Three police forces had doubts about use of Emergencies Act

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Documents tabled at the Emergencies Act inquiry reveal a discrepancy between RCMP Commissioner Brenda Lucki’s public defence of the sweeping legislation and her private advice to the government that the police had “not yet exhausted all available tools” when the act was invoked.

Commissioner Lucki delivered that assessment to Public Safety Minister Marco Mendicino’s office just after midnight on Feb. 14 – only hours before Prime Minister Justin Trudeau invoked the act.

The e-mail adds to a growing body of evidence from police forces, presented to the inquiry, that challenges the federal government’s argument that the act was needed to end more than three weeks of protests that threw the country’s capital into chaos, upended daily life, and subjected residents and businesses to uncontrolled and at times dangerous protests.

The Ottawa police and the Ontario Provincial Police have already told the inquiry that they did not need the act to get the protests under control.

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On Tuesday, the inquiry was also presented with evidence that a top federal civil servant and the police had agreed to a proposed negotiation with the protest leaders but that it was rejected by the government on Feb. 12. Before those talks Mr. Trudeau had publicly said negotiations with the convoy leaders were a “non-starter.”

Mr. Mendicino played down the significance of Commissioner Lucki’s comments on Tuesday and dismissed the suggestion he ignored her advice, saying the government listened to an “array of advice” at the time.

He added that her advice to the government before invoking the act doesn’t change subsequent testimony to a parliamentary committee on May 10, after the protests ended, where she said it gave police “the tools that we needed to get the job done quickly.”

Mr. Mendicino told reporters in Ottawa that the government also consulted the provinces on its decision to invoke the act. ”We took the decision because it was necessary,” he said.

The Public Order Emergency Commission is studying Mr. Trudeau’s decision to make an emergency declaration in an attempt to end last winter’s anti-government, anti-vaccine mandate protests. 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.

Commissioner Lucki sent her Feb. 14 e-mail to Mr. Mendicino’s chief of staff, Mike Jones. In it, she said her team was in discussions with the Justice Department to give input on the act. She also gave examples of additional policing powers that could be “useful” if the act was invoked. Those options included prohibiting public assembly in some areas and commandeering tow trucks to assist police.

But at the end of her e-mail she said “we have not yet exhausted all available tools that are already available through the existing legislation.”

Charges could be laid under existing powers, she said, and the province had just enacted its emergency powers which would “help in providing additional deterrent tools to our existing toolbox.”

The RCMP did not provide a statement on Tuesday addressing the discrepancy between Commissioner Lucki’s public comments after the protests ended and private advice to government in advance of the emergency declaration.

The government has said the act was needed because it 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.

But other police agencies have said it was not crucial and despite early dysfunction within the Ottawa police service, a plan to end the protests had been developed just before Mr. Trudeau made the emergency declaration.

The Ontario Provincial Police told the commission at the beginning of the public hearings two weeks ago that the act was not needed. In testimony on Friday, retired OPP officer Carson Pardy, who was chief superintendent during the February protests, said the act helped but was not necessary. For example, he said officers already had the authority to tow and seize vehicles and prevent people from going into the protest zone.

And this week, interim Ottawa police chief Steve Bell said while the Emergencies Act was very helpful, it wasn’t needed.

“In the absence of the invocation of the Emergencies Act, the OPS, the OPP and the RCMP, as part of a unified command, were going to clear the protests,” he said.

For example, separate evidence presented through an interview summary of Ottawa police Superintendent Robert Bernier said he told commission lawyers that police had secured tow trucks before the act was invoked.

On Tuesday the commission was also told that the OPP, RCMP and the top civil servant in Mr. Mendicino’s department had struck a potential deal but the government backed out just before the act was invoked. In the proposal, protest leaders would be offered a meeting with the federal government in exchange for them calling on others to leave the protest site.

According to evidence tabled Tuesday, on Feb. 10 then-deputy minister of public safety Rob Stewart asked OPP Inspector Marcel Beaudin for an urgent meeting to talk about the possibility of “federal-level engagement with the protesters.”

By the next day, a proposal was developed. The document, tabled at the commission, suggested a police liaison would provide protest leaders with a written commitment to a meeting with government at a later date.

“The deal would be: leave the protest and denounce unlawful activity and you will be heard,” the proposal said.

By Feb. 13, the deal had fallen apart. That day, Mr. Stewart told the inspector he was unable to secure a commitment from the government to meet with protesters, according to a summary of an interview Insp. Beaudin gave to the commission.

When asked by commission counsel on Tuesday why the proposal did not go forward – given the OPP and Ottawa police supported it and the RCMP was “provisionally” on board – Insp. Beaudin said he was not involved in those conversations.

During cross-examination, Brendan Miller, a lawyer representing convoy organizers, referenced a Feb. 12 e-mail from Mr. Stewart in which the deputy minister tells Insp. Beaudin there is a “big meeting” that afternoon – where the proposal will be discussed.

Mr. Miller said that was a cabinet Incident Response Group meeting and the proposal was presented.

Minutes from the Feb. 12 meeting, chaired by Mr. Trudeau, appear to confirm Mr. Miller’s comment. The minutes, which are heavily redacted, were released in August.

They say Mr. Mendicino gave an update on “potential engagement with leaders of the blockades” with the “objective of de-escalating the situation and encouraging protesters to leave.”

The potential negotiation described by Insp. Beaudin at the commission is similar and its proposed plan notes the objective is to “de-escalate and encourage people to leave unlawful protests.”