Prime Minister Justin Trudeau testifies at the Public Order Emergency Commission (POEC) at the Library and Archives building in Ottawa on Nov. 25.Spencer Colby/The Globe and Mail
Prime Minister Justin Trudeau said threats of potential violence and economic concerns spurred him to invoke the Emergencies Act, offering Ottawa’s most forceful defence yet of the decision to trigger sweeping powers to end last winter’s convoy protests.
The Prime Minister testified on the final day of the Emergencies Act inquiry in a packed hearing room in the heart of the capital as several convoy protest leaders watched from front-row seats. The final decision to invoke the act rested with Mr. Trudeau. After consultations with cabinet, top advisers, and premiers, he did so on Feb. 14.
By then, protests had been gridlocking downtown Ottawa for more than three weeks; vehicles jamming border crossings had fractured supply chains and grabbed headlines around the world; and pressure was mounting on the federal government to intervene.
“I am absolutely, absolutely serene and confident that I made the right choice,” Mr. Trudeau said.
Prime Minister Justin Trudeau was the final witness to testify at the inquiry studying the use of the Emergencies Act on Friday. He acknowledged both the right to defend civil liberties at the inquiry and the sound judgement to invoke the act as a solution to the protests in Ottawa and at borders.
However, in final arguments after Mr. Trudeau’s day-long appearance on Friday, lawyers for civil rights groups said that the Prime Minister’s own testimony showed the anti-government and anti-vaccine mandate protests did not meet the legal threshold required to invoke the law.
The convoys rolled into Ottawa on Jan. 28. The demonstrations soon spread to border crossings, including, most significantly, in Windsor, Ont. But that blockade was cleared before the federal government invoked the Emergencies Act.
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Over six weeks of hearings, thousands of documents and hundreds of hours of testimony have been presented to the Public Order Emergency Commission, led by Justice Paul Rouleau. The commission is studying whether the government met the legal threshold required to invoke the act, including whether it faced a national security threat. In invoking the act, the Prime Minister granted police, government and financial institutions weighty powers including the ability to freeze bank accounts without due process.
The Prime Minister testified that there was consensus to invoke the act from senior cabinet ministers and top security and civil service advisers before he made the decision. He called a memo from the country’s top bureaucrat in favour of triggering the powers “essential” to his decision – even though that memo lacked a threat assessment. And he told the inquiry that despite the two most serious border blockades resolving, it was his understanding that over all, the protests were escalating, not dissipating.
Through his testimony, Mr. Trudeau was the latest in a string of senior cabinet ministers to undercut testimony from RCMP Commissioner Brenda Lucki. The Prime Minister, his cabinet colleagues and top advisers at times discredited Commissioner Lucki’s testimony and challenged the adequacy of her advice to them at the time.
The Emergencies Act states that to declare a public order emergency, there must be “threats to the security of Canada” that are so serious they mark a national emergency. The act’s definition of those threats comes from the Canadian Security Intelligence Service Act. CSIS Director David Vigneault told the commission that protests did not meet the CSIS definition of a national security threat. Yet he advised Mr. Trudeau to invoke the Emergencies Act, after he was provided a legal opinion by the government.
This discrepancy was raised several times during Friday’s final arguments, including by Sujit Choudhry, a lawyer for the Canadian Constitution Foundation.
“The reasonable grounds test requires that the federal government provide evidence for why it disagreed with the CSIS assessment,” he said. “The invocation of the Emergencies Act has been and should remain exceedingly rare. But now that the glass has been broken on the act, it can be used again.”
Meanwhile, Cara Zwibel, a lawyer for the Canadian Civil Liberties Association, argued the Emergencies Act was “carefully crafted” to avoid the excesses of the War Measures Act that preceded it. This protection was achieved by tying the declaration of a public order emergency “exclusively and exhaustively” to the definition of threats to the security of Canada under the CSIS Act, she said.
“The legal threshold to make use of the act was not met, and a creative and privileged legal opinion from the government that says otherwise doesn’t make it so,” she said.
The government has acknowledged that the protests did not meet the definition of threats under the CSIS Act and Mr. Trudeau’s government has not released the specific legal opinion explaining why it believed it could use a different threshold for invoking the act. The Prime Minister has refused to waive solicitor-client privilege on the advice.
During his testimony, Mr. Trudeau agreed that the threshold to invoke the Emergencies Act cannot be lower than the CSIS Act. But he also argued that when deciding to invoke the Emergencies Act, the federal government can consider a wider set of factors than CSIS does in assessing whether there is a threat to the security of Canada. He also emphasized that the acts have different decision-makers.
“The context within which we look at this definition is very different from the deliberately narrow frame that CSIS is allowed to look at,” he testified.
Mr. Trudeau argued there were “threats of serious violence” during the protests.
Asked what those threats were, he cited the “weaponization of vehicles,” with cars ramming other cars at the blockade in Coutts, Alta.; active resistance to police and “trucks used as potential weapons” in Ottawa; and the use of “children as human shields.” He also referenced a cache of firearms seized in Coutts, as well as the presence of people promoting ideologically motivated violent extremism at the protests, which he said had the danger of triggering a “lone wolf” attack.
On Thursday, Finance Minister Chrystia Freeland argued that the economic fallout of the border blockades presented a national security threat. Mr. Trudeau testified that while the economy was “an additional concern,” it was not the primary factor.
He also said that in a Feb. 14 consultation with the country’s premiers, none proposed a viable alternative to ending the blockades without the act. Many premiers publicly opposed its invocation, as well as privately during the consultation meeting.
“If I had been convinced that other orders of government, or any other law in Canada was sufficient to deal with this emergency, then we wouldn’t have met the threshold,” he said.
Under cross-examination, Mr. Trudeau was directly challenged to waive solicitor-client privilege and release the key legal opinion that justified the government’s decision. Mr. Choudhry, the lawyer for the Canadian Constitution Foundation, suggested the release “in the interest of transparency.”
Mr. Trudeau did not answer the question and instead waited for federal lawyer Brian Gover to oppose the question. Mr. Gover told court that waiving solicitor-client privilege could set a dangerous precedent.
Prime Minister Justin Trudeau testified Friday at the Emergencies Act Inquiry, telling co-counsel that the legal threshold to employ the Act was met in order to deal with blockades.
The Globe and Mail
Until testimony at the inquiry last week, the government had not acknowledged it was using a different interpretation of the act. Mr. Choudhry asked the Prime Minister why the government has never previously stated that it believes the definition of threats is broader under the Emergencies Act than the CSIS Act.
The Prime Minister did not directly answer the question. Instead, he pointed the lawyer to a section of the Emergencies Act that describes when a public order declaration can be made.
Mr. Trudeau said that during the Incident Response Group meeting on Feb. 13, there was consensus in favour of invoking the Emergencies Act. Commissioner Lucki attended that meeting but didn’t speak. Her presentation notes for the meeting show she planned to say that police had not yet “exhausted” all available tools under existing legislation.
“There was no voice saying, ‘hold it, we don’t think you should do this,’ or ‘I don’t think you should do this,’” Mr. Trudeau testified.
He also undercut the Commissioner’s testimony that Ottawa police had an “amazing” plan to clear the protests before the Emergencies Act was invoked. “It wasn’t a plan at all,” Mr. Trudeau said Friday, as a government lawyer led the inquiry through several police documents and police testimony that showed the operational plan was only completed on Feb. 17.
“It was not even, in the most generous of characterizations, a plan for how they were going to end the occupation in Ottawa,” Mr. Trudeau added.
Mr. Trudeau testified that the Emergencies Act was in the “back of our minds” from the very beginning but was only seriously considered later in the protests. By the third weekend of protests in Ottawa, on Feb. 11 and Feb. 12, Mr. Trudeau told the commission in an interview ahead of his testimony that the government felt that it was the “right moment” to invoke the act.
According to a summary of that interview, Mr. Trudeau said that through the discussions, the government determined that the only way to give police new powers in a timely manner was by invoking the Emergencies Act because the process to enact new legislation would have taken weeks.
He also said that even though the Windsor blockade had been resolved, “there wasn’t a sense that things were dissipating” when the act was invoked and that the government was concerned by talk of more blockades in Fort Erie, Ont., as well as in New Brunswick, Quebec and British Columbia.
“There was a sense that this was a broadly spread thing,” he said. “The fact that there was not yet any serious violence that had been noted was obviously a good thing, but we could not say that there was no potential for threats of serious violence – for serious violence to happen over the coming days.”
Mr. Trudeau was also asked about the Feb. 14 memo, given to him by Canada’s top public servant, Privy Council Clerk Janice Charette, which recommended that he invoke the Emergencies Act.
“It was a big thing, not a small thing, to have the head of the public service formally recommend the invocation,” he testified, adding that the memo gave him “reassurance.”
The inquiry has heard that the Prime Minister was meant to receive a detailed threat assessment “under separate cover,” in addition to the memo. But Ms. Charette testified that the separate threat assessment was never provided.
During closing arguments, Eva Chipiuk, a lawyer for the convoy organizers, criticized the government’s invocation of the act, for which she said there was “no justification,” and added that there was a “sad irony” in the fact that the protests that led to its use had been against government overreach.
“If there ever was a time for a Prime Minister to step down, now is that time,” she concluded.
Justice Rouleau ended the final day of hearings by acknowledging there was a “very divisive issue” at the root of the protests.
“This process – I hope – will be of assistance to people to understand and move forward,” he said.
With a report from Shannon Proudfoot in Ottawa.