Ottawa eyed using Emergencies Act early in protest, RCMP texts suggest

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The RCMP talked about the federal government using the Emergencies Act just one week into the protests that gridlocked Ottawa, the inquiry looking into the use of the act was told Thursday.

The revelation came on a day when the Public Order Emergency Commission heard eight hours of testimony from OPP Commissioner Thomas Carrique, who said the national-security threat of the protests never rose to the level defined by Canadian Security Intelligence Service, the threshold contained in the Emergencies Act.

Text messages between the Commissioner and his RCMP counterpart, Brenda Lucki, also revealed they discussed the possibility of bringing in the military as special constables, with Commissioner Lucki suggesting having military members wear RCMP uniforms.

In the texts she warned about the use of the Emergencies Act and said it could mean the RCMP or OPP would have to lead the police operation in Ottawa – which she did not want. Later in the texts she suggested the federal government could retroactively ask for a letter of support for the Emergencies Act from the OPP.

Commissioner Lucki’s texts also show that she twice asked Commissioner Carrique about using a different messaging app that she said does “not store deleted messages.”

Justice Paul Rouleau is tasked with assessing whether the federal government erred when it invoked the act to shut down the protests, but he has been presented with an array of conflicting evidence on whether the government met the legal threshold for the declaration, whether the sweeping federal legislation was needed and whether the police used the powers it enabled.

Public hearings on use of Emergencies Act: What to know about the commission and what’s happened so far

The Ottawa police and OPP have said the act was not needed to end the protests in February but evidence shows police relied on the extra powers granted under it in the police operation that cleared the convoy out of the capital.

According to the 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. The act relies on the definition of a security threat in the Canadian Security Intelligence Service Act.

As far back as March, Commissioner Carrique has said the protests were a “threat to national security.” On Thursday, he repeated that assessment but added the caveat that his conclusion relied on Public Safety Canada’s definition of a national security threat and not the more narrow definition outlined in the CSIS Act.

“The term threat in a strategic intelligence report is to indicate something could happen. This is not about establishing a threshold as defined in the CSIS Act,” he told the inquiry.

“I think national security is much more complex and broad than the threat to the security of Canada that’s confined in the CSIS Act,” he added. The Public Safety Canada definition includes considerations for the adverse economic effects of disruptions to critical infrastructure, including border crossings, Commissioner Carrique said.

He said the OPP consulted with CSIS and the RCMP when it came to the conclusion that the protests did not meet the definition of a security threat contained in the CSIS Act. Commissioner Carrique did not specify when they reached that conclusion, but he confirmed to commission counsel Eric Brousseau that after the OPP wrote in a Feb. 7 intelligence report that the Ottawa protests were “potentially a national security threat,” CSIS contacted the provincial police force because it was concerned about that phrasing.

In subsequent cross-examination, Commissioner Carrique said that up to the day before Prime Minister Justin Trudeau invoked the Emergencies Act, no federal civil servant had told the Commissioner there was a credible threat, or reasonable grounds to believe a threat existed, as defined by the CSIS Act.

However, Wesley Wark, an expert in national security and intelligence issues, told The Globe that as the head of the Ontario police force, Commissioner Carrique “would not be in possession of all the facts and intelligence about events spanning the country.” For example, Mr. Wark, who is a senior fellow with the Centre for International Governance Innovation, noted that the border blockade in Coutts, Alta., contained a real threat of violence, according to the RCMP.

He added that the decision to invoke the Emergencies Act is ultimately a political decision and not a choice that law enforcement or intelligence agencies get to make.

The Emergencies Act was invoked on Feb. 14. By then, Ottawa had gone through almost three weeks of out-of-control protests that shuttered businesses and upended life for residents in the city’s core. Text messages from Commissioner Lucki show that the federal government was fed up and had lost faith in the Ottawa police more than a week before making the emergency declaration.

In texts on Feb. 5, she told Commissioner Carrique she was trying to “calm” federal ministers who were watching a second weekend of disruptive convoy protests. She said allaying their concerns was “not easy” as they looked at cranes, structures, horses and bouncy castles in downtown Ottawa, and the federal government wanted to see police enforce the law.

The government of Canada is “losing/lost confidence” in the Ottawa police, she wrote. “If they go to the Emergency Measures Act, you or [I] may be brought in to lead.”

That’s “not something I want,” she said.

The Emergency Measures Act was replaced by the Emergencies Act in 1988.

In response to her comments, Commissioner Carrique asked her for a call, which she declined because she was speaking with the ministers while texting him. “Any suggestions for calming them?” she asked.

“You don’t want to be on this call,” she said later in the text conversation. “Not good.”

The texts span three weeks in February and end after the police operation that cleared the protests between Feb. 18 and Feb. 20.

On Feb. 19 she told her OPP counterpart that the federal government could ask them for a letter supporting the use of the Emergencies Act retroactively.

“Has Minister Blair hit you up for a letter to support the EA?” she asked Commissioner Carrique.

He replied that he had not and the commissioners then agreed to a telephone call.

Bill Blair is the Emergency Preparedness Minister and a former police chief. His spokesperson Annie Cullinan told The Globe Thursday, “Minister Blair did not seek a letter of support from Commissioner Carrique or Commissioner Lucki, nor did anyone from our office.”

In a text conversation with Commissioner Carrique on Feb. 13, Commissioner Lucki asked him whether he sees a role for the Canadian Armed Forces (CAF) in response to the convoy protests, for example, with keeping sites secure once protests have been cleared.

Commissioner Carrique responded that he would “rather not” see the military having a role outside of government properties. But he adds that they could use “special constables controlled by police for unarmed patrols.”

“It’s funny you say that,” Commissioner Lucki replied. “I was thinking maybe we use CAF but in our uniforms as unarmed auxiliaries or [special constables].”

Ten days earlier Mr. Trudeau had told reporters that a military response to the protests in Ottawa was “not in the cards.”

The RCMP have not provided any statements this week in response to questions from The Globe about evidence from Commissioner Lucki. On Thursday the RCMP did not provide a response to address Commissioner Lucki’s comment about a letter of support for the Emergencies Act or her comments about deleting messages.

This week the commission is hearing from police commanders who were involved in addressing the convoy protests in Ottawa. On Friday, former Ottawa police chief Peter Sloly will testify. He resigned during the protests on Feb. 15.

Minutes from a meeting with RCMP and OPP commanders on the same day show Commissioner Lucki told the group she did “not trust” Mr. Sloly’s leadership any more.

“We’ve told Peter that he needs to succeed as his failure empowers the protesters,” Commissioner Lucki said according to the minutes.

Next week the commission will hear from protest leaders who were in Ottawa. It will then hear from witnesses linked to border-crossing blockades and finally hear from Mr. Trudeau, other federal cabinet ministers and CSIS director David Vigneault.