After six weeks of testimony, dozens of witnesses, and a few moments of drama, the Public Order Emergency Commission has concluded its fact-finding hearings.
Having watched it all, it’s even more apparent than it was in February that the Emergencies Act was an unnecessary overreach to clamp down on what remained a peaceful protest until the end.
In the last week and a bit of testimony, the discussion in the hearing room – and in the media – was dominated by an esoteric debate about the Emergencies Act and its definition of a “threat to the security of Canada.”
As I explained over at True North and as was discussed ad nauseam by POEC lawyers and witnesses, the Emergencies Act outsources its definition of a security threat – a prerequisite for a public order emergency – to the Canadian Security Intelligence Service Act.
Neither CSIS nor law enforcement agencies thought there was any threat to the security of Canada. That being said, the CSIS director, David Vigneault, nonetheless said he supported the Emergencies Act’s use. He squared this apparent inconsistency by saying that there is a different threshold when the CSIS definition is used for CSIS purposes versus when it’s used for the purposes of the Emergencies Act. If he’s correct, this is a distinction no one has bothered to write down in either piece of legislation.
The government’s national security and intelligence advisor, Jody Thomas, took a similar approach – though she at least admitted that she was making up her interpretation on the fly based on what she thought the Emergencies Act should say, rather than what it actually says.
When Trudeau took the stand, he rebuffed the Thomas approach by saying the thresholds are the same, but cabinet has more “inputs” into its analysis than CSIS does.
Trudeau has had nearly 10 months to come up with a compelling rationalization for the Emergencies Act. It’s not clear whether this redefinition of a security threat has taken place in that time, or if the government had concocted the legal pretzel before invoking the Emergencies Act in the first place.
Why this is unclear is because government lawyers have vigorously asserted solicitor-client privilege to prevent any documents or testimony about legal advice the government might have received from seeing the light of day.
Solicitor-client privilege is sacrosanct, but the government is supposed to be representing the people and this is supposed to be a public inquiry.
Procedural questions and transparency issues aside, it’s clear the government failed to make its case.
If justifying the Emergencies Act requires legal gymnastics and technicalities, it’s because the facts of the case don’t readily support it.
With no evidence of espionage or sabotage, foreign influenced activities, acts of serious violence, or covert unlawful acts, the debate shifted to a redefinition of the very threats the Emergencies Act was intended to address.
At the outset of the commission’s testimony phase, there was a large question mark hanging over it all. Was there some bit of explosive evidence that hadn’t yet been revealed? Had police been holding back? Was there actually an uncontainable security threat in Ottawa or elsewhere?
As police chiefs, intelligence officers, and cabinet ministers testified, no such smoking gun materialized.
The story that was told throughout the six weeks of testimony was of an organic, grassroots movement, which, however disorganized and disjointed it might have been, was peaceful.
Attempts at indicting the convoy delved into rumour and hearsay. Someone heard about someone who went to school with someone who once waited at a bus stop with someone who had their mask ripped off by a protester, or something to that effect.
When new information did out in the proceedings, it generally made police or government look bad, not protesters.
Liberal staffers trying to turn the convoy into a comms victory, cabinet ministers joking about sending in tanks, police making up new definitions of the word “violence,” and so on.
In his opening remarks, Commissioner Paul Rouleau quoted former Supreme Court of Canada justice Peter Cory:
"One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or skepticism, in order to uncover 'the truth'."
The more into the weeds the lawyers got about the intricacies of the Emergencies Act and CSIS Act, the more apparent it was that no facts existed to support the government’s narrative.
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