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Trudeau met threshold to invoke Emergencies Act, commission finds

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The Public Order Emergency Commission has concluded that the federal government met the threshold for invoking the Emergencies Act to bring an end to the "Freedom Convoy" protests and blockades.

"I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance," said Commissioner Paul Rouleau of Prime Minister Justin Trudeau's decision to declare a public order emergency, in a mammoth five-volume, 2,000-page report released Friday.

The commission has concluded that, while the prime minister met this bar for invoking wide-sweeping powers to address the anti-COVID-19 restriction and anti-government Ottawa occupation and blockages at key Canada-U.S. border crossings, this move could have been avoided if it wasn't for "a series of policing failures" and all levels of government failing to "rise above politics."

"Some of the missteps may have been small, but others were significant, and taken together, they contributed to a situation that spun out of control. Lawful protest descended into lawlessness, culminating in a national emergency," Rouleau writes in his 273-page executive summary.

"Many have called the events of January and February 2022 exceptional. I think that is an apt description," said Rouleau. "There was credible and compelling evidence supporting both a subjective and objective reasonable belief in the existence of a public order emergency. The decision to invoke the act was appropriate."

After reviewing the report—tabled by Minister of Emergency Preparedness Bill Blair—Trudeau spoke with some degree of vindication, noting that the commission agreed that what was experienced was a national emergency that threatened Canadians' security.

"The risk of people losing faith in the rule of law that upholds our society and our freedoms, those risks were real. Responsible leadership required us to restore peace and order," Trudeau said on Parliament Hill Friday. 

The report also stated that the series of events that transpired can be seen as "a failure of federalism" as Canada's leaders failed to anticipate or properly manage the "torrent of political protest and social unrest" that was exacerbated by the COVID-19 pandemic and shaped by online disinformation.

"Had various police forces and levels of government prepared for anticipated events of this type and acted differently in response to the situation, the emergency that Canada ultimately faced could likely have been avoided. Unfortunately, it was not."

The report finds that the federal government adequately consulted ahead of the Feb. 14 invocation, and that Rouleau believes "cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable."

Among Rouleau's core findings was that there was "credible and compelling" information provided to the commission to support a reasonable belief that the definition of a threat to the security of Canada was met.

During the commission hearings it came to light that CSIS didn't view the "Freedom Convoy" protests as a national security threat by definition, though Trudeau's National Security and Intelligence Adviser Jody Thomas did.

Another core piece of testimony that Rouleau reflects on in his report was that throughout the protests there was clearly frustration over the Ontario government's apparent lack of desire to be involved. In his report, Rouleau slams Ontario Premier Doug Ford—who cited parliamentary privilege to get out of testifying—for abandoning Ottawans "during a time of crisis."

SOME POWERS 'FELL SHORT' BUT OTTAWA WAS 'UNSAFE'

In his assessment, the commissioner said that the first-ever invocation of the Emergencies Act itself had a "deterrent effect." And, while most of the unprecedented measures cabinet put in place to respond to the situation — from wide-sweeping police powers, to cracking down on protesters' access to funds — were appropriate and effective, "others fell short."

Among the measures he deemed adequate were compelling essential services such as tow operators to move the rows of immobilized transport trucks, and the controversial capability for the federal government to freeze protesters' assets. However not having a "delisting mechanism" for the accounts of people who left the protest was a "failure."

Reacting to the report's pronouncements on the financial measures imposed, Deputy Prime Minister and Finance Minister Chrystia Freeland said she was pleased to see Rouleau agree that the economic steps taken made a meaningful contribution to resolving the situation. 

Rouleau also raised questions around whether the measure to designate "protected places" to create exclusion zones, was used to an appropriate scale. He found that the way this power was worded was too vague to be properly enforced.

Organizers of the "Freedom Convoy" have long contended that the three-week protest in downtown Ottawa was a peaceful celebration, and not a forceful occupation. But, Rouleau decidedly rejected that version of events. 

"I do not accept the organizers' description of the protests in Ottawa as lawful, calm, peaceful or something resembling a celebration," Rouleau said in his report. "The bigger picture reveals that the situation in Ottawa was unsafe and chaotic."

While questions were raised during the hearings around whether all police resources were explored and implemented ahead of the invocation, in Rouleau's assessment, the powers available weren't acted on because they were not considered to be effective ways to safely bring the protests to an end.

Speaking about his findings from the room where weeks of hearings took place, Rouleau described his task as "monumental" and noted that he did not come to his conclusion easily.

"We can all hope that such an exceptional confluence of events and circumstances does not occur again. However, even if it does, and if once again the very high threshold for declaring an emergency is met, members of the public should recognize that the Act contains significant safeguards," said Rouleau in his remarks to reporters.

Cara Zwibel, director of fundamental freedoms with the Canadian Civil Liberties Association (CCLA), said that while the CCLA is still examining the report's conclusions and will have more to say, "it is significant that in his statement earlier today, the commissioner noted that the factual basis underlying his conclusion was not overwhelming."

"And, that reasonable and informed people could come to a different conclusion than the one he did," said Zwibel, noting the CCLA's position remains that the threshold was not met.

TRUDEAU POURED GASOLINE ON A FIRE: POILIEVRE 

Justice Paul Rouleau listens as Prime Minister Justin Trudeau testifies at the Public Order Emergency Commission, in Ottawa, on Friday, Nov. 25, 2022. THE CANADIAN PRESS/Justin Tang

The commissioner noted, relatedly, that the idea of the federal government meeting with protesters was "unlikely to resolve matters," but that Trudeau and other political leaders should have made more of an effort in their communications to "acknowledge that the majority of protesters were exercising their fundamental democratic rights."

Asked Friday whether he regrets his "fringe" minority comment as the protests kicked off, as it quickly became somewhat of a rallying cry for protesters, Trudeau said yes.

“Yeah, I wish I had said that differently. As I look back on that, and as I've reflected on it over the past months… I wish I had phrased it differently.”

He said he was speaking of the "small subset" of protesters who deliberately spread disinformation that lead to Canadians' deaths, and not the majority of people who came to Ottawa who were hurting and wanting to be heard.

"If I had… been more specific, I think things might have been a bit easier," Trudeau said.

Weighing in on Rouleau's findings Conservative Leader Pierre Poilievre—who backed the "Freedom Convoy" protests but condemned the blockades—claimed that the emergency was one that Trudeau "created by attacking his own population."

"And then when he caused it, he piled on. He poured more gasoline on the fire with nasty insults, jabbing his finger in the faces of his own citizens, something that even today's report acknowledged, contributed to the length and the intensity of the protest," Poilievre said, dodging a question about whether he accepts the report's findings and whether he's thinking differently about his support for the protesters.

In a statement, NDP Leader Jagmeet Singh said that his main takeaway from the report was that all levels of government failed.

"The report makes clear that this situation—and the response to it from all levels of government and policing— was unacceptable," he said, adding that he thinks Rouleau's recommendations have to be taken seriously. 

ROULEAU MAKES 56 RECOMMENDATIONS

Justice Paul Rouleau releases his report on the Liberal government's use of the Emergencies Act, in Ottawa, Friday, Feb.17, 2023. THE CANADIAN PRESS/Adrian Wyld

Rouleau has presented Parliament with 56 recommendations broken down into these categories: policing, federal intelligence collection and co-ordination, critical trade corridors and infrastructure, and changes to the Emergencies Act, areas for further study, and follow-up and accountability.

One of the biggest takeaways is that Rouleau wants the reference to the CSIS Act's definition of "threats to the security of Canada” removed from the Emergencies Act. He also thinks there should be more discussion around the "reasonable grounds" threshold requirement within the Act.

Other highlights of Rouleau's recommendations include:

  • Consider creating a single national intelligence coordinator for major events that span the nation or cross interprovincial jurisdictions;
  • Develop national standards for policing major events and establish a nationally led major event management unit;
  • Consider whether a federal department or agency should be responsible for monitoring and reporting on social media;
  • Identify critical trade corridors and infrastructure and work across jurisdictions to establish protocols to protect them; and
  • Make a series of changes to the 1988 Emergencies Act including giving the commission power to order the production of documents and extending the amount of time provided to complete its work.

"There are important systemic lessons to be learned for both police and governments from the events," reads the report. Rouleau is calling on the Liberals to report publicly within the next 12 months, identifying which recommendations it accepts with a timeline for implementation, and detail why it would be rejecting others.

Trudeau committed Friday to issuing a comprehensive public response to the commissioner's recommendations "within the next year," and said that "obviously" the Emergencies Act needs amending.

"Because of the thoughtful work of the commission, there are lessons for everyone involved," Trudeau said. "We will take seriously what the commissioner concludes and what he proposes." 

Minister of Emergency Preparedness Bill Blair tabled the report in the House of Commons on Friday.

A REPORT NEARLY A YEAR IN THE MAKING

Sparked by Trudeau's decision last year to invoke the Act, the public release of the report — a few days ahead of the Feb. 20 deadline — marks the end of a months-long national inquiry into the historic series of events.

Launched in April 2022, the inquiry was struck with a mandate to examine the circumstances that led to the historic use of the Emergencies Act as well as the measures taken through it.

After an unanticipated delay and months of research and policy work behind the scenes, including collecting troves of sensitive documents including rarely released cabinet confidences and conducting pre-interviews with key witnesses, the public hearings portion of the inquiry began in October.

Over six weeks, testimony was heard from 76 witnesses, including key convoy organizers as well as Trudeau and his top advisers, and 9,000 documents were submitted into evidence. The commission then spent a week holding policy roundtables with experts on some of the bigger-picture themes that emerged.

Throughout the testimony and the revelations and insights it has offered — from Ottawa's command dysfunction and inadequate information sharing by various levels of police, to power struggles between protesters — the federal government stood by its decision to invoke the Emergencies Act, a move it has repeatedly described as a measure of "last resort."

From late November on, Rouleau and commission lawyers had been working largely behind closed doors to compile this report. After seeking and receiving a weeks-long extension, the sizeable report was presented to the key players as well as the public on the same day.

Rouleau has previously noted the tight timelines he was provided for completing his work, noting that while other high-profile inquiries often take years to complete, the POEC had less than 365 days.

"The Parliament that passed the Emergencies Act in 1988 went to great lengths to ensure that its use would be subject to robust accountability and public scrutiny. I hope that this Inquiry, and my report, have contributed to achieving this," he said on Friday. 

While pushing for amendments to the contentious law may pose challenges for the Liberals in the current minority Parliament, ahead of the report's tabling Public Safety Minister Marco Mendicino indicated that the federal government will be looking to work with parliamentarians to enact Rouleau's recommendations.

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