Trudeau Says Threshold to Invoke Emergencies Should Not Be Lower Than for CSIS to Launch an Investigation

A heavily redacted document is shown on a projector by Sujit Chowdhury (L), counsel for the Canadian Constitution Foundation, as he questions Prime Minister Justin Trudeau at the Public Order Emergency Commission, in Ottawa on Nov. 25, 2022. The Canadian Press/Justin Tang

The threshold to invoke the Emergencies Act should not be lower than for the Canadian Security Intelligence Service (CSIS) to launch a national security investigation, Prime Minister Justin Trudeau told the Public Order Emergency Commission on Nov. 25.

“I would put to you that when invoking the Emergencies Act … the level of thresholds of the security threat that must be met cannot be any lower than it is when CSIS is proposing to surveil one person, that the threshold is no different. Do you agree with that?” asked Ewa Krajewska, counsel for the Canadian Civil Liberties Association.

“Yes, I do,” answered Trudeau.

Federal government officials and Liberal ministers have been claiming in recent days at the commission that the fact CSIS did not consider the protests a threat to national security was irrelevant to the declaration of a public order emergency.

CSIS Director David Vigneault himself said on Nov. 21 that even though his agency did not view the protests as a national security threat, he still recommended to Trudeau the act be invoked.

Trudeau and several federal officials and ministers have said that the CSIS Act pertains to whether the spy agency can launch an investigation into a potential threat to national security according to the threats defined in section 2 of its act, and that this does not translate into assessing whether there’s a broader national security threat under the Emergencies Act.

To declare a public order emergency under the Emergencies Act, the law says that there must be a threat as defined by section 2 of the CSIS Act.

Trudeau and others have said there was a threat under section 2c of the act, which pertains to threats of, or acts of, serious violence for an ideological motive.

The prime minister gave examples of “trucks used as potential weapons” and children being used as “human shields,” with reference to the presence of kids at the protests, and the arrests and seizure of weapons in Coutts, Alberta.

If CSIS did not see such a threat that met its threshold, the commission was not told which body or officials specifically made the determination that 2c was met.

But Justice Minister and Attorney General David Lametti told the commission on Nov. 23 that the Emergencies Act doesn’t give decision-making power to CSIS, as this remains in the hands of the cabinet.

Along with the CSIS director, other security and intelligence officials have testified at the inquiry that the protests did not represent a national security threat, including RCMP Commissioner Brenda Lucki who testified on Nov. 16.

The Ontario Province Police (OPP) intelligence chief Superintendent Pat Morris told the commission on Oct. 19 that his unit at one point assessed that the protests “potentially” posed a national security threat, but he said he was uncomfortable with the wording.

“I spoke about that with colleagues from the Canadian Security Intelligence Service and with the [RCMP] Integrated National Security Enforcement Team [INSET], and they did not see things that reached their threshold in terms of what would be deemed a threat to the security of Canada,” he said.