The federal government’s top public servants defended the rationale to invoke the Emergencies Act as they testified on Nov. 18, telling the Public Order Emergency Commission that a threat of serious violence was the main ground for the invocation.
“What we use is really 2c,” said Deputy Clerk of the Privy Council Nathalie Drouin. “The real ground was 2c.”
Drouin was referring to section 2 of the Canadian Security Intelligence Service (CSIS) Act, which defines threats to the security of Canada. Section 2c deals with threats or the use of acts of serious violence for ideological reasons.
The Trudeau government invoked the act to deal with cross-country protests and blockades in February. The act’s powers were only used to clear the Ottawa trucker-led protest, as border blockades were resolved prior to the invocation or shortly afterward without police intervention.
Drouin testified alongside Clerk of the Privy Council Janice Charette, and they explained the memorandum they prepared for Prime Minister Justin Trudeau, which upon his approval would declare the emergency.
The Feb. 14 document contains a section called “Test for Declaring a Public Order Emergency,” which includes the definitions of threats that need to be relied upon to invoke the act and which are taken from section 2 of the CSIS Act.
These include espionage or sabotage, foreign-influenced activities, terrorism, and violent revolution.
It also says a national emergency is a critical situation that cannot be dealt with by provinces or any other law.
“PCO [Privy Council Office] is of the view that the examples of evidence collected to date [redacted for solicitor-client privilege] support a determination that the two criteria required to declare a public order emergency pursuant to the EA [Emergencies Act] have been met,” says the memorandum on the issue of meeting the test.
Charette and Drouin said the test was met based on the CSIS Act definition, but when challenged with the fact that CSIS itself, which has the duty to investigate those threats, did not consider the events to have met any threat definition, they moved away from the definition.
“It’s not because [CSIS] concludes that no other individuals or groups met the trigger that the convoys as a whole don’t represent a serious threat to Canada,” said Drouin, who previously served as the deputy minister of justice.
“And so we made the recommendation and the government made its decision based on the cumulative effect,” she said.
CSIS Director David Vigneault has yet to testify at the inquiry, but the summary of his interview with commission counsels has already been entered as evidence. It says his agency did not see the events as a national security threat.
Vigneault indicated however that a determination that a national security threat exists could be made under a broader definition, an argument also advanced by Thomas, Charette, and Drouin.
‘Indicators’ of ‘Threats’
This issue of officials not being able to point to a specific threat to national security was raised by commission counsel Shantona Chaudhury.“Is the position that you’re articulating essentially that there can be a threat of serious violence without a specific ... threat having been identified?” she asked.
Charette answered that the word “threat” can be used in different ways and that indeed there was no specific site, event, or actor; no bomb threat; nor an event like the U.S. Capitol breach on Jan. 6, 2021.
“There was a series of indicators, which, in our view, were the threats of serious violence for all the reasons that I think Madame Drouin and I have tried to explain,” she said.
Drouin said that a movement itself could represent a threat to the security of Canada without any individuals taking part, and meet the threshold of a threat according to CSIS.
Vigneault’s interview summary does not make that distinction between the individuals and the movement, and only says the protests were at no point deemed a threat under the CSIS definitions.
Drouin also rejected the idea of assessing the different sites where protests and blockades were occurring for potential threats “while we were facing a national movement and situation.”
The events at Coutts, Alberta, where a group of individuals was arrested and said by the RCMP to be willing to use force against police if they attempted to clear the blockade, would likely meet the grounds of 2c for CSIS. The situation was dealt with by normal authorities.
No similar situation transpired at any of the different protest sites across the country.
Senior police officials testifying at the commission have cast doubts on the federal government’s claim there was a threat of serious violence that could reach the level of a national security threat.
