Police needed Emergencies Act after deal to secure tow trucks fell through, federal lawyer says
Previous police testimony suggested 34 trucks had been secured before act was invoked
The commission — tasked with determining whether the federal government was justified in deploying the Emergencies Act to end the convoy protest — has been hearing about the plans Ottawa police, the Ontario Provincial Police and the RCMP had in place to control crowds and clear the protesters and their vehicles after they had gridlocked Ottawa for weeks.
Supt. Robert Bernier, who took over as event commander on Feb. 10. and was responsible for strategic operational planning for the event, told the inquiry he did not need to rely on powers granted under the federal act to secure tow trucks.
But an exchange at the inquiry hearing on Wednesday offered a different view.
Some of those towing companies feared they would be targeted by protest supporters. At least one Ottawa tow truck operator reported receiving hundreds of calls — including death threats.
Bernier said the OPP had been able to secure 34 tow trucks with willing drivers by roughly Feb. 13 as part of their plan to end the protest.
Police had promised to place police crests on the trucks, and to cover other company markings, to keep the drivers and their employers anonymous, he said.
Federal powers did compel tow trucks: lawyer
During cross examination, Donnaree Nygard, a lawyer for the federal government, asked Bernier if he was aware that the commitment for 34 trucks fell through.
"I was not informed of that," said Bernier.
Nygard entered into the record a Feb. 17 letter that showed OPP Commissioner Tom Carrique cited the Emergencies Act in his communications with towing companies.
Ottawa
Police Service Inspector Robert Bernier responds to questions as he
appears as a witness before the Public Order Emergency Commission on
Oct. 25 in Ottawa. (Adrian Wyld/The Canadian Press)
"This is new to me," Bernier said Wednesday.
In a Feb. 22 letter — written after police had moved to clear Ottawa's streets — Carrique told Ontario's Deputy Solicitor General Mario Di Tommaso that the towing industry was "highly reluctant" to assist police and that they were seeking "an unusually broad and high risk indemnification from the province for loss and damage."
That request included indemnification for future retaliation. Carrique said that would require the finance minister's approval and would take time.
In the letter, entered into evidence on Wednesday, Carrique also said securing agreements with tow truck companies would have required separate agreements.
Again, the head OPP officer warned that there was not enough time before the planned police operation.
Carrique is scheduled to testify before the commission on Thursday.
Bernier not sure the act was necessary
In a interview with the commission before his testimony, Bernier called the Emergencies Act measures helpful but said he was already planning to carry out a police operation when the law was invoked.
On Wednesday, commission lawyer Frank Au asked whether he thought the federal act was necessary to remove protesters.
"Hard for me to say. I did not get to do the operation without it," Bernier responded.
"I don't know what complications I would have had had it not been in place and utilized the common law."
Bernier told the commission this summer that the powers granted under the Emergencies Act helped police adopt "a much stronger posture at exclusion zone checkpoints," and helped them execute the plan with less pressure from the crowds, according to his witness interview.
Protesters were 'prepared to defend themselves:' report
An Ontario Provincial Police report from Feb. 14, the day the government invoked the act, described a volatile situation.
"Blockade organizers view the standoff with the government as a zero-sum game: they are convinced that if the government has not reached out to them to negotiate, it is because a massive police deployment against them is imminent," said the report, entered into evidence Wednesday.
"This perception is feeding a siege mentality in which they are prepared to defend themselves."
The report mused the reported increase in bear spray sales may be indicative of that.
The OPP also wrote that it did not appear protesters would leave on their own.
"There is no clear pathway toward reaching a satisfactory resolution that would see the protest group leave voluntarily," the report said.
During her cross examination, Nygard pointed to a section which said police were aware that a protester "may have brought firearms."
Protesters cook breakfast food and give out snacks and drinks during the protest against COVID-19 restrictions. (Justin Tang/The Canadian Press)
The report also said police observations had not been able to to qualify if any truckers were in fact armed.
Bernier said he agreed there were violent elements in the crowds.
Before the act was invoked, Bernier had been working on a plan to restore public order and tow vehicles that were blocking streets.
By that point, the Ontario government had declared a state of emergency. Bernier testified that his plan did not rely on powers granted by the provincial government.
Bernier was frustrated with Sloly
Around this time, Bernier said, he tried to distance himself from Ottawa's police chief, Peter Sloly, so that he would have space to come up with an operational plan and make decisions. He said Sloly was acting behind the scenes to direct operations, including attempts to close interprovincial bridges.
Bernier said Sloly wanted Ottawa police lawyer Christine Huneault to review his plan before he approved it.
According to a summary of an interview he gave to the commission this summer, Bernier was "frustrated by Chief Sloly's direction, which he viewed as an inappropriate interference with his role as event commander."
The superintendent suggested Sloly felt challenged by the new plan since it threw another plan Sloly had helped to craft out the window.
WATCH | 'Hard for me to say' — OPS Superintendent Robert Bernier is asked whether Emergencies Act was necessary
In documents tabled at the inquiry, Sloly denied asking Huneault to approve the operational plan and holding the process up.
"[Sloly] never intended that there be any delay with the implementation of the operational plan," said a summary of interviews the former chief gave the commission over the summer.
On Feb. 14, the federal government invoked the Emergencies Act. Sloly resigned the next day.
Bernier said he did not know at the time that the act was going to be invoked or that Sloly would step down.
Ottawa police and representatives of the other police forces moved ahead with what they called the February 17 Plan. It outlined four operational phases: securing resources, slow, methodical action to end the occupation, keeping the city core free of illegal activity and returning the city to normalcy.
Police continue to push back protesters in Ottawa on Saturday, Feb. 19, 2022. (Evan Mitsui/CBC)
Bernier told the commission that, by that point, he had received all the officers that he needed to implement the plan, including multiple tactical units and SWAT teams.
"Had I not had [the Emergencies Act] in that fashion what would it have looked like? Hard for me to say," he said.
Bernier later said under cross examination that he agreed with interim chief Steve Bell when he said that Ottawa police, the OPP and the RCMP would have been able to clear the crowds without the act.
OPS planning questioned
Bernier told the inquiry Tuesday that he had read intelligence reports about the convoy — drafted by the OPP under the heading Project Hendon — before protesters arrived in Ottawa.
One Hendon report from Jan. 27 indicated that some protesters were planning to stay in Ottawa until their demands were met, that some hoped to force a change in government and that some held anti-government views.
Bernier said he tried to raise it with his superior.
"He told Superintendent [Robert] Drummond that there seemed to be a bizarre disconnect between the intelligence contained in the Project Hendon reports and OPS's preparations," said a summary of the interview he gave to the commission in August.
Drummond represented the Ottawa police liaison teams and the public order units during the convoy. He told the commission he does not recall anyone raising concerns.
Drummond testified before the inquiry Wednesday.
He
backed up Bernier's claim that Sloly was acting outside of the normal
chain of command and that it was unusual for a police chief to direct
enforcement at the operational level.
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🔴LIVE PUBLIC ORDER EMERGENCY COMISSION INQUIRY Day 10 - October 26, 2022
Doug, whatcha doin to dat cheezcake? John Ivison: It's becoming clear that the federal government overreached to shut down the Freedom Convoy
We have heard no evidence at the inquiry so far that bolsters the government’s case that the circumstances met the constitutional bar
A
police officer grapples with a man as authorities work to remove the
Freedom Convoy protest in downtown Ottawa on Feb. 18, 2022. Photo by Ed JONES / AFP OTTAWA — The look on Robert Bernier’s face made clear he was trying to figure out how to avoid trending on Twitter.
The Ottawa Police Services superintendent led the mission that finally cleared the Freedom Convoy in February, and on Wednesday was being grilled by the counsel for the Public Order Emergency Commission, Frank Au, on the impact the government’s proclamation of an emergency had on his plans.
Bernier said the invocation of the Emergencies Act on Feb. 14 for the first time in Canadian history did not significantly impact the planning process for the operation that cleared the streets of protesters around Parliament Hill four days later. “The plan I was developing was based on existing authorities,” he told the commission. “I was satisfied we were going to have all the authorities we needed to take action.”
Was it helpful to have the additional measures in the Emergencies Act? Au asked.
“Anything that contributes to mission success is a benefit,” Bernier replied.
Was the invocation of the act necessary? Au persisted.
This is the question that caused Bernier to pause and consider whether he wanted to be the man who broke the internet. Because this is really what the multi-million-dollar commission is all about — did the government’s use of the act meet the legal threshold? Namely, was there a threat to the sovereignty and security of Canada that could not be dealt with under existing laws?
If the man charged with clearing up the mess said invoking the act was unnecessary, the commissioner might as well start writing his report now.
In the end, Bernier answered the question by opting for an evasion worthy of the House of Commons. “It’s hard for me to say since I did not get to do the operation without it,” he said.
Yet, it is clear from much of the testimony we have heard so far that, while useful, the events in Ottawa in February did not constitute a national emergency that required the use of legislation designed to address the most urgent and critical of situations.
We have heard virtually nothing that bolsters the government’s case that the circumstances met the legal and constitutional bar.
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The closest thing to support for the government’s actions came from acting Ottawa police chief Steve Bell, who said it provided “a very stable platform” for the execution of the police plan. But even he reiterated Bernier’s point — that there was a plan ready to go, regardless of the Emergencies Act.
“We had a plan. We were going to execute the plan,” Bell said.
Ottawa Police Service Supt. Robert Bernier responds to questions while appearing as a witness at the Public Order Emergency Commission in Ottawa on Wednesday, Oct. 26, 2022. Photo by Sean Kilpatrick /The Canadian Press
Police have said that the new powers were helpful in streamlining the swearing-in of police members from across the country and compelling some tow truck companies to remove vehicles from streets.
But Bernier said there were already 34 tow trucks available for use before the act was invoked.
It will be up to the government to convince Commissioner Paul Rouleau that there was a clear and present danger to national security.
Lawyers for the convoy organizers have already said that will be difficult when there is no evidence protesters engaged in sabotage or serious violence, were manipulated by foreign agents or attempted to overthrow the government.
Public Safety Minister Marco Mendicino justified the use of the act by saying a small, organized group “driven by ideology” was trying to subvert the government.
Yet, the inquiry so far has heard only the opposite. Supt. Pat Morris of the Ontario Provincial Police operations intelligence bureau said that at no point during the protest did he receive reliable intelligence that led him to believe there was a risk that would rise to the level of a potential threat to national security.
In documents submitted to the inquiry, Morris wrote that the RCMP’s integrated national security enforcement team (INSET) and the Canadian Security Intelligence Service (CSIS) concurred that there were no national security concerns.
In another document, RCMP Commissioner Brenda Lucki said she did not believe police had employed “all the available tools” to break up the protest prior to the invocation of the act. In an email to Mendicino’s chief of staff just after midnight on Feb. 14, Lucki said that those other tools had already been factored into a plan to end the protest.
All of this testimony suggests the government overreached.
Only a fool would predict what the commissioner will conclude, but I confidently anticipate he will not be sympathetic to the government.
Nervous Liberals are already pointing out “material inconsistencies,” such as the difference between Morris’s testimony and that of OPP Commissioner Thomas Carrique at the House of Commons public safety committee in March, when he said his intelligence unit had identified the Freedom Convoy as a “threat to national security.”
There is also a sense of justification on the government side that, while there may have been laws on the books to clear the protest, they were not being enforced because of dysfunction at the operational level.
In this light, the invocation of the act was meant to galvanize law enforcement into action.
When we do hear from government ministers, they will lean heavily on section 6(1) of the Emergencies Act — that invocation is justified if the government believes “on reasonable grounds” that a public welfare emergency exists.
The government must hope that the commissioner takes a similarly flexible view of what constitutes an emergency because what is becoming clear is that the Freedom Convoy was not a serious threat to sovereignty, security or the territorial integrity of Canada, and it could have been dealt with effectively by existing laws.
We are only two weeks into six weeks of testimony — the end of the first period — but this is already turning into a gong show for the governing party.
jivison@postmedia.com
Ryan Alford: Jagmeet Singh's disgraceful promise to delay reckoning over Emergencies Act
The FLQ were terrorists. People with views outside of the mainstream are not
Canada's
New Democratic Party leader Jagmeet Singh speaks during Question Period
in the House of Commons on Parliament Hill in Ottawa, Ontario, Canada
September 22, 2022. REUTERS/Blair Gable
Commissioner Paul Rouleau made it clear at the start of the inquiry that its focus will remain squarely on the decision of the Federal Government to proclaim a public order emergency. As weeks of sworn and cross-examined testimony bring the events of last February into sharper view, we have yet to see any evidence of the essential precondition for such a declaration: terrorism.
The government relied on this threat being already in existence when it made its case to Parliament for invoking the Emergencies Act. The official explanation relied on the argument that the protesters’ activities were “tied to serious acts of violence against persons or property” for “the purpose of achieving a political or ideological objective.” It escaped most people’s notice that the threshold for “serious violence” in service of a political objective closely resembles the Criminal Code of Canada’s definition of terrorist activity.
When the Emergencies Act was drafted, the declaration of a public order emergency was contemplated only as a response to significant support for serious violence, of an order of magnitude greater than what existed during the October Crisis. When attempting to assess whether the evidence at the inquiry meets the legal standard, we must answer these questions: Who were the protesters allegedly attempting to assist? Were they attempting to further the aims of a group like the FLQ, in a manner far more direct than the alleged support of Quebec’s student and trade union movements in 1970?
The legal picture has been blurred by unhelpful bureaucratic jargon, especially the term “ideologically motivated violent extremism.” That phrase is not found in the Emergencies Act, the CSIS Act, or the Criminal Code of Canada, which refers to terrorism. The confusion wrought by this unnecessary yet fashionable euphemism stems principally from it frequently and lamentably being abridged to “extremism,” a descriptor that is far broader and even more imprecise than what it replaced. But to be clear: the FLQ were terrorists. People with views outside of the mainstream are not, regardless of how divergent those views are. To be properly subjected to emergency powers, they must have been acting in support of terrorists who were already engaged in serious violence.
By necessity, police officers use precise legal definitions; politicians have far more latitude. This may explain the difference in the perspectives of the Ontario Provincial Police who scanned for violence and the city councillors and mayors, fixated on what they considered abhorrent views. Unsurprisingly, those who believe that dangerous ideas should be eradicated before they can spread are far more likely to countenance the suppression of protests than law enforcement officials, who must constrain their conduct to legal limits. Accordingly, the latter are also far more likely to appreciate the all-important difference between violent acts and dangerous ideas.
OPP Superintendent Pat Morris broke the inquiry wide open last week when he revealed that he had been troubled during the protests by the suggestion that there had even been a potential threat to national security. Although he ultimately agreed that if blockades at border crossings proliferated such a threat might come about, shortly before the declaration of February 14, he memorialized (in an email to Ottawa Police Chief Peter Sloly, reviewed, and approved by his superior officers in the OPP Command and sent February 12th) his skeptical assessment that there was no credible intelligence of an existing threat to national security. Furthermore, he noted that both the RCMP and CSIS had agreed with his conclusion about their being no threat to national security, an evaluation that was reinforced by the peaceful resolution of the border blockades before the declaration of the public order emergency came into effect.
In their cross-examination of Morris, the government’s lawyers resorted to grasping at straws. They put it to Morris, who had also overseen the undercover officers at the protests, that there was a connection between those blockading the border crossing at Coutts in Alberta and the Ottawa protesters. When Morris said there was very little connection, we witnessed the very first mention of a shadowy group of extremists named Diagolon, not by the witness testifying, but by the government’s own lawyers. Morris brushed off the suggestion they were involved in the Ottawa protests and pointed instead to the presence of Les Farfaadaas (in English, The Leprechauns) at the intersection of Rideau and Sussex streets.
They had caused him concern, but the Sûreté du Québec assured Morris they were non-violent. The commission will hear more about that group soon, as their erstwhile leader Steeve Charland will testify next week; we will soon be able to judge for ourselves whether the Ottawa protests were carried out “towards or in support of” terrorism committed by the only organization of concern to the police that had any connection to the Ottawa protests.
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In the absence of any evidence The Leprechauns are a terrorist group, the government appears prepared to fall back on the position that the protesters simply made it more likely that a “lone wolf” would use the protests as a cover for actions the Freedom Convoy could not predict, never mind countenance. If the inquiry accepts this as a basis for conclusion that the protests were carried out “towards or in support of acts of serious violence” then the right to protest is dead. As Morris noted, every protest increases this inherently unpredictable and unavoidable risk. Eliminating the right to protest on that basis would be as preposterous as banning books owing to the violence that followed the publication of The Satantic Verses, only with totalitarian implications that are even worse.
Thankfully, it appears to keen observers that an official finding against the government is approaching. This is what likely explains Jagmeet Singh’s public musings about whether in that event his party would withdraw its confidence and support to bring down Justin Trudeau’s Government. On CTV’s Question Period, Singh said that “simply because it was the wrong decision wouldn’t be enough.”
If misleading the country into supporting the most unconstitutional abuse of power imaginable isn’t sufficient, it is unclear what would. Canada appears close to crossing an event horizon, into a place where information about corruption, dishonesty, or even illegality becomes simply irrelevant. Accordingly, in the event that the government is found wanting, it is up to the people of Canada to provide the necessary accountability. Thanks to Singh, that may not be hastened by the commissions’ findings, but a reckoning will surely come. It is in the national interest that this take place at the ballot box, and soon.
National Post
Ryan Alford is a professor in the Bora Laskin Faculty of Law at Lakehead University and a senior fellow at the Macdonald-Laurier Institute. He was granted joint standing with the Canadian Constitution Foundation as a party before the Public Order Emergency Commission.
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