The Minister of Public Safety, Marco Mendicino, is a key witness before the Public Order Emergency Commission. Key for two reasons. The main one is that his portfolio includes many (not all) of the major national security agencies of the federal government, including CSIS, the RCMP and CBSA. The threat reporting and advice that senior officials provided to the Minister regarding the “Freedom Convoy” places Mr. Mendicino near the pinnacle of Cabinet decision making on the invocation of the Emergencies Act. Near the pinnacle means somewhere in the second rank behind the PM and Deputy Prime Minister and right alongside the Minister of Justice. We will get to hear from all of these Ministers this week, but Marco Mendicino gets to set the table.
The second reason that testimony from the Minister is crucial, is that he has made some controversial remarks previously to suggest that law enforcement agencies had told him that they needed the Emergencies Act powers to end the Freedom Convoy protest. The record suggests that never happened.
As Minister Mendicino opened his testimony, two things stood out. One was that the Minister was alert to the disruptive potential of the Freedom Convoy several days before it arrived in Ottawa. He asked for a briefing from the RCMP on January 25 (the main convoy elements arrived on January 29). A second interesting reveal was that the Minister wasn’t entirely satisfied with the assessment he was receiving that suggested the Freedom Convoy presence in Ottawa would be very short-lived. He was quite right to exercise a challenge function in that regard. The Minister was doing so on the basis of security agency reliance on selective social media reads, and a common sense view that a convoy that involved a massive effort from across the country to travel in numbers to Ottawa was very unlikely simply to come, hang out in Ottawa for a weekend, and then leave. As we have seen, law enforcement agency anticipation of a short-lived protest was based on little more than thin air. Only the OPP’s “Project Hendon” reports pointed in a different direction, and we have heard lots of testimony that the Hendon reporting simply didn’t penetrate widely to recipients at the federal government level. There is no indication that the Minister read them or was briefed on them.
As the testimony entered the chronological territory of the first sustained week of the Freedom Convoy occupation of Ottawa (the week of January 31), Minister Mendicino wanted action and was already concerned that the Ottawa Police Service had lost control of the situation, especially on Wellington Street, which bisects the Parliamentary precinct and key government offices, including the Prime Minister’s office and the meeting rooms for Cabinet. Mendicino’s chief of staff talked about his Minister being “amped up.” Later the same week, the Minister was being told that the resources available to the Ottawa Police Service, the police of jurisdiction, was completely inadequate and that police action could be overwhelmed by counter-action by the protestors. The Minister was also getting worrying intelligence about the mix of former law enforcement and military personnel in the Freedom Convoy mix in Ottawa, especially at the ”staging ground” (Coventry Road) that had been established in a large parking lot next door to a Canadian Tire store just south of downtown. This was concerning because of the degree of tactical sophistication that might be available to the protesters to counter efforts by law enforcement.
A potentially important gap opened up in testimony between the Minister’s outlook on threats presented by the Freedom Convoy and the approach that CSIS took to it. The Minister stated that his perspective was that the Freedom Convoy had express political intentions in terms of forcing a change to government public health measures and possibly even forcing a change in government. Yet in the CSIS lexicon of extremist threats, CSIS was entirely focused on a category of threat they labelled “ideologically motivated violent extremism” (IMVE) and paid no known attention to another branch of extremist threat, which they called “Politically Motivated Violent Extremism,” (PMVE). PMVE threats would potentially align with a particular section (s2) of the CSIS Act (s2(d) commonly referred to as ‘subversion,’ which was not referenced in the invocation of the Emergencies Act.
The CSIS Public Report of 2019 provided the first public definition of these various categories of threat, none of which appear directly in CSIS legislation. CSIS described PMVE in the following terms:
“PMVE narratives call for the use of violence to establish new political systems—or new structures and norms within existing systems. Adherents focus on elements of self-determination or representations rather than concepts of racial or ethnic supremacy.”
(https://www.canada.ca/en/security-intelligence-service/corporate/publications/2019-public-report.html
CSIS officials have acknowledged that their new lexicon of threats poses complex challenges of interpretation and application. But the narrow, IMVE lens applied by CSIS to the Freedom Convoy protest posed another level of difficulty for the government as it edged towards invoking the Emergencies Act.
Ninety minutes on the clock into the Minister’s testimony. We now arrived at the crucial weekend of February 12-13, when Cabinet met to consider invoking the Emergencies Act. A key issue was an email message from RCMP Commissioner Lucki suggesting, just before a crucial Cabinet meeting on the evening of February 13, that law enforcement had not yet exhausted all its capabilities to deal with the Freedom Convoy. Minister Mendicino made two important points here. One threw the Commissioner a little way under the bus by stating that the RCMP Commissioner had never communicated that message to him directly. The other was an indication that the Minister had a very sensitive briefing from the RCMP Commissioner on February 13 regarding an RCMP investigation underway about a “hardened” and armed “cell” at Coutts, Alberta, where RCMP had deployed undercover penetration agents. This news clearly had a huge impact on the Minister and he felt compelled to also (very carefully) inform the PM about this information, through his Chief of Staff, Katie Telford.
That the dangerous situation at the Coutts, Alberta blockade may have been the tipping point for the Government’s invocation of the Act, is now emerging from behind the curtain of secrecy. Minister Mendicino called the situation “far and away the most serious and urgent moment” …”a singular moment”…”a threshold moment” in the Freedom Convoy blockades. It will no doubt be an issue presented to all future Cabinet Ministers and finally the PM.
Minister Mendicino also linked the dramatic news out of Coutts to fears about what the future might hold in terms of other “chain reaction” violence and a situation that might speed further out of control. He also referenced one episode at the Surrey B.C. “Freedom Highway” border blockade, where a large military-style vehicle attempted to breach police lines.
Curiously, we have testimony from the CSIS Deputy Director of Operations, Michelle Tessier, that the events at Coutts did not lead to any change in the Service’s view that the actions of the Freedom Convoy did not rise to the level of threats to the security of Canada, a definition embedded in both the CSIS Act and as a threshold in the Emergencies Act. I continue to be perplexed by this. (See my previous newsletter, “CSIS at bat.”)
On the CSIS front, the Minister did indicate that while he took seriously the CSIS assessment presented to Cabinet that use of the Emergencies Act might exacerbate the situation and lead to further radicalization. Nevertheless he said the Cabinet believed that the risks of inaction and failure to use the Emergencies Act were likely to lead to a worse outcome.
Examination-in-chief ended with a question about the threshold requirement in the Emergencies Act of a threat to the security of Canada. Mendicino made two arguments. One, not entirely satisfactory, was that the Emergencies Act thresholds needed to be considered in their totality and the CSIS Act threshold should not be read too narrowly. What this means exactly remains, to me, unclear. In reality all elements of thresholds in the Emergencies Act must be met. The CSIS Act threshold is clear and cannot be dodged. That said, it is subject to interpretation and ultimately to political judgement by the PM and Cabinet—to which they will be held to account, including by the Commission. I think Canadians need a clearer answer from Ministers about how they felt the CSIS Act threshold in the Emergencies Act was specifically met, not a vague assertion of a “wider” perspective.
The other answer from the Minister, more practical in nature, was that the invocation of the Emergencies Act “worked.” Certainly it is the case that the occupation of Ottawa and remaining border blockades were successfully cleared and held, as a result of police action following the invocation of the Emergencies Act. The extent to which the successful police action was predicated on the availability of Emergencies Act powers remains subject to much dispute and will ultimately be difficult to adjudicate. Why? Because it revolves around such matters as the deterrent effect of financial measures included in the Emergency Act regulations to freeze accounts, and the clarity provided in the Emergencies Act to identify protest no-go zones so as to interdict the movement of people and supplies to designated areas, as a prelude to enforcement action. We will also, of course, never know whether the police action that was planned would have worked as successfully without Emergencies Act powers.
The Minister was not asked about the evidence that the CSIS Director had told the Prime Minister that his opinion was that the use of the Emergencies Act was required. Nor was he asked about any legal opinions provided by the Department of Justice to justify the use of the Emergencies Act. Expect to hear more about this when the Minister of Justice testifies on Wednesday. The Prime Minister may address the question of why he explicitly wanted to have the CSIS Director's advice on February 13 and how that conversation had gone.
The Public Safety Minister was a strong performer before the Commission. His presentation underscores the fact that the Government believes it has a strong case to make for invocation of the Emergencies Act. That degree of confidence will be tested throughout the remaining testimony by Ministers, culminating in a historic day on Friday when the Prime Minister takes the stand before the Commission. That won’t be anything like a normal day in Parliament.
Stay tuned, as they say.