Commissioner Paul Rouleau said on Friday that the federal government met the “very high” threshold needed to invoke the Emergencies Act last winter, citing “a failure in policing and federalism.”
“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote in his highly anticipated report, tabled Friday in the House of Commons.
“Invocation of the Emergencies Act is a drastic move, but it is not a dictatorial one.”
The document sheds new light on one of the most controversial decisions ever made by Prime Minister Justin Trudeau’s government. On Feb. 14, 2022, Trudeau invoked the Emergencies Act to end the protests that had blocked downtown Ottawa’s streets for nearly a month.
The protesters were angry with the government’s response to the COVID-19 pandemic, including vaccine requirements. They parked large vehicles on key arteries in the capital city and honked their horns incessantly for days.
It was the first time the law had been triggered since it was created in 1988.
By invoking the act, the federal government gave law enforcement extraordinary powers to remove and arrest protesters — and gave itself the power to freeze the finances of those connected to the protests. The temporary emergency powers also gave authorities the ability to commandeer tow trucks to remove protesters’ vehicles from the streets of the capital.
The law defines a national emergency as a situation that “cannot be effectively dealt with under any other law of Canada.” Further, a public order emergency can only be invoked when there is “a threat to the security of Canada” as defined by the Canadian Security Intelligence Service Act.
“In my view, there was credible and compelling information supporting a reasonable belief that the definition of a threat to the security of Canada was met,” Rouleau wrote in his executive summary, which runs to more than 200 pages. The full report is 10 times that length.
“I have concluded that cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable.”
The Ontario Court of Appeal justice said he reached this conclusion with some reluctance.
“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming,” he said in statements he gave after his report was made public.
“Reasonable and informed people could reach a different conclusion than the one I have arrived at.”
While Rouleau’s report largely exonerates Trudeau regarding his decision to invoke the Emergencies Act, the government does not escape criticism.
He said most of the measures put in place by the federal cabinet in response to the emergency were “appropriate and effective,” including the most controversial step taken by the government — freezing the bank accounts of protest participants.
Most mechanisms were appropriate: Rouleau
But he said elements of the emergency economic measures fell short.
For example, Rouleau said, there should have been a “delisting mechanism” for frozen accounts.
“If one of the objectives of the freezing regime was to convince people to leave protest sites, the regime should have had a mechanism to unfreeze accounts once people complied,” he said.
“The absence of any specific rules about unfreezing caused concern for financial institutions, who were unclear how to determine when an individual listed on a report provided by the RCMP was no longer a designated person.”
The commission also heard evidence that individuals with no connection to the protests were affected by the freeze orders if they had a joint account.
“It is clearly unjust for individuals with no connection to the protests to have their accounts frozen,” Rouleau wrote.
“The difficulty, however, is that this appears to have been unavoidable.”
Responding to the report, Trudeau said it was a failure of systems that led to his government’s decision.
“It was unfortunate, it was undesirable. We didn’t want to do it,” he said during a news conference on Friday.
“We’d gotten to the place where there was no other choice to keep Canadians safe than to do this.”
Rouleau’s report saved some criticism for the prime minister himself.
He said Trudeau’s reference on Jan. 27 to some protesters as a “fringe minority” likely inflamed the situation and hardened protesters’ resolve.
“I wish I had phrased it differently,” Trudeau said. “If I chose my words more carefully, things would have been easier.”
Rouleau also concluded that federal consultation with the provinces before invoking the act was “adequate” but “could, and likely should, have been better.”
Ontario government’s response was ‘troubling’
His report makes 56 recommendations to improve intelligence sharing, police response to wide-scale protests and the Emergencies Act itself.
Rouleau reserved some of his most blistering remarks for the Ontario government.
“I find the province of Ontario’s reluctance to become fully engaged in such efforts directed at resolving the situation in Ottawa troubling,” he said.
Rouleau said Premier Doug Ford and his cabinet were absent during a crisis in a city in their jurisdiction and skipped out on two “tripartite meetings” with federal and city representatives trying to collaborate on a plan.
“Given that the city and its police service were clearly overwhelmed, it was incumbent on the province to become visibly, publicly and wholeheartedly engaged from the outset,” Rouleau wrote.
Rouleau said claims by some witnesses that the Ontario government was trying to avoid political responsibility were hard for him to assess because Ford’s government did not participate fully in the inquiry.
The Public Order Emergency Commission summoned Ford and deputy premier Sylvia Jones to testify, but they resisted by filing an application for a judicial review and seeking a stay of the summons.
A Federal Court judge subsequently ruled Ford and Jones did not have to testify because of the immunity afforded them by parliamentary privilege.
The commissioner said that moments of urgency require leaders of governments at all levels “to rise above politics and collaborate for the common good.”
“Unfortunately, in January and February of 2022, this did not always happen,” he wrote.
Trudeau said the comment deserves consideration.
“I think we all have to make sure we are reflecting on what to take away from that,” he said.
Sloly not solely to blame
The Ottawa Police Service (OPS) also gets poor marks from the justice, who wrote that if city police had properly assessed the information and intelligence at their fingertips, it “would have told a different story.”
He said the city police response was marred by a lack of proper planning, intelligence failures and internal dysfunction.
“Much of the disarray in Ottawa was a result of the OPS’s incorrect belief regarding how long the protests would last,” the report said.
Ottawa police had access to “multiple sources of intelligence” that together “showed that there was a strong possibility that the Ottawa protests would extend past the first weekend, contrary to what OPS command believed.”
While Rouleau takes aim at some of former Ottawa police chief Peter Sloly’s leadership choices and decisions, he also said that it would be too easy to attribute all of the shortfalls and errors to him.
“As well, some errors on Chief Sloly’s part were unduly enlarged by others, to a degree that suggests scapegoating,” he wrote.
Rouleau praised officials in Windsor, Ont. — where protesters blocked the Ambassador Bridge, a key trade corridor — for avoiding the mistakes of the Ottawa police.
“Unlike in Ottawa, police integration in Windsor proceeded swiftly and smoothly,” the commissioner wrote.
The report said the Ottawa Police Service’s response didn’t get much better as the protest continued past the first weekend because it did not develop an overall operational plan to resolve the situation.
“Without contingency plans, the operational plan counted on the best and did not plan for the worst,” Rouleau wrote.
Rouleau rejects protesters’ claims protests were peaceful
During six weeks of testimony last fall, the Public Order Emergency Commission heard from more than 70 witnesses, including cabinet ministers and protesters.
Rouleau wrote that the “spark” for the early 2022 protests was more than two years of COVID-19 restrictions and the federal government’s decision to require that commercial truck drivers be vaccinated in order to enter Canada.
Growing distrust in government in certain segments of the population, coupled with government responses to COVID, “exacerbated” this pre-existing dynamic.
Rouleau said he accepts that COVID-19 had a profound impact on Canadians and they had a right to to lawfully protest what they saw as government overreach.
“I do not accept the organizers’ descriptions of the protest in Ottawa as lawful, calm peaceful or something resembling a celebration,” Rouleau wrote.
“The bigger picture reveals that the situation in Ottawa was unsafe and chaotic.”
He also dismissed the organizers’ claims that they were unaware of acts of harassment and intimidation directed at local residents.
Rouleau says situation could have been avoided
Rouleau’s report said while there’s no reason to believe that the self-styled Freedom Convoy was the product of a foreign disinformation campaign, the movement was marked by disinformation and misinformation.
“During the COVID-19 pandemic, foreign state actors had significant success spreading false information about COVID-19, public health measures, and vaccines, done as a means to sow mistrust in democratic governments,” said the report.
“As Associate Deputy Minister of Foreign Affairs Cynthia Termorshuizen suggested, ‘There really wasn’t much of a need for foreign state actors to engage significantly in the convoy information environment because there was already such a high level of disinformation surrounding it.'”
Ultimately, Rouleau concludes, “it is regrettable that such a situation arose here, because in my view, it could have been avoided.”
The Canadian Civil Liberties Association, which had standing during the commission hearings, said it will proceed with its judicial review of the government’s decision to invoke the act, which is before the Federal Court.
“It is significant that in his statement today, the factual basis underlying his conclusion was not overwhelming and that reasonable and informed people would come to a different conclusion than the one he did,” said lawyer Cara Zwibel
“Our view is that this threshold was not met.”
Rouleau made 56 recommendation
Rouleau’s report made many recommendations for reform. Here are a few:
The federal government — in conjunction with provincial, Indigenous and territorial governments, and police and intelligence agencies — should develop protocols on information sharing, intelligence gathering and distribution.
- Those same parties should consider the creation of a single national intelligence coordinator for major events of a “national or interprovincial or interterritorial dimension.”
- The province of Ontario should consider creating a major event management unit.
- The federal government, in conjunction with other governments and with police services, should comprehensively examine the scope and limitations on police powers in relation to protest activities.
- The federal government should examine the question of whether a department or agency of government should have the authority and responsibility to monitor and report on information contained in social media.
- The federal government should initiate discussions with provincial and territorial governments, in consultation with Indigenous governments and affected municipalities, to identify critical trade transportation corridors and infrastructure and establish protocols to protect them.
Rouleau also made recommendations regarding the Emergencies Act itself:
- The reference in the Emergencies Act to the definition of “threats to the security of Canada” in the CSIS Act should be removed.
- The Emergencies Act should be amended to require that the government deliver to the commission a “comprehensive statement setting out the factual and legal basis for the declaration and measures adopted, including the view of the Minister of Justice of Canada as to whether the decision was consistent with the purposes and provisions of the Emergencies Act, and whether the measures taken under the act were necessary and consistent with the Charter.”
- When a government declares a public order emergency, it should be bound to produce to a public commission all of the inputs to cabinet and to ministers on the issue.
- The government should be obliged to provide a commission of inquiry with all of its documents and information, without redactions due to irrelevance, national security, confidentiality or similar public interest privileges.
Trudeau committed Friday to having a plan in place within six months to tackle the recommendations.
NDP says report serves as warning
During a news conference, Conservative Leader Pierre Poilievre accused Trudeau of “dividing Canadians.”
“He is the division,” he said. “His purpose is to divide and conquer. He believes that if he can turn Canadians against each other, then they’ll forget how miserable life has become after eight years of his tax hikes, inflation, and out-of-control cost of living.”
The NDP’s Matthew Green thanked Rouleau for his report and for the commission’s work.
“It is clear that Justice Rouleau believes that the highest standards, the thresholds for the invocation of the act were met,” he said.
Green said that the report should serve as a warning to Canadians about what happens when there is a failure at “all levels of government, in policing and in societal cohesion.”
“This report is an indictment of the failures of the multiple levels of policing to coordinate a response to the growing unrest and the disruption, and ultimately, the harm caused to citizens across the country,” he said.