloly told the commission lawyers that he discussed the police force’s needs with federal and provincial officials and he suspected those discussions informed the decision to invoke the Emergencies Act. In those talks he said the availability of tow trucks was a top concern.
He also said his force couldn’t have done anything materially different in its response to the protests.
Supt. Bernier was the Ottawa police service commander responsible for crafting and implementing the plan that finally ended the disruptive and, at times, dangerous protests in the capital. The plan was created by an integrated group of police forces, which also included the OPP and RCMP. It was developed before Prime Minister Justin Trudeau invoked the Emergencies Act on Feb. 14 but it was only implemented after the emergency declaration and police used some of the powers it granted in the operation.
In response to a quick succession of questions on Wednesday afternoon Supt. Bernier told lawyers representing groups that oppose the invocation of the Emergencies Act that police would have conducted their operation to end the protests whether or not the act was in place; that he believed police had enough powers without the act; and that he never told his superiors he needed more powers.
“I would say they were beneficial but to say necessary, I would say no,” Supt. Bernier told Canadian Civil Liberties Association co-counsel Ewa Krajewska.
Only hours earlier, Supt. Bernier told senior commission counsel Frank Au that he couldn’t answer the same question.
“Were those measures necessary for ending this occupation or protest?” Mr. Au asked.
“Hard for me to say,” Supt. Bernier replied. “I did not get to do the operation without it.”
He went on to say police were planning to use authorities granted to police under common law to shut down the protests. Supt. Bernier said that has worked with other protests, but he couldn’t say what “complications” would have arisen without the Emergencies Act powers.
Supt. Bernier left the commission through a side door on Wednesday and did not answer Globe and Mail questions about the discrepancy in his statements when approached outside. The RCMP have also not explained why Commissioner Brenda Lucki publicly said the act was needed but privately cautioned the government that other tools were available.
The contention from multiple police forces that the protests could have been ended without the Emergencies Act is being met with incredulity by some.
“We were three weeks into it, and there had been no effective action taken by the police. So if they could do something, do it earlier,” said Paul Champ, a lawyer representing a group of residents and businesses at the commission.
His group does not take a position on whether the act was needed but it is trying to understand why police didn’t act much sooner if they had the legal tools that they needed.
“It was incompetence at the city level and indifference at the provincial level and confusion at the federal level,” he said. The result was people in Ottawa were “stuck in a hellscape” for more than three weeks.
Under the Emergencies Act, the federal government issued orders that designated “protected areas” around critical infrastructure and Parliament Hill; allowed banks to freeze private and corporate accounts without due process; allowed police to compel tow-truck companies to help clear blockades; and subjected crowdfunding companies to anti-money laundering and terrorist financing rules.
The protests in Ottawa began on Jan. 28. Police have told the Public Order Emergency Commission that the demonstrations in the capital were lawless and included violent behaviour.
After more than three weeks of failed police enforcement, the government maintains it made the right decision to invoke the act. But it had to meet certain legal thresholds to trigger the legislation and the inquiry has been presented with a range of opinions and evidence about whether the crisis in February met the legal conditions for the emergency declaration.
According to the Emergencies Act, a public order emergency can be declared only when threats to the security of Canada are so serious that they constitute a national crisis that cannot be effectively dealt with under any other existing law.
In an interview summary with Supt. Bernier and commission lawyers that was tabled prior to his testimony on Tuesday and Wednesday, Supt. Bernier told the lawyers that police had already lined up 34 tow trucks to assist in the final police operation before the act was invoked.
However, Ms. Nygard said those deals “fell through.”
Ms. Nygard presented the commission with letters sent by OPP Commissioner Thomas Carrique to Ontario’s deputy solicitor-general Mario Di Tommaso on Feb. 22. It said “there would simply not be enough time” before the Feb. 18 operation began to separately contract towing companies to come to Ottawa. It went on to say the OPP was “engaging” tow truck companies under the Emergencies Act.
The documents also included a letter from Commissioner Carrique to selected towing companies seconding their services under the Emergencies Act orders.
Supt. Bernier said he was not aware that the act had been used to obtain tow trucks.
Commissioner Carrique is expected to testify at the committee on Thursday. Chief Sloly is expected to testify on Friday.
In his interview ahead of testifying, Chief Sloly told commission lawyers he was trying to operate in the midst of turmoil within Ottawa police ranks, the police services board and city council as public pressure was mounting to end the demonstrations.
According to the interview summary, Chief Sloly never received any information from his two deputy chiefs, his incident commander of the OPP, RCMP or any other partner agency that the police plan to allow hundreds of trucks downtown “was wrongheaded or contrary to partners’ expectations.”
He also said he only learned that the Parliamentary Protective Service had concerns after the protesters had arrived. The interview summary also says that prior to the protesters’ arrival, the OPP published a situational report that said the Ottawa police’s pre-arrival plan was “robust and fit for purpose.”
No one told Chief Sloly that the pre-arrival plan was out of sync with the intelligence assessment, according to the interview summary.
Chief Sloly resigned as police chief on Feb. 15, a day after the Emergencies Act was invoked, citing a “growing lack of confidence” in his leadership.
With a report from The Canadian Press