It was a suitably foggy morning in Ottawa. The Prime Minister had come to the Commission with a singular charge. It was to dispel what Minister Freeland called the “fog of war” that surrounded the hurried consultations in Cabinet prior to the invocation of the Emergencies Act on February 14, 2022. To be clear about the government’s rationale for taking a “last resort” measure in the face of the Freedom Convoy protests in Ottawa and at border choke points across the country.
I have begun to think of the drama that has unfolded during weeks of testimony before the Public Order Emergency Commission as a kind of detective story. We want to know why the gang did it, and how they did it. Unlike a detective story, the gang has an obligation (of sorts) to explain whether it was lawful. I saw ‘of sorts’ because there is the weighty instrument of solicitor-client privilege which the government has invoked to protect the legal advice from the Attorney General regarding the lawfulness of invoking the Emergencies Act.
The fog of war rolled in early for the Prime Minister. He admitted that the expectation was that the Freedom Convoy’s stay in Ottawa would be brief. The basis of that expectation was not explored. The Convoy did not leave Ottawa after the first weekend.
More surprise took hold during the second weekend when the expectation, according to the PM, was that protest numbers and activity in Ottawa would decline. They didn’t. Why the government suffered this surprise is unclear.
You get the drift. The intelligence available to the PM, or at least his read of it, was faulty.
And then the blockade choked off the Ambassador Bridge at Windsor, a critical trade corridor for the Canadian economy. The blockade, again using weaponized trucks, was, once again a surprise. Surprise # 3. It followed on the surprise blockade at Coutts, Alberta.
This series of drum roll surprises—call it an intelligence failure—led to the calling together of a unique Cabinet committee, called the Incident Response Group. The uniqueness of this committee is partly its subject matter—major emergencies, national or international. It is also a matter of its composition, which involves both elected Ministers and senior officials. The señor officials were not there as wall flowers. They are meant to give fulsome advice; in fact, as the PM stated, to lead the conversation. By the third IRG on the afternoon of February 13, the idea of using the Emergencies Act had gelled, as well as a set of tools that the government planned to bring forward.
The Prime Minister affirmed that the senior officials and Ministers at the IRG were of one mind by February 13 that the use of the Emergencies Act was necessary. The following day, February 14, involved an orchestrated series of steps, from a caucus meeting first thing in the morning, on to a consultation with First Ministers that was hurriedly called. The last step involved receiving a memorandum from the Clerk of the Pricy Council signalling the professional advice of the civil service that the invocation of the EA was required. The Prime Minister then held a press conference at 4:30 on the afternoon of February 14 to announce the invocation of the Emergencies Act. Measures announced in regulations followed the next day.
But the testimony of the Prime Minister paused for a moment to allow for some reflection on the seriousness of the invocation. It was a go/no-go moment. The Prime Minister was a master of this dramatic and recreated scene, taking us though an internal thought process in which he recognized that the government was at a historic watershed moment. He also said he struggled with the no-go option and the possibility that a decision to step back and not utilize the act could have led to a more dire situation of public unrest. He might have had blood on his hands, if violence had broken out.
What came next, took us deeper into, not just the psychology of the moment, but the actual facts on which the government reached its determination to use the Emergencies Act and the way those facts aligned with the necessary thresholds in the Act. Here, the Prime Minister went beyond the testimony of the Minister of Justice and Attorney General, David Lametti, and also the Deputy Prime Minister and Minister of Finance. (If you wish, have a look at previous columns discussing the testimony of these Ministers: “Chrystia Freeland, Iron Lady;” and “The Minister of Justice: Two Hats, no Rabbits”)
Prime Minister Trudeau laid out the Cabinet view that the facts on the ground met the threshold requirement of a threat to the security of Canada, as defined in section 2 of the CSIS Act. The threats identified included a long list of eight elements, including the following (I paraphrase):
the weaponization of trucks as a protest tactic
the situation at the Coutts blockade
the weapons theft at Peterborough, Ontario (which turned out not to be connected to the Freedom Convoy events)
a concern that there might be weapons hidden in trucks in the Ottawa occupation/blockade
the use of children as human shields at the blockades (this brought a hiss from the audience)
threatening behaviour displayed against law enforcement officers (including swarming)
the presence of known IMVE (Ideologically Motivated Violent Extremists) actors in the Freedom Convoy
the outbreak of counter-protests, especially in Ottawa
Finally, the Prime Minister mentioned a theme that clearly weighed on the government—that the future could not be predicted and the government feared that the situation could get worse as the Freedom Convoy protests and blockades dragged on.
This was an elaboration of the reasons that the Government provided to Parliament to justify the invocation of the Act back on February 17. Interestingly, unlike the Section 58(1) explanation given to Parliament, as required by the Emergencies Act, the Prime Minister made no reference to threats to property, including critical infrastructure. The Prime Minister also leaned in a somewhat different direction from the testimony provided by the Deputy Prime Minister and Minister of Finance. Minister Freeland had placed great emphasis on threats to Canada’s economic security, which she indicated were inseparable from national security threats. Trudeau called this an “additional concern, not the primary one.”
The Prime Minister ended his testimony in examination in chief by underlining that he was absolutely confident that his government had made the right decision. He celebrated the fact that the system of governance had worked as it was meant to, in terms of advice provided by officials and decision-making by Cabinet. He also made the point that invocation of the Emergencies Act worked and was also needed for a brief period of time (nine days). He described himself as “serene.”
I suppose that is a necessary, learned art for a Prime Minister.
My impression, worth testing against the available evidence, is that government officials across all levels had been hypnotized by the same assumptions that led to the PM's early talking points about the protest representing an irrelevant fringe minority. At risk of tautology, an irrelevant fringe minority is not something that is capable of sustaining a multi-week occupation. That would have made it, at the very least, a relevant fringe minority. You can't get more relevant to the government's concerns than forcing them to consider the Emergencies Act.