What we Learned, and didn't

A personal round-up on the Public Order Emergency Commission hearings

A marathon six weeks of public testimony and a further week of policy roundtables before the Public Order Emergency Commission came to an end on Friday, December 2. We now await the Commission’s report, which will first be presented to the Cabinet and then to Parliament in February of 2023.

I want to take a personal stab at identifying some of the things we have learned, and some we have not.

So let me start with what we have learned.

First, and reassuringly, actions were documented. Human memory will be fallible, and sometimes self-servingly so, but it remains back-stopped by records. The Commission has had access to an extraordinary quantity of those records, some 9,000 “exhibits” (trial speak). Some take classic shape in the form of policy documents. In addition there is a mountain of email messages, text messages (be careful of the jokes you make), records of phone calls and meetings (including by “scribes”—who would have guessed), and, to my final surprise, tons of hand-written notes (we all seem to operate on the same level of illegibility). The Commission will have its work cut out digesting all this material, but it will serve future generations of historians (assuming there are future generations of historians).

Second, the Commission took us into a sort of master class in decision-making (not always masterful). Decision-making efforts stretched across two different chronologies. One was the longer watch on developments of the Freedom Convoy, which began before its arrival in Ottawa. The other was the concentrated period of crisis decision-making conducted by Cabinet, which only started up on February 10 and was essentially concluded over a single weekend on February 12-13. Discussions at the Incident Response Group (the “erg”) were crucial, and for the very first time we have a glimpse into the work done in this committee by officials and Ministers. The final moment of crisis-decision making was left to the Prime Minister. He recounted it dramatically in his own testimony on November 25. But we also got a lot of insight into the thinking along the way of key Ministers and into the advice and analysis provided by officials.

These insights were critical in giving us a sense of the varied triggers that led the Prime Minister and Cabinet to consider it necessary to invoke the Emergencies Act as a last resort. These triggers included economic harms, reputational damage (especially in terms of the US view of Canada), the uncovering of an armed faction at the Coutts, Alberta border blockade, loss of trust in the ability of authorities to resolve the protest alongside mounting concerns about counter-protests, and fears about the possibility of future, escalatory violence (the nuclear imagery of ‘chain-reactions’ cited by the Minister of Public Safety). Some of this was set out in the motion presented to Parliament on February 17 to support the invocation of the EA, but the outline is now a full story.

Crisis decision making is always impacted by the visceral, and for Cabinet Ministers, especially those in Ottawa, the visceral dimension included the sight of a Freedom Convoy crane outside the windows of the Cabinet meeting rooms and Prime Minister’s office, the rows of truck implacably parked on Wellington Street at the base of Parliament Hill, and the drum beat of online threats of violence targeting politicians. All of these triggers were part of the “mental maps” that influenced political decision-making. But there was one more element—the image of a Canadian-style January 6 insurrection that lurked at the corners of the imagination.

Third, we learned a great deal about policing challenges in responding to the Freedom Convoy. Various law enforcement agencies from the RCMP to municipal forces such as the Ottawa Police Service faced problems in understanding the nature of the convoy protest, its leadership and its objectives. Challenges included police leadership, response planning, coordination between different police forces, resourcing, and conflicts over what constituted legitimate guidance from political authorities. Perhaps the biggest lesson that emerges on the policing front is about the general approach to mass protests, with some experts suggesting that we have over-learned the lessons of the past, especially from events such as the G7/G20 police response. No doubt the golden mean between hard policing (enforcement) and soft policing (negotiations to "reduce the footprint” which we heard so much about, and avoid confrontation) is always challenging. We don’t want police in Canada automatically reaching for their batons and riot gear. But the assumption that we approach all mass protests as lawful until they are not, which seemed to be the working philosophy regarding the Freedom Convoy, also doesn’t seem very workable. New thinking is needed about mass protest movements and their dynamics, particularly in an age of increasing anti-authority fever, political polarization, and mobilization via social media echo chambers.

Fourth, we learned a great deal about intelligence and threat assessment. I mean A LOT. No one had heard of Project Hendon, the OPP’s remarkable effort to study the Freedom Convoy, prior to the Commission hearings. Unfortunately, too few decision-makers had heard of it either, or if the Hendon reports crossed their desks, paid much attention. No one had heard of the RCMP’s IMCIT (Ideologically Motivated Criminal Intelligence team), whose analysis was not particularly strong and displayed some sympathy towards the protesters. The Ottawa Police Service’s pre-convoy arrival threat assessment was a prime example of how not to write a threat assessment. ITAC (Integrated Terrorism Assessment Centre) reports rarely make it into the public domain (a couple were leaked to free lance journalist Justin Ling during the Freedom Convoy, setting off a hunt for the leaker that went nowhere). The Commission got the full set and is now left with the challenge of trying to understand why the National Security and Intelligence Adviser to the Prime Minister was left to rely on them, but yet did not feel they provided her or Cabinet with the integrated threat assessment picture that was needed. The answer to that question, I suspect, lies in the nature of the ITAC reports—narrowly focused, generic, and not all that helpful for decision-makers. But let’s see how all this is treated in the Commission report.

I have concluded that there were real intelligence failures, especially early warning failures, that led in turn to policing failures, and brought the country to a point where the invocation of the Emergencies Act was considered necessary by the Prime Minister and Cabinet. The Commission report may or may not make these linkages.

But the most dispiriting thing I heard from the Commission testimony came in policy roundtable remarks by a former National Security and Intelligence Adviser, Richard Fadden. Mr. Fadden said that he didn’t think that intelligence issues were worthy of the “star billing” that they had received at the Commission. I think he meant two things by this. One, as he indicated, was that we need to pay more attention to the exercise of political judgement. I agree. The other was that in the Canadian system, Ministers as decision makers have access to a wide range of information, of which intelligence is only one part, and not necessarily considered the most valued input. This view seemed to be confirmed by Chrystia Freeland, the Minister of Finance and Deputy Prime Minister, in her testimony. If this is the reality of the situation, it both confirms various statements made about the poverty of attention paid to national security issues and suggests there is a real problem in Canadian senior decision-making circles around understanding the role of intelligence in policy-making.

It is not that intelligence should be considered the only source of information for decision-makers—that would be unrealistic. But it has to be considered the most important and one to be ignored at peril. That Cabinet acted to invoke the Emergencies Act without having access to a formal and comprehensive intelligence assessment on the Freedom Convoy threat seems to me to be a real weakness in the system that must be remedied. Cabinet decisions will not be dictated by intelligence assessments, but they must be informed by them. We need to find senior leadership in the system that understands this. The role of a driver of change could be performed by the National Security and Intelligence Adviser to the PM, but she will need the backing of the Clerk of the Privy Council and Ministerial buy-in. The Commission report could provide valuable ammunition.

We have also learned much about the legislative framework in which decisions were enacted, above all the Emergencies Act, but also the referent CSIS Act. Both are decades old and clearly in need of modernization. Recommendations for change will be a principal outcome of the Commission’s report.

We have learned that the CSIS Act is narrowly focused, by design. It was a product of a time of scandal and of a Cold War context. The Emergencies Act, almost as equally old but with a different history, was constructed with multiple, intersecting thresholds for its invocation, purposefully to make it difficult to use. Most of the Commission’s attention has been drawn to the question of whether the CSIS Act threshold of threats to the security of Canada had been met. It was certainly confusing to learn that CSIS felt that the threats posed by the Freedom Convoy never amounted to threats to the security of Canada such that it could utilize its more intrusive investigative powers under the Act. Yet, at the same time, the Director of CSIS could advise the Prime Minister that the invocation of the Emergencies Act was required. We heard the Minister of Justice and Attorney General tell the Commission that the Emergencies Act engages a wider definition of threats to the security of Canada, calls on wider advice, is used for a different purpose than the CSIS Act, and involves different decision-makers (the PM and Cabinet). All true. The controversy over whether the CSIS Act threshold was met will, in my view, fade away. Others will disagree. There are other aspects of the Emergencies Act thresholds that we simply didn’t hear enough about.

If the surprising state of the records, insights into decision-making processes, policing challenges, intelligence problems, and legislative powers are some key things we have learned (I am sure there are many more), it is important to consider what haven’t we learned.

Remaining puzzles, or mysteries:

The OPP officer in charge of Project Hendon and its intelligence apparatus, Superintendent Pat Morris, reminded the Commission that there are two different kinds of knowledge challenges—puzzles and mysteries ( a formulation made earlier by US expert Greg Treverton in his book, Intelligence for an Age of Terror). Puzzles can be sorted into a picture with the right informational pieces. Mysteries are a different thing altogether and may ultimately be unknowable.

Into the puzzle category I put elements of the Freedom Convoy organization and planning. Just how coherent and well thought out Freedom Convoy planning was remains unclear. The testimony from Freedom Convoy organizers that took up a week of the Commission’s time (way too long!) was often an attempt at exculpation, rather than explanation. The Freedom Convoy may have been driven by an underlying strategy, or it may have been more organic and unplanned. The various protest choke points, occupation in Ottawa, border blockades from Ontario to B.C., may have been deliberately orchestrated, or not. We didn’t get answers during testimony. Hopefully we will learn more about this in the Commission report.

Also in the puzzle category I would place the question of why the government acted to invoke the Emergencies Act when they did (on February 14, the seventeenth day of the Freedom Convoy presence in Ottawa), rather than sooner, or later. There was no bullseye on that question during testimony.

How about mysteries?

There are many.

Who were the dominant voices in Cabinet? Which senior officials were most trusted and respected in terms of advice? We know player names and titles, but not their game day value. Future ministerial memoirs (if any) may tell a tale.

In invoking the Emergencies Act, the government had to align its understanding of the Freedom Convoy as a national security crisis to the thresholds in the Act. The Emergencies Act describes a situation “that arises from threats to the security of Canada and that is so serious as to be a national emergency.” We know the definition of threats to the security of Canada was borrowed from the four part structure in s2 of the CSIS Act (espionage, foreign interference, serious threats to persons and property with a motivational element, subversion). The government settled on threats to persons and property as its justification.

The concept of a national emergency was further defined in the Act in this way:

“a national emergency is an urgent and critical situation of a temporary nature that

a) seriously endangers the lives, health or safety of Canadians ands is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.”

The first part of the national emergency definition is easily met. Whether a) was met and whether the “effectively dealt with” clause was also met will be endlessly disputed. But Cabinet is the decision-maker and Parliament gets its says.

Crucially, the Government was operating without a working definition of national security or any strategic policy guidance. There was no easy match between the Emergencies Act general thresholds and the complex reality on the ground. How senior officials and Ministers came to this alignment remains one of the overarching mysteries, and not one that would be solved simply by seeing the legal advice provided by the Attorney General.

Then there was the question of democratic legitimacy and how it was understood. What did the government think the Canadian public understood about the threats posed by the Freedom Convoy? Was it confident that the public, or enough to it, shared its view about a national security crisis requiring the use of the Emergencies Act? Here the government may have relied more on political staffers and their feel for the public mood than we truly appreciate. The extent to which the government was attuned to media reporting is also an unknown.

The biggest mystery of all, in my book. The counter-factual. We can’t know what would have happened if the Emergencies Act was not invoked. The notion that the Emergencies Act regulations, once proclaimed, served as an important deterrence is not susceptible to measurement. Without this purported deterrent, what might have happened? Can’t know. We can’t know whether the government’s fear of a worsening future was real, imagined or exaggerated. That future never arrived at the station.

What we do know is that government and the Canadian public are unused to thinking about national security threats and crises. The final mystery is whether the events of the Freedom Convoy, and the Commission Report, will change thinking and force greater attention to 21st century security threats.

Or maybe that is a puzzle.