Trudeau’s use of Emergencies Act was appropriate, inquiry finds

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Prime Minister Justin Trudeau’s use of the Emergencies Act to quell last winter’s convoy protests was appropriate, but the emergency declaration could have been avoided if not for failures and missteps by police and government officials, an inquiry has found.

Those errors were committed by a wide range of players, including the Ottawa Police Service, Ontario Premier Doug Ford and Mr. Trudeau himself, the inquiry’s commissioner, Justice Paul Rouleau, concludes in his final report, which was tabled in the House of Commons on Friday.

The report catalogues the convoy protesters’ actions and motivations, the jumbled reactions and failures of police leaders and politicians, and breakdowns in communication that occurred at all levels. These things combined to allow the protests to spiral out of control, it says.

“I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance,” Justice Rouleau writes in the conclusion to the five-volume, 2,092-page product of the 10-month inquiry, known as the Public Order Emergency Commission. Its task was to investigate the circumstances leading to the government’s decision to invoke the Emergencies Act on Feb. 14, 2022.

“The Freedom Convoy was a singular moment in history, in which simmering social, political, and economic grievances were exacerbated by the COVID-19 pandemic, shaped by a complex online landscape rife with misinformation and disinformation, and unleashed in a torrent of political protest and social unrest,” Justice Rouleau writes.

For about three weeks in January and February of last year, the anti-government, anti-vaccine-mandate protests gridlocked the capital and clogged several border crossings. The inquiry heard hundreds of hours of witness testimony and delved into thousands of pages of document disclosures.

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The Emergencies Act had never been used before, and it granted the government extraordinary temporary powers. The legislation requires a public inquiry to be held whenever it is invoked. Justice Rouleau’s report includes 56 recommendations to police agencies and government. It was delivered just days before the legally binding deadline of Feb. 20.

One of the most contentious questions with which Justice Rouleau had to grapple was whether the protests met the legal threshold required for the government to declare a public order emergency. The law says the situation must rise to the level of a national emergency caused by a threat to the security of Canada. And it says the definition of such a threat is the one contained in the Canadian Security Intelligence Service Act.

Civil liberties groups have argued that the convoy protests did not meet the threshold, in large part because CSIS director David Vigneault told the inquiry he had advised the government that the demonstrations did not present a threat to the security of Canada. Even so, he said, he still advised officials to invoke the Emergencies Act.

The government believed that it could look at more factors than CSIS could when deciding whether something constituted a national security threat, because they are different decision-makers with different purposes. Justice Rouleau agreed with this.

Over all, he writes in his report, there was “credible and compelling information” to support a reasonable belief that the protests posed a threat to the security of Canada.

The information available to cabinet when it made the decision to invoke the act included evidence of the presence of ideologically motivated extremists at the protests, threats against public officials and fear of a “lone wolf” attack, the report notes.

In brief remarks in Ottawa following the report’s release, Justice Rouleau said he did not arrive at his conclusion easily, and that the factual basis for his determination was not “overwhelming.”

“Reasonable and informed people could reach a different conclusion,” he said.

He did not take any questions from journalists.

At a news conference in Ottawa on Friday, the Prime Minister said the report was a vindication of his government’s decision to declare an emergency. Still, he said, he did not relish invoking the act. He added that he only did so in response to the real risks presented by the convoy.

Mr. Trudeau said he regretted describing the protesters during a January, 2022, news conference as a “fringe minority.” Justice Rouleau said the Prime Minister’s rhetoric served to “energize the protesters, hardening their resolve and further embittering them toward government.”

“I wish I had said that differently,” Mr. Trudeau said on Friday.

The Prime Minister said his government will issue a response to the inquiry’s recommendations within a year – the same timeline recommended by Justice Rouleau.

While the Prime Minister struck a conciliatory tone, Conservative Leader Pierre Poilievre lambasted Mr. Trudeau at a Friday news conference in Calgary and blamed him for the entirety of the convoy protests.

“The only reason that we had this emergency is because Justin Trudeau wanted it to happen,” Mr. Poilievre said. “This was an emergency that Justin Trudeau created, by attacking his own population.”

The Conservatives opposed the invocation of the Emergencies Act. At the time, Mr. Poilievre said that he supported the anti-vaccine-mandate protests in Ottawa, but that individuals behaving unacceptably should be held accountable.

In his report, Justice Rouleau rejects the convoy organizers’ characterization of the protests as peaceful. “The bigger picture reveals that the situation in Ottawa was unsafe and chaotic,” he writes.

“There was disregard for both the law and the well-being of the people of Ottawa.”

A series of small and large policing failures contributed to a situation that spun out of control, he writes. “Lawful protest descended into lawlessness, culminating in a national emergency.”

And yet, he found that “many, and perhaps most” protesters had sought to participate in legitimate and lawful protests.

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The justice’s findings challenge the position put forward by provincial, federal and municipal police forces, all of which believed the emergency declaration was not needed to bring the protests under control, according to evidence presented at the inquiry.

Justice Rouleau identified many issues in the Ottawa Police Service’s response to the protests. He says in the report that the service should have given more weight to intelligence, particularly from the Ontario Provincial Police, that contradicted the trajectory of the plan Ottawa police had initially developed. That strategy was based on the incorrect belief that the protests would not last more than a weekend.

The report also criticizes RCMP Commissioner Brenda Lucki. Justice Rouleau takes issue with her communication failures but writes that they didn’t make a difference.

On the night before the act’s invocation, Commissioner Lucki did not inform two cabinet-level meetings that she felt there were still things police could do to bring the protests under control, without additional powers from the Emergencies Act.

Justice Rouleau’s report directs sweeping criticism at Canada’s political class for failing to co-ordinate and co-operate across different levels of government. The events of last winter “can also be seen as a failure of federalism,” he writes.

He writes that it was unfortunate that Mr. Ford did not speak with Mr. Trudeau until Feb. 9, by which point the protests had continued for about two weeks. During the protests, Mr. Trudeau accused Mr. Ford of “hiding,” as the provincial leader refused to attend a series of tripartite meetings meant to ensure intergovernmental collaboration. The report calls Ontario’s absence “troubling.”

It also points out that Mr. Ford and Sylvia Jones, who was at the time his solicitor-general, refused to testify at the inquiry.

Invoking the act allowed the federal government to issue emergency orders without requiring Parliament to pass new laws. Those orders allowed it to freeze protesters’ bank accounts without due process, prohibit public assemblies, force tow-truck drivers to remove protesters’ vehicles from city streets, and designate a wide array of spaces as “protected.”

Justice Rouleau found that most of the orders were effective and appropriate, including the most controversial: the freezing of protesters’ financial assets. But the government should have created a specific “delisting mechanism” that demonstrators could have used to regain access to their accounts once they had left the protests, the report says.

One measure Justice Rouleau does take issue with is the designation of protected areas, which the government’s order said “may be secured.” The report says the order was inappropriately drafted and that its language was too vague to be useful.

The justice largely concurred with testimony by federal government officials and some police leaders who said the emergency measures, taken as a whole, created a deterrent effect across the country, likely incentivizing some protesters to return home voluntarily – and convincing others not to join protests at all.

At a news conference on Friday, Cara Zwibel, a director at the Canadian Civil Liberties Association, said her group’s view remains that the threshold for invoking the Emergencies Act was not met.

Separate from the inquiry, the CCLA is challenging the Emergencies Act invocation in court.

Among his several dozen recommendations, Justice Rouleau says the link between the Emergencies Act and the CSIS Act should be severed. He writes there should be an in-depth review of the definition of a public order emergency to ensure that it is “modernized” to capture all the situations that would pose a risk.

The report also makes a host of recommendations aimed at policing, including that police agencies develop protocols for requesting additional resources when a service is unable to respond to a major event on its own.

With reports from Carrie Tait and Shannon Proudfoot