The Liberal government couldn’t justify invoking the Emergencies Act based on the existing definition in the legislation. So, it relied on a legal opinion to broaden its scope for declaring an emergency. National Security Advisor to the Prime Minister, Jody Thomas, was appointed on January 11, 2022, weeks before she advised Trudeau to declare a national emergency.
Some will remember that the 1988 Emergencies Act was passed by the Mulroney administration to replace the War Measures Act, which was last invoked during the October 1970 FLQ Crisis.
The Emergencies Act states that a “Public Order Emergency means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency. As the meaning assigned by Section 2 of the Canadian Security Intelligence Service Act.” Section 2 of the CSIS Act identifies four tests to signal that the threshold for a threat has been reached. 1) Act of Espionage, 2) Acts of Sabotage, 3) Acts of Serious Violence, and 4) Plot to overthrow the government. A threat may be domestic, like the FLQ Crisis, or foreign.
Some lawyers at the Public Order Emergency Commission in Ottawa insisted that the bar against invoking the Emergencies Act was rigidly defined and markedly clear. During cross examination many lawyers insisted the definition of what constituted a public order emergency was plain in its language and meaning. Since the power government is given once it invokes an emergency is sweeping, there is no basis for hypothetical or flimsy ruminations for invoking the Act.
Cara Zwibel, of the Canadian Civil Liberties Association, asked Thomas, “…you understand that currently the definition of a Public Order Emergency in the Emergencies Act is tied exclusively and exhaustively to the definition in the CSIS Act?” Thomas testified “The Federal Government legal opinion is different, and there will be legal arguments to that end.”
A Justice Centre lawyer, Rob Kittredge, took Jody Thomas through the CSIS Act tests for declaring an emergency. She confirmed there was no espionage, no sabotage, no foreign interference.
But what about serious violence? Thomas replied: “There was continual violence in the streets of Ottawa…” Kittredge asked her to be specific about what she meant by “continual violence.” Thomas named “harassment, people being followed, people being intimidated, the noise, the pollution…” Yet, incidents of harassment, stalking, and physical intimidation are matters police address every day across the nation upon receiving a complaint. Eventually, Thomas conceded, “No, not serious violence.” But reframed matters stating, “A Public Order Emergency is broader as defined in the CSIS Act.” Thomas elaborated, “There’s a range of threats that need to be considered when you’re talking about this country, economic security; the threat of IMVE (ideologically motivated violent extremists); the rhetoric of threats against public figures; the inability to conduct a livelihood in the City of Ottawa — as an example, the Coutts border blockade if we’re going to speak about the specific example; the threat to public institutions and the undermining of the confidence in public institutions.”
Thomas identifies “economic security” as a national security threat. In contrast with the cross-border blockades in February 2022, the Liberal government dealt with the 2020 protests with economic impacts differently. From January to mid-March 2020, First Nations protesters variously blocked construction of a BC pipeline, disrupted BC Ferry sailings, shut down CN Rail freight and VIA Rail passenger service for over a month, blockaded an Ontario highway and more. Through eleven weeks of economic disruptions, the Prime Minister maintained the importance of engaging in dialogue with protesters to resolve matters.
The Coutts border blockade and arrests of persons in possession of weapons, were addressed by the RCMP under existing Canadian law. Ottawa Police, Ontario Provincial Police (OPP), RCMP, Canada Border Service Agency and CSIS were pointing away from IMVE threats. CSIS reported on February 14 “Downtown Ottawa…was actually quite festive — not threatening to a passerby.” OPP intelligence officer, Pat Morris, who was providing intelligence for politicians noted the extreme lack of criminality. Jody Thomas worried about the “rhetoric of threats against public officials.” But by January 2023 no one involved in the convoy protests had been charged, or was facing pending legal action for uttering death threats against the Prime Minister.
During Jody Thomas’ testimony, she was reminded of her own briefing notes for a February 13 meeting that “City of Ottawa announced agreement with protest leader (Tamara Lich) that could lead to approx. 70 percent of trucks and cars [leaving] the residential areas in the downtown core over the next 24 hours…” By noon, February 14, as Serge Arpin, City of Ottawa Chief of Staff to the Mayor, testified, 102 protest vehicles had been moved out of a four block by five block area in downtown Ottawa. The protesters were on schedule to remove 75 percent of the vehicles from downtown Ottawa, and leave the city by February 16. Remaining vehicles were to be confined to Wellington Street.
However, the Liberals, on a legal opinion to expand the definition of threat, invoked the Emergencies Act. Asked about the basis for the legal opinion, Justice Minister, David Lametti, testified “For reasons of solicitor-client privilege (he) could not describe the various kinds of legal analysis relied upon by cabinet.” Justice Rouleau told Lametti that by taking this position the government is asking Canadians to “just assume (it) acted in good faith,” to just “trust us.” Asked if he agreed “that Section 2 of the CSIS Act has a different meaning…a different scope based in its reference in the Emergencies Act,” Lametti responded “I will neither confirm nor deny that.”
By expanding the definition of a threat to national security, Justin Trudeau invoked the Emergencies Act making “threat” fungible. Hopefully, the Rouleau Commission Report will remind the government, and Canadians, why the Act is by necessity so tightly defined and definitionally clear.
Ray McGinnis is a writer, and author of Unanswered Questions and Writing the Sacred. Earlier in his career, Ray was a program staff in education for the United Church of Canada, serving in several congregations, as well as at the denominations national office (1986-95). He attended the Commission hearings in mid-November, and lives in Vancouver.
Ray McGinnis has been documenting the abuse of power that took place in Canada during the Trucker Protest. Earlier this year he joined South African Public Policy Commentator and Blogger Hugo Kruger to discuss the Propaganda Techniques that were used to discredit the protest movement. Watch the video here. (1 hour 18 minutes)