A panel of CSIS officials gave testimony to the Public Order Emergency Commission on the morning of November 21. The panel consisted of the CSIS Director, David Vigneault, the CSIS Deputy Director for Operations, Michelle Tessier, and the Executive Director of the Integrated Terrorism Assessment Centre (ITAC), Marie-Helene Chayer. Ms. Chayer is the most recent appointee among this trio, having been appointed in September 2021.
Lead examination was conducted by counsel Gordon Cameron, who also led in the examination of RCMP officials the previous week. It started slowly to engage in what the counsel called an exercise in “CSIS 101,” to basically describe its mandate and authorities. It was pretty lawyerly and dull stuff. I was watching the clock. This went on for the first 30 minutes. (Cameron is methodical but has a bad habit, in my view, of waving his hands.) Cameron then turned the examination over to another Commission counsel, Nusra Khan, to go through the CSIS concept of IMVE—Ideologically Motivated Violent Extremism—a terminology that CSIS began to adopt in 2018-19 to broaden the framework of its security investigations beyond the post 9/11 concern with Islamic terrorism. IMVE is part of a trio of violent extremist concerns monitored by CSIS; the other elements are religiously motivated violent extremists (RMVE) and politically motivated violent extremism (PMVE).
Here we heard the first interesting piece, which involved an internal CSIS definition of threats to property, part of the Section 2(c) definition of threats to security in the CSIS Act. In CSIS’s view, a threat of serious violence to property needs the corollary of potentially leading to loss of life. This is an old-fashioned concept, rooted in things that go “boom” in a classic terrorism scenario. It does little or nothing to protect critical infrastructure from blockade at border crossings, as occurred during the Freedom Convoy events, or to protect “property” (think industry) more broadly in the context of Canada’s economic security.
Further testimony, led by Ms. Khan, regarding the CSIS assessment of threats posed by the Freedom Convoy focused on two aspects—ongoing monitoring of existing CSIS targets of investigation and a broader look at indications of any expanded violent extremism that might stem from the Freedom Convoy. CSIS threat assessments began on January 27, one day before the arrival of the first trucker convoys in Ottawa. This was, incidentally one week after the first substantive threat assessment provided by the OPP’s “Project Hendon.”
CSIS Director Vigneault confirmed that CSIS was aware of steams of law enforcement reporting including from Project Hendon. The CSIS classified institutional report listed the range of agencies that the Service was receiving reports from—but we won’t get to see this. They may have received them, but the witness interview summary indicated that the ITAC Executive Director, Marie-Helene Chayer “could not recall whether the threat assessments prepared by ITAC relied on intelligence from law enforcement.” Something is amiss here. Later in cross examination both Ms. Tessier and Ms. Chayer indicated they had not read the Hendon reports.
Counsel Cameron eventually came to the key issue, which is that the threat assessment provided by CSIS concluded that the Freedom Convoy events did not amount to threats to the security of Canada under s2 of the CSIS Act. But when asked by the PM to provide his opinion on whether the use of the Emergencies Act was necessary and lawful, Vigneault stated that he agreed that the Emergencies Act was necessary. This is a real pretzel argument and is difficult, on the face of it, to understand.
Mr. Vigneault explained that he was not familiar with the Emergencies Act prior to the Freedom Convoy, or the beginning of discussions in Cabinet about its possible use, just days before its invocation on the afternoon of February 14. Perhaps few were. One of its legal key thresholds is that the Emergencies Act can only be invoked if there is a determination that there is a threat to the security of Canada as defined in the CSIS Act s2. The CSIS Director would have been better off sticking to his argument that while the Service did not see Freedom Convoy events as amounting to a threat to the Security of Canada, he wasn’t the decision-maker on such matters and that there was other advice available to the PM and Cabinet on a broader range of threat-related issues.
Counsel Cameron ended his examination early, less than 90 minutes into the session. So much of substance and importance was, in my view, missed. There was no probing of ITAC reports. There was no discussion of CSIS’s understanding of developments at at the Coutts border blockade (the arrests of individuals who possessed a weapons cache), a crucial last-minute developed that may have impacted mightily on the decision to invoke the Emergencies Act. This despite the fact that in the public summary of closed testimony to the Commission the CSIS Deputy Director of Operations, Ms. Tessier, “the arrests at Coutts did not lead the Service at that time to the conclusion that the protests necessarily constituted a threat to the security of Canada.” One is left to wonder—why not? And why not, for goodness sake, ask?
There was no effort during the lead examination to untangle the CSIS Director’s view that while the Freedom Convoy did not amount to a threat to the security of Canada as defined by the CSIS Act, nevertheless he was able to advise the Prime Minister, when asked, that he felt the invocation of the EA was required, complete with its CSIS act threshold. The exact description of the CSIS Director’s outlook is contained in the public summary of in camera testimony before the Commissioner:
“Mr. Vigneault stated that at the end of the February 13 IRG meeting, following the discussion of the Emergencies Act, he was asked by the Prime Minister to provide an opinion as to whether he supported the invocation of the Emergency Act. Mr. Vigneault explained that based on both his understanding that the Emergencies Act definition of threat to the security of Canada was broader than the CSIS Act, as well as based on his opinion of everything he had seen to that point, he advised the Prime Minister of his belief that it was indeed required to invoke the Act.”
In effect, Mr. Vigneault was a prisoner of the CSIS Act, but wanted to take a bigger national security perspective in providing advice to the PM in a crisis moment. I don’t blame him for this, but I am not sure he gets to wear both hats as Director of CSIS.
Finally, there was no discussion whatsoever of the various recommendations that CSIS may have about changes to CSIS legislation or to the Emergencies Act itself.
Altogether the lead examination was a bust.
Cross-examination focused, in part, on the problem of information silos, and on the confusion over CSIS assessments of the Freedom Convoy threat and the advice that the CSIS Director provided to the Prime Minister. In response to cross-examination from counsel to the CCLA, Mr. Vigneault indicated that he had received legal advice about the Emergencies Act and its thresholds from the Department of Justice. Let’s hope we will learn more about that advice later this week in testimony from the Minister of Justice. It seems a crucial missing piece.
Then there was cross-examination by the Freedom Corp’s counsel (representing the convoy organizers) which dived into what has to be considered a conspiracy theory initially based on tweets between political staffers responsible for communications, which involved discussions of digging into the social media posts of the Freedom Convoy. Mr. Miller appears to believe that the government, or elements of it, was manipulating and helping create a media view of national security threats posed by the Freedom Convoy. In Mr. Miller’s view, a “narrative was being built.” This fits with a view from within the Freedom Convoy that the government was waging a covert “information war” against it. Not just the government. Apparently, the Toronto Star was waging an information war against it. The Liberal (party) Research Bureau was waging an information war against it. Commissioner Rouleau eventually lost patience with all this and had to admonish The Freedom Corp lawyer.
I can only wait for the cross-examination of Ministers on this issue. A circus awaits.