After six weeks, more than 70 witnesses, and the submission of more than 7,000 documents into evidence, the public hearing portion of the Public Order Emergency Commission wrapped up on Friday.
As the marathon hearings wrapped, Commissioner Paul Rouleau said he is satisfied that he has the information he needs and is now well positioned to be able to answer the key questions he went into this process with: Why did the federal government declare the emergency? How did it use its powers? And were those actions appropriate?
Following Prime Minister Justin Trudeaus hours of testimony, the national inquiry examining the federal governments invocation of the Emergencies Act concluded with what Rouleau described as summary positions.
While all parties with standing—from the convoy organizers to the province Alberta—will have the opportunity to later submit in writing their fulsome closing arguments, heres a rundown of some of the concluding remarks from central players in the commission.
GOVERNMENT OF CANADA
There were reasonable grounds for the governor in council to believe that a public order emergency existed, that special temporary measures were necessary to resolve it. The decision to invoke the Emergencies Act responded to the volatile, escalating and urgent situation of serious threats of violence to persons and property across the country. There were threats to the security of Canada in the form of illegal blockades at key border ports of entry… There was also the potential serious threat of weapons and threat actors at other illegal protests. In addition, there was the unprecedented unlawful occupation in Ottawa, which was described by the chief of police as a tinderbox. The evidence confirmed the unorganized chaos that gridlocked the city. Council for the convoy Mr. Wilson admitted that this illegal occupation attracted individuals and groups with violent tendencies, like moths to a flame, in his words… There were also serious threats to the economic security of Canada and its trade relationship with the U.S.… The evidence confirms that these well-financed illegal blockades across the province and country were interconnected, loosely co-ordinated, and appeared designed to stretch police resources and overwhelm their capacity to respond effectively, said Robert MacKinnon, who is one of the lawyers representing the federal government.
The government exceeded their jurisdiction, both constitutionally and legislatively… The Government of Canada chose use of force—that is state violence—over peaceful negotiations, and democratic engagement with the Canadian people. The sad irony is that the protest in Ottawa was fundamentally about government overreach… By invoking the Emergencies Act, the government stepped even further into their oppressive government, by quashing the most fundamental right that belongs to a Canadian democracy… This public inquiry is more than just looking into circumstances that led to the governments decision to invoke the Emergencies Act. It is the beginning of a journey of rediscovering of what it means to be Canadian… If there ever was a time for a prime minister to step down, now is that time, said Eva Chipiuk, one of the lawyers representing the convoy organizers.
Weve heard a lot of evidence about tools in this case. And I would say that the Emergencies Act and tools is a bit of a chicken-and-egg problem. Does the emergency arise first and then the Act provides for tools to deal with the emergency? Or can an emergency arise because there arent sufficient tools to deal with the situation? I tend to think its the former and I think there is a concern that the Emergencies Act should not be used simply as a way to fill in the gaps in the law. That was never its purpose, said Mitch McAdam, one of the lawyers representing the Saskatchewan government.
Consultation with the provinces is required by the Emergencies Act. This is extremely important to our constitutional system. It is not a suggestion to which the federal government can just pay lip service... Weve heard extraordinary evidence that the Government of Canada did not want to raise the potential invocation of the Act with the provincial governments until more than a few hours before it would be invoked on February the 14th, because they were afraid that the information would be leaked to the public. And yet, the federal minister of emergency preparedness himself spoke to more than one national media outlet the day before, said Mandy England, one of the lawyers representing the Alberta government.
CITY OF OTTAWA, RESIDENTS
Most significantly commissioner, by Monday, Jan. 31, the Ottawa police has already realized on that day that they had made these major mistakes and they acknowledged internally that they were overwhelmed and did not have the capacity or the resources to police or manage these protests… Now what was going on after that? We know the Ottawa police refrained from enforcement in most cases because of officer safety, including bylaw officer safety. And if the officers arent safe, how can citizens and residents feel safe? They cannot. They were not… These convoy protests stretched our Constitution in every way. Our Canadian Charter of Rights and Freedoms and our cherished right to protest, was it stretched too far? I think clearly it was. But you know, the fact that our authorities showed so much tolerance for so long… I think speaks a lot about our country, said lawyer Paul Champ, who is representing the Ottawa Coalition of Residents and Businesses.
We submit there are five key questions that need to be addressed in response in particular to the Ottawa situation…When did a lack of intelligence or lack of co-ordination among institutions responsible for collecting or analyzing intelligence affect their response to the Freedom Convoy?... Was there a delay in sending additional police resources to Ottawa and if so, what caused or contributed to that delay? … Was Windsor, Ont., the priority and if so, who was responsible for that decision? … If the lack of a plan or difficulties with achieving unified command caused delay, how could these issues have been addressed and resolved more quickly? … The last one, number five, is the role of negotiation and engagement with protesters in situations such as this and the relationship between civilian authorities and police when participating in such discussions, said City of Ottawa legal representative Alyssa Tomkins.
OTTAWA POLICE, SLOLY
It is not in dispute that the protest, which became an illegal occupation, was unprecedented in this country. The fluidity and volatility of the situation was caused by the presence of large trucks spread throughout downtown, coupled with protesters whose numbers swelled to the thousands during weekends, and a crowd that included children. That too, is not in dispute. Having heard the evidence you can now understand and the public can understand the intractable problem faced by the police, which was how to safely and the occupation without injury or loss of life, to the community, to the protesters and to the police officers on the ground… You heard a great deal of evidence about the intelligence that existed in the days before the arrival of the convoy, what it meant, and how law enforcement should have responded to it. We asked them to carefully review that evidence to determine whether the perceptions of some of the witnesses in that regard is as a result of hindsight bias. No one knew that a protest about vaccine mandates, which started off as peaceful and law abiding, would become an occupation, said lawyer David Migicovsky, who is representing the Ottawa Police Service.
More members of the OPS testified and for longer than members of the other police services. Chief Sloly himself was in the witness box twice as long as any other witness in the proceeding. This intense scrutiny of Chief Slolys role during the three weeks under review establishes, though, that he performed his duties in good faith to the best of his abilities and he dedicated himself to the passionate defence of the City of Ottawa, its residents, the membership of the OPS, the right of lawful protest, and the safe and responsible end of the illegal occupation. He exercised his authority under extremely difficult circumstances… struggling to recover from the challenges of the global pandemic and of course adjusting to a new chief from outside its service implementing a change mandate, said former Ottawa police chief Peter Slolys representation, Tom Curry.
CIVIL LIBERTY, CONSTITUTIONAL ADVOCATES
On first reading in Parliament, the Emergencies Act only required that the governor in council be of the opinion that a public order emergency exists in committee. The Act was amended to require that the governor in council believe on reasonable grounds that a public order emergency exists… Commissioner Rouleau, you must determine whether the governor in council had reasonable grounds to declare a public order emergency. We say that you must conclude that reasonable grounds did not exist… It is simply not enough as a matter of law to say that cabinet relied on a broader set of inputs to reach this decision, said Canadian Constitution Foundation representative co-council Sujit Choudhry.
The legal threshold to make use of the Act was not met, and a creative and privileged legal opinion from the government that says otherwise doesnt make it so. The prime minister agreed that the threshold is no lower to invoke the Act and restrict the rights of all Canadians than the standard set out in the CSIS Act to investigate and surveil a single individual. In our submission, the government exceeded the bounds of the law in taking the steps it did, said the Canadian Civil Liberties Association representative Cara Zwibel.