MORE FROM THE TOP BRASS

The Emergencies Act Commission heard many hours of testimony from key figures within Ottawa and Ontario policing between October 21st and the 31st. It was not surprising to learn how similar the perspectives of these witnesses were. What did come as a shock, however, was the resounding consensus that, from a policing perspective, the Emergencies Act was entirely unnecessary.

CHIEF SUPERINTENDENT PARDY

Ontario Provincial Police chief superintendent Carson Pardy led the team of subject matter experts who came up with the plan eventually implemented to end the protests. He testified that neither the provincial emergency declaration nor the federal Emergencies Act were necessary for ending the protest. Pardy offered, “In my humble opinion, we would have reached the same solution with the plan that we had – without either of those pieces of legislation [the provincial declaration of emergency or the Emergencies Act.]” He confirmed that, obviously, officers always maintained the authority to enforce local by-laws, the provincial Highway Traffic Act, and the federal Criminal Code. Those powers included the ability to ticket, tow, or seize vehicles, to prevent or restrict unsafe activities, or to keep people out of certain areas. More than that, not only did police not need the powers granted by the Act but, in Pardy’s assessment, the invocation failed to even expedite the process. He testified that protesters would have been removed from downtown Ottawa in the same timeframe, regardless.

INTERIM CHIEF BELL

The cross-examination of Ottawa’s interim chief revealed two things. The first revelation was Bell’s agreement with chief superintendent Pardy, with regard to the invocation. Bell declared that there were non-emergency powers available to exclude people from areas and that, without the invocation of the Act, “the OPS, the OPP, the RCMP, as part of a unified command, were going to clear the protests.” The second and greater revelation came from the internal intelligence analysis we got to see. The document arrived at the start of the protest, on January 28th, and showed an understanding that contradicted the opinions offered by political figures, pundits, and so many folks presented as experts.

The analysis notes how “business groups have been urging Ottawa to back down on vaccine mandates for truckers in order to relieve the congested supply chain with the United States.” It points out throngs of supporters all across British Columbia and Alberta, highlighting photos and videos of freeways and overpasses “utterly jammed” with “throngs of supporters” and “where vehicles in the convoy stretch highways as long as they eye can see.” The event is said to have “significant popular support … on a scale not seen in recent years” and is predicted to be “bigger in crowd size than any demo in recent history.” They note many millions of dollars crowdfunded and a Facebook group with 397,000 members –T “more than a tenth of the Canadian population.” The event is described as a powerful, organic “manifestation of deep discontent with how people feel they are being governed.”

The demographic of the convoy is assessed as being “very unusual,” in that it is not composed not of professional protesters with a niche complaint but of a silent middle-class majority who have emerged to express a broad discontent that has been long disregarded. The report offers that a truly organic and widespread protest springs up spontaneously and can enlist hundreds of thousands and even millions. It likens the convoy to France’s “yellow-vest” uprising, which came about in response to fuel prices, and offers that “the convoy appears to be this sort of protest.”

All of the above assessment came as a surprise to me because the Prime Minister, who had this same information, announced at a press conference prior to the arrival of the convoy in Ottawa that:

The small fringe minority of people who are on their way to Ottawa are holding unacceptable views that they’re expressing, do not represent the views of Canadians who have been there for each other who know that following the science and stepping up to protect each other is the best way to continue to ensure our freedoms, rights, and values as a country.

SUPERINTENDENT BERNIER

Like those before him, Ottawa Police Service Superintendent Bernier was asked if police have common-law powers to exclude the public from an area and whether those powers could have been used to clear the protest in downtown Ottawa. Bernier confirmed that police do have such powers and could have used them. Bernier also agreed with interim chief Bell’s assessment, and stated that his team would have carried out the operation that was developed and ready to go prior to invocation. Rob Kittredge, counsel for the Justice Centre for Constitutional Freedoms, asked if the powers granted police were essential to their job or merely made things easier. Bernier agreed that the Act was beneficial, not necessary. Bernier was also able to confirm that clearing protesters didn’t rely on emergency powers to compel tow-truck services. He said that tow services were procured, 34 trucks with willing drivers, and on their way prior to the Emergencies Act coming into effect. Further, he noted that before invocation he saw those trucks arriving in Ottawa.

COMMISSIONER CARRIQUE

When Ontario Provincial Police commissioner Thomas Carrique was cross-examined, he was asked if he agreed with the OPP’s head of intelligence, Superintendent Morris, who testified a week earlier that there was no credible intelligence of a threat under section 2 of the CSIS Act. Carrique confessed, “I would agree with that, yes.” He was then asked by counsel Miller, “And so it’s fair to say that, based on all OPP intelligence and the intelligence provided by the RCMP and federal intelligence agencies to the OPP, to your knowledge, there was no credible threat to the security of Canada, as defined in section 2 of the CSIS Act?” Carrique: “That would be my understanding, yes; as determined by Superintendent Pat Morris, in consultation with CSIS and the RCMP.”

Miller then spelled out for the record the legal distinction between three types of gatherings: lawful protest, unlawful assembly, and a riot. Miller also established that it was possible at any time for a city mayor or justice to read the Riot Act, compelling any group to disperse; or, alternatively, that anyone at any time could make an application to a judge who, if they agree, was able to grant an injunction requiring a disruptive gathering to disperse. Miller also spelled out that failure to obey such an injunction granted police permission to charge folks with violating a court order. Miller then asserted that, surely, any large group of people parking in a manner that violates the law could be considered an unlawful assembly. Commissioner Carrique agreed with all of the above.

Miller then asked Carrique if it was reasonable to assume that if the city or local police placed concrete barriers and/or construction equipment at either end of the street, to prevent vehicles from coming or going, that, in fact, vehicles and those who own them may not have felt or actually been free to leave; or at least that leaving was made significantly more involved than simply getting up and driving away. Carrique considered that a reasonable assumption. (Police had also been responsible for where vehicles parked and, in order to constrain the sprawl, had packed vehicles very tightly and in some cases three or four lanes deep over a block or more.)

Miller then called up the minutes from the February 10th Incident Response Group meeting. Page five, under the section heading Situation Overview, states: “The National Security and Intelligence Advisor provided an overview of the current situation. In Ottawa, … [t]there are indications that some protesters would like to leave but are unable to do so given physical barriers.” Carrique suggested that in such a situation, where it would be difficult to determine if someone was unlawfully assembled or, by contrast, rendered unable to leave, it would be up to the discretion of the officer, who would need to investigate the matter looking for reasonable and probable grounds for a charge of unlawful assembly. Miller concluded by offering evidence from the Ottawa Police Service, that shows all charges laid in the city during the whole of the protest, and reported that not one charge of unlawful assembly was laid.

FORMER CHIEF SLOLY

Sloly was Ottawa’s police chief when the trucker convoy arrived in Ottawa. He resigned at the height of the protest. That said, as Diane Deans, chair of the Ottawa Police Services Board, testified to the commission, folks on city council and within the Ottawa Police Service appeared to use the event to force him out. So whether he jumped or was pushed, so to speak, seems unclear.

Counsel Miller’s cross-examination included Sloly had him confirm the statements found in some briefing minutes. In the opening days of the protest, Sloly reported to the RCMP and OPP that there was no vandalism, nor any fires, injuries, or deaths. This was surprising because all we saw and heard in the media when the convoy arrived was about all of the vile vandalism and desecrations taking place all over town. We were told over and over about police conducting “several criminal investigations” into those activities. As I wrote at the time, those so-called desecrations were filmed and photographed and did not appear to be anything fitting such a categorization. Momentarily draping a Canadian flag over the shoulders of a Terry Fox statue or a woman from out of town causing no damage to a plaque that she stood on for two seconds (a plaque that is on the ground and has no barrier around it) seemed to me rather unlike anything I would call a ‘desecration’ and certainly not something I would wish to take up the time and resources of the police (never mind pretending that such amounts to some kind of national incident.) It’s worth noting that all these months later those same media were far less keen to report that police did indeed investigate, were able to identify those involved, and elected to not charge anyone with anything.

Miller also asked Sloly questions similar to those he asked commissioner Carrique. Sloly confirmed that police and the city arranged a variety of barricades to define and confine the protest, including cement barriers, large city-owned vehicles, and police cars, suggesting that those may have acted as an impediment to some folks leaving. Miller offered that a protest can cross the Rubicon from lawful to unlawful, taking it into the domain of section 63 of the Criminal Code. (If you go and look at the wording of the law the distinction is extremely faint and subjective. You go from lawful to unlawful when anyone merely deems lawful assembly likely to become a disturbance of the peace; not having done so, only appearing to be heading in that direction. Notice how tepid that is.) Miller asked, “Is it fair to say that the OPS and your office at no time prior to the declaration issued any form of formal notice to the protester that they had been deemed an unlawful assembly and must disperse?” Sloly: “That’s correct, sir.” Miller added that, similarly, a mayor, sheriff, justice of the peace, or judge of the Ontario Court of Justice, all have the ability to deem any assembly a riot once it has begun to ‘disturb the peace tumultuously’ (an indictable offence leading to imprisonment of up to two years.) Miller offered that no official ever declared a riot at any time nor did anyone present protesters with evidence or opinion that what they were doing was illegal. Despite there being no charges for so much as meager unlawful assembly, Sloly disagreed with Miller, saying that he felt it “very hard to believe that any individual could not understand there was a level of unlawfulness…” Miller responded by noting Sloly’s own evidence that there was a wild abundance of misinformation across mainstream news sources and social media. (For example, both news reports and also tweets from Ottawa city councillors declared that truckers set fire to the inside of an apartment building and tried to tie the doors closed, presumably attempting to kill everyone inside. Of course, the police investigated and deemed the rumors to be untrue.)

Christopher Diana, counsel for the Ontario Provincial Police, asked Sloly about the protester’s stated intention not to leave until their demands were met. Diana asked, “that’s something that you probably wouldn’t have experienced before, is it?” Sloly vehemently disagreed. He offered that there were “many demonstrations” with such demands, like recent Tamil-related events in Ottawa and Toronto or the gatherings around the country and at Ottawa's US Embassy protesting NATO bombings (which, at 76 days, lasted far longer than the trucker convoy’s 24.) Diana retorted, “Well, I’ll just put it to you that what’s not regular is that the protesters would come all the way across Canada, have millions of dollars of fundraising, lots of trucks and people all converging with that stated goal. That’s not regular is it?” Sloly baulked again, asserting that not all the protesters had such a goal and that “a lot of them” were not from afar but came from Ottawa.

To help understand whether there was a need for the Emergencies Act, counsel Kittredge, cited section 2 of the CSIS Act, asking if Sloly saw any credible evidence of espionage or sabotage. Sloly: “No, sir.” He asks about any evidence of “foreign influenced activities … detrimental to the interests of Canada.” Sloly said that he saw some information relating to foreign sources contributing to some of the convoy’s fundraising efforts and about the potential for folks coming up from south of the border. But he also suggested that it wasn’t for him to assess the substance or credibility of those threats. When asked about credible threats of ‘violence against persons or property for the purpose of achieving a political, religious, or ideological objective within Canada’, Sloly acknowledged a tremendous amount of threatening language on social media but nothing validated or corroborated. Lastly, Sloly was asked if he ever saw credible intelligence of “‘activities directed towards undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established systems of government in Canada’?” Sloly’s response was “No, sir.”