Buried in the mass of intelligence reports generated by police agencies that have come into the possession of the Public Order Emergency Commission there is a fascinating thread. It was generated internally within the Ontario Provincial Police (OPP) and never designed to be made public. But public it now is and it contains both a profound message about the lawful guardrails around intelligence and the ways that intelligence efforts might be abused in the midst of the crisis atmosphere generated by the so-called Freedom Convoy.
The messaging emanated from Superintendent Pat Morris, the head of the OPP’s Provincial Operations Intelligence Bureau, or POIB. It was POIB that authored an impressive series of intelligence assessments on the Freedom Convoy, staring as early as January 13, under the banner of something called “Project Hendon.” Please see my previous columns for more information on Hendon and its reporting.
Superintendent Morris was an unusual senior police officer—unusual for his breadth of experience with intelligence. Former Ottawa Police Chief Peter Sloly commended Superintendent Morris as an outstanding intelligence leader, in his testimony before the Commission. Morris also possessed another trait— his historical memory of how intelligence could get bent out of shape, reaching back to the immediate aftermath of the 9/11 Al Qaeda terrorist attacks.
So far as the evidentiary record has revealed to date, Superintendent Morris first raised concerns about the demands being placed on intelligence as early as February 2nd, just after the first weekend of the Freedom Convoy occupation of downtown Ottawa.
https://publicorderemergencycommission.ca/files/exhibits/OPP00000850.pdf?t=1667526898
The February 2nd message identified several concerns with intelligence production, including the manner in which urgent request for intelligence reports were reaching Morris, through multiple channels and sometimes from requesters with little actual knowledge of the intelligence function. Morris worried that those requesting intelligence reporting, especially with regard to individuals or groups associated with the Freedom Convoy, were not paying attention to the grounds rules for a law enforcement agency, above all the fact that intelligence could only be generated on targets if the OPP had reasonable grounds to believe such targets are or may be engaged in criminal activity. There could be no open intelligence gathering season on dissenters purely because, as he put it, they might “cause discomfort to the status quo.”
Morris said he had acted to prevent or slowdown what he regarded as illegitimate requests for intelligence, but he clearly believed that the problem would persist. He told readers of his message that the times were out of joint—”in times of social turmoil, anxiety breeds fear and demands for information.” He was reminded of the mass demand for information on “terrorists” that occurred after 9/11 and clearly wanted to avoid a repeat in the face of the Freedom Convoy.
The problem didn’t go away, as indicated by subsequent messages that Superintendent Morris sent. On the evening of February 14, following the invocation of the Emergencies Act by the federal government, Morris sent an email to the OPP Commissioner and Deputy Commissioner.
https://publicorderemergencycommission.ca/files/exhibits/OPP00000348.pdf?t=1667527224
It was prompted by a desire to review the intelligence operations that the OPP had conducted to date, against the backdrop of public comments about intelligence failure. Part of Superintendent Morris’s email involved an accounting of the various forms of intelligence reporting undertaken, and the quantity of reports generated. This included 26 strategic intelligence reports published on dates after January 20; 23 intelligence teleconferences; and “numerous” POI (‘persons of interest’) profiles. But Morris also again drew attention to the problem of lawful intelligence gathering. He stated that the intelligence effort targeted a protest movement in which, “for the most part,” those involved were not participating in criminal activity. In his view this meant that “the balance of civil liberties and public safety/crime prevention—not to mention pro-active intelligence targeting—is a sensitive one, especially in these politicized times.” Superintendent Morris did not say whether he believed the right balance had been struck. He did assert that his analysts had been “outstanding.”
This question of the ethics and propriety of intelligence gathering targeting the Freedom Convoy was a burning question for Superintendent Morris that he clearly could not leave to rest. He wrote a subsequent message on February 22, following the clearing of the Ottawa occupation, and one day before the Emergencies Act was revoked.
https://publicorderemergencycommission.ca/files/exhibits/OPP00000789.pdf?t=1667527331
Morris stated that he believed law enforcement had arrived at what he called a “critical stage,” with intelligence increasingly being treated in a sensationalized manner, especially around the issue of the role of extremists in the Freedom Convoy. He rejected the picture of Canadians with ”extremist ideologies” leading the charge and wanted to ensure that a distinction continued to hold between labelling someone an extremist and finding that a person may be engaged in what CSIS denoted as “ideologically motivated violent extremism,” which could bring national security threats and potential criminal charges into play. He saw the lines being blurred and worried about this. He urged that the OPP approach should be to “calmly continue gathering information, understand what we are dealing with and monitor intentions and actions for criminal activity and public order implications.” He warned that there would be “significant scrutiny” ahead.
Morris was not trying to paint a sympathetic or unvarnished picture of the Freedom Convoy movement. He made this clear in a longer memo discussing the history of POIB’s intelligence work on the Freedom Convoy, which he prepared for the OPP Commissioner in March 2022.
https://publicorderemergencycommission.ca/files/exhibits/OPP00001783.pdf?t=1667527573
He recognized that the Freedom Convoy movement drew some inspiration from what he identified as extremist thought, concerning sovereign citizen ideals, ethno-nationalism, and “wide-spread conspiracy theories “ which took in what he called “COVID-19 denialism” and features of QAnon rhetoric.
In fact, Morris’s intelligence unit first identified the Freedom Convoy and its occupation of Ottawa as a potential national security threat on February 7, after the second weekend of the protest activity. By this stage, the Freedom Convoy was “firmly entrenched” in Ottawa and a leadership group had taken shape of individuals who ”espoused strong anti-government views” and were increasingly confident in their ability to force governmental change, using tactics of intimidation, and lacking any democratic legitimacy. Tensions were mounting between protesters and police in Ottawa and counter-protest activity was emerging. Worries were growing about a potential spiral into violence, including by lone actors/lone wolfs.
In Morris’s view the threat of criminality among the Freedom Convoy—which he felt on the evidence was low—had to be distinguished from the potential that the protest movement, through its actions in Ottawa and at border crossing points presented a national security threat, or as Morris put it, “stretched into the national security realm.”
This is where the intelligence role of a law enforcement agency such as the OPP and that of a civilian national security entity such as CSIS begin to diverge. Morris told the OPP Commissioner that he had no knowledge of the extent to which OPP intelligence reporting might have contributed to the decision on the part of the government to invoke the Emergencies Act. He recognized that wider considerations than strictly criminal behaviour may have been involved, including threats to Canada’s economic security, democratic governance legitimacy, and international reputation.
With this series of ethical and professional musings, Superintendent Morris was prefiguring one of the key challenges facing the Public Order Emergency Commission. The Commission will have to wrestle with the legal definition of threats to the security of Canada, which is contained in the CSIS Act of 1984 and was ported into the Emergencies Act when passed in 1988 as a key threshold for legitimate use of the Act’s powers. The CSIS act definition of threat mashes together elements of threat that were distinguishable in 1984 (a chuckle from the grave of George Orwell), including espionage, sabotage, foreign influenced activities (when clandestine or deceptive) terrorism/threats or acts of serious violence driven by a political, religious or ideological motive, and subversion of government. The definition was embedded in a piece of legislation that was meant to help sever a new civilian national security intelligence agency from the law enforcement practices of the disgraced RCMP security service, but the concept of national security threat remained deeply rooted in aspects of criminality.
Compare the CSIS Act of 1984 to the UK Intelligence Services’ Act of a decade later. That Act states that:
(2) The functions of the Intelligence Service shall be exercisable only—
(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty’s Government in the United Kingdom; or
(b) in the interests of the economic well-being of the United Kingdom; or
(c) in support of the prevention or detection of serious crime.
Back to Canada. We are the 21st century prisoners of an old and out of date definition of national security threats, chained to a historical legacy moment. I think that Superintendent Morris saw this and wanted to ensure that the lawful guardrails around law enforcement intelligence as a distinct practice be maintained. What this does not answer is the question of what the lawful guardrails around national security intelligence should be in a world vastly different from 1984.