Front Burner - It was unprecedented. Was it also unjustified? That's up to the Emergencies Act inquiry

Episode Date: October 19, 2022

It's been eight months since convoy protesters took over downtown Ottawa and obstructed trade at U.S. border crossings. And now, over just six weeks, as commissioner of the Emergencies Act inquiry, Justice Paul Rouleau has one job — to get to the truth behind the federal government's unprecedented use of emergency powers that were used to clear anti-vaccine mandate protesters from the capital. Just days into the public hearing, lines have been clearly drawn between those who believe the government was justified in invoking the Emergencies Act, and those who think it was an unnecessary overreach. Today on Front Burner, host of CBC's Power & Politics Vassy Kapelos is here to get us caught up on what's been revealed so far and to explain what we can expect to come from all of this testimony.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. Uncovering the truth is an important goal. When difficult events occur that impact lives of Canadians, the public has a right to know what has happened.

That's Justice Paul Rouleau during his opening remarks as commissioner at the Emergencies Act inquiry. It's been eight months since convoy protesters took over downtown Ottawa and obstructed trade at U.S. border crossings. And now Justice Rouleau has one job, to get to the truth behind the federal government's unprecedented use of emergency powers. Powers they said were necessary to clear anti-vaccine mandate and anti-government protesters from the capital. The federal government has invoked the Emergencies Act to supplement provincial and territorial capacity to address the blockades and occupations. People want to have their voices heard. We've heard them. They're occupying our city.

People are scared to go to work. They're scared to leave their homes. Sadly, I think the only way to get them to go is going to be forced. At 9.21 in the morning, the eviction began. Police leadership gave the signal with the swing of that baton. Then officers swarmed in. You disgusting!

Shame on you! It just makes me really sad to see all these people waving Canadian flags, acting like patriots, when really it's kind of the most sad and embarrassing thing I've ever seen. We're here to make everyone safe, to make sure that people that are here protesting, our voices are heard. That's what we want. Justin Trudeau doesn't want to hear nothing. They are Canadians who want to be heard and they should be heard. And so we cannot support the Emergencies Act.

They have attempted to amplify and take advantage of every pain, every fear, Take advantage of every pain, every fear, every tragedy that has struck throughout this pandemic in order to divide one person against another and replace the people's freedom with the government's power. We're just days into the public hearings and lines have been clearly drawn between those who believe the government was totally justified in invoking the Emergency Act and those who think it was an unnecessary overreach. Today, host of CBC's Power in Politics, Vashi Kapelos, is here to get us caught up in what's been revealed so far and to explain what we can expect to come. Vashi, hello, hello.

Hi, Jamie. Thank you very much for coming on. Okay, so today we are going to talk about the Emergencies Act inquiry. This is a major public hearing with over 60 witnesses set to speak over the next six weeks. And let's start here. What question is the inquiry specifically looking into here? It's a perfect place to start because this is essentially how and where the inquiry will end. Justice Rouleau, who's leading the inquiry,

spelled it out very clearly. I think they are certainly going to look at the way in which all levels of government, all institutions, all law enforcement, how they conducted themselves and how they dealt with what happened. But ultimately, what he is there to determine is whether or not the federal government's use or invocation of the Emergencies Act was quote-unquote appropriate. While this inquiry will deal with a wide range of issues, its focus will remain squarely on the decision of the federal government. Why did it declare an emergency? How did it use its powers? And were those actions appropriate? So should they have invoked it, basically, is the question that is looking to be answered. And that's what the next six weeks is about.

And remind us here, why invoking the Emergencies Act was such a big deal, such a big deal that we need this big public inquiry to look into it. So there's two reasons from my perspective. And the first reason is why I continually on my programs keep saying the never before used, the use of the never before used Emergencies Act. The Emergencies Act replaced the War Measures Act back in 1988. And this is the first time it has ever been invoked by the federal government. It has a serious, serious threshold for declaring a national emergency, wherein you feel that the security or the health or the livelihood of the country or even the territory of the country which you govern is at stake and that

other levels of government are not equipped to deal with it. So the threshold for use is high. It has never been used before. And so that is the primary reason why it's good we are examining that unprecedented use of it. The second reason is because what it does is grant these extraordinary powers. Extraordinary is kind of almost maybe a nice word, a nice way of putting it. But what it means is that the government can do things it normally can't. It can freeze bank accounts. Canada's National Police Service sending to banks the names of people involved in protests that have paralyzed Ottawa. This is the first concrete step in the financial crackdown on demonstrators. The federal government

is saying banks have already started to freeze the accounts of people involved in the protests, and they are warning there will be dire financial consequences to come. If you are involved in this protest, we will actively look to identify you and follow up with financial sanctions and criminal charges. Absolutely. It can, you know, not let kids go to the protests. It can ban people from traveling at all to protest zones. Those who have gathered at the parliamentary precinct are now, by law, participating in an unlawful assembly and face increased fines, imprisonment or other sanctions. It can direct tow trucks to do things. That's just like kind of a small laundry list. But what it, the basic tenet here that we're examining through this inquiry is, you know, the government gave itself new powers. Was it justified in doing so? Yes, they were temporary, certainly. Yes, they were extraordinary. But did their justification meet the moment? Is it okay that they did so. And so it's a significant inquiry because if this thing is ever used in

the future, if it's amended in the future, if there's ever a situation in which our national security is deemed to be threatened by the federal government and it affords itself extra powers again, this is going to be the basis of how and when and why they do that in the future. And who decides whether it was ultimately justified, right? Is it the court justice, Paul Rouleau, who is presiding over this as the commissioner? Essentially, yes. But I think it's also important to kind of couch that by saying it's not like if he says, no, it wasn't, then the government disbands and they're punished. They all go to jail. Everyone goes to jail.

Yeah, no, that's not really what's going to happen. Basically, what this is about is providing recommendations and making determinations for the future use of the act or even if the act itself has to be changed in any way. The inquiry is triggered through the act itself, right? So this had to happen just by invoking the act. And that shows you kind of how serious it is. Ultimately, the justice rule will determine whether or not its use is appropriate. He'll say something to that effect, but that will result in a bunch of recommendations. It won't result in kind of like that's the final word. It's all over. Let's tie this thing up with a bow and move on. It's mostly about governing the use of this in the declaration of national emergencies and that kind of thing and extraordinary powers in the future.

Just briefly, let's go over some of the arguments kind of for and against that we're hearing here. Obviously, the federal government is at this inquiry and they are saying that they're cool, that they were completely justified in invoking it. And what's like what's the basis for their argument, basically? Well, the basis of their argument is one that they've been making essentially since the moment that they invoked it, and most specifically since the moment that the blockade ended. And their argument is, look, before we did that, this thing was not going to end, and it had not ended. The goal of all measures, including financial measures in the Emergencies Act, All measures, including financial measures in the Emergencies Act, is to deal with the current threat only and to get the situation fully under control. And that we were provided intelligence and information that made us determine that the only way this could effectively come to an end is if we invoke this act.

could effectively come to an end is if we invoke this act, if we gave police these extra powers in order to remove people from Ottawa's downtown core. That is the central tenet of their argument. The blockades and occupations are illegal. They're a threat to our economy and relationship with trading partners. They're a threat to supply chains and the availability of essential goods like food and medicine. They're a threat to public safety. And now do the other side for me. So I know that there's lots of different players who are arguing that it was unneeded, like including civil liberties groups, but also the lawyers representing convoy protesters, right?

And so why are they saying that this was like completely not needed? The primary reason that people who are opposed to, and though they do, you're absolutely right, come from different factions, the primary like argument being put forth by those who oppose the invocation of the act was that actually that national security, that national emergency rather, didn't exist. That what did exist could have been dealt with using laws that already were out there, that already were in existence. And so this was you know some the accusation is this is a power grab this is an overreach by government because if the OPP did its job or if the Ottawa police did its job or you know any of the basic level other levels of government had enforced what they could then things could have been dealt with the convoy

side of the argument goes a little further in that they don't see what they were doing as the sort of national security threat that the other levels of government, including the federal government, basically declared it to be, right? So they don't think they were doing anything that rose to the level of declaring a national emergency. It is our view that there was no justification whatsoever to invoke the Emergencies Act. The government exceeded their jurisdiction, both constitutionally and legislatively, in doing so. Obviously, the federal government feels otherwise, the province felt otherwise, the city felt otherwise. But that's the sort of extra part of the argument that they're putting forward. Otherwise, those who oppose the invocation basically say laws existed to deal with this issue. They just weren't utilized. That doesn't in and of itself justify affording yourself extra powers. And what have we seen so far that goes directly to that question, right, of whether they were justified in invoking the act.

So a couple of things, and this is sort of the way in which the inquiry itself or the commission itself has laid out how things are going to proceed. We began late last week with people and businesses and people who represent those businesses who were directly impacted by what happened in Ottawa. So Zexi Lee, for example, someone who started a lawsuit about all of this, business associations, 80% of the businesses in downtown Ottawa had to close during this. And this is, of course, if you'll remember back to February and late January, just when another lockdown had lifted. And so, everybody was kind of laying that out. What was it like to be a person who lives in downtown Ottawa, who was subjected to the so-called protest convoy, whatever you want to call it?

What was it like to listen to those horns? What was it like to be accosted by certain protesters as you left your home? All of that was laid out in great detail over the first few days. And there was cross-examination opportunities as well but essentially what that section of this inquiry laid out was that there was this isn't just a political issue right there was a real human impact to what occurred that underpinned some of the decisions various governments made right if people feel like they're being held hostage in downtown Ottawa certainly that will inform the way in which a government or law enforcement body deals with what's occurring. Second, we're in the middle now of hearing from various city officials.

So we've heard from people who run it on the administrative side, and now it's the outgoing mayor of Ottawa, Jim Watson. And there's a lot of, you could say, scrutiny over the decisions they made, too. And a lot of really interesting comments around like them not feeling like it was, you know, it was going to turn into this three week long thing. You know, when you look at, look back in hindsight on what happened, there were many failure points along the way. And, you know, whether it's the city or the provincial or the federal governments,

we all have to take responsibility for the fact that we did not act fast enough. And a lot of criticism of almost, you know, an accusation of naivete on the part of those city officials as well as civic politicians. And so there's a lot of discussion about the way in which the city handled things and then also, you know, where was the province in all of this? And a lot of focus on that as well. So that's where things are right now. That will obviously progress because there's upwards of 60 plus witnesses that we're going to hear from. And they actually said during the inquiry that they don't think it was necessary, right? Saskatchewan and Alberta also claimed that they were blindsided. So we're already seeing pretty big pushback as well, right? Yeah, there are genuine cleavages. And I think that part of what the government has said in order to justify its invocation

is that law enforcement advised them to do so. And what we've heard through testimony even prior to this inquiry before Parliament and before a committee that's studying this is that it was never really explicitly asked for. And that came out through a lot of interrogation of the RCMP commissioner, for example. As a law enforcement agency with primacy for national security, did you ask the government or representatives for the invocation of the Emergencies Act? ask the government or representatives for the invocation of the Emergencies Act? No, there was never a question of requesting the Emergency Act. Even the interim chief of the Ottawa

Police. So we were involved in conversations with our partners and with the political ministries. We didn't make a direct request for the Emergencies Act. And this is where things sort of get nuanced because the OPP says, no, it wasn't needed. We could have done stuff with the laws that existed, the powers that we had. However, you've got the RCMP and especially the Ottawa police, that interim chief, Steve Bell, who have said after the fact, look, we may not have explicitly said we need this this act invoked, but we did need extra powers. And we wouldn't have been able to clear this or to stop this from happening if we didn't have those extra powers. So I think you'll remember, and probably people listening will remember,

Minister Mendocino, Marco Mendocino, who's the public safety minister, got in a lot of heat because of the wording that he used. So that will also, when he's up for questioning and the prime minister up for questioning, that will be a big part, I think, of what they are cross examined over. But basically, you do have a little bit of a split where law enforcement is concerned. And we should also be hearing from all of them, too. We will also be hearing from all of them. So more details, more meat on the bone there will probably flush things out, too. And what about the argument that perhaps there were other special powers that they could have been given that wasn't the use of this extraordinary act, right? So

I saw that there was also some insight from communication between the city of Ottawa and the feds that basically pointed to the fact that councillors said the city of Ottawa was going to vote for the use of the National Defense Act, right? Which I guess could be an alternative to invoking the Emergencies Act, but they never got to the vote because they invoked the Emergencies Act. It's interesting because that's not a question that's being asked a whole lot. Like, what else could the feds have done? It seems like, and we're getting some interesting, like, sort of behind the scenes already of, like, the calls that took place between, and the texts, as as you point to between various levels of government but I think that the prime minister and his ministers will get a lot of questions about that like were there other remedies available

to you and so it will be interesting to hear what their justification is for going straight to the emergencies act so far what we've heard is basically if they wanted to get a hold of the source of the funds that were keeping momentum going in this thing, and if they wanted to at the same time give police extra powers that would allow or even tow trucks extra, you know, be able to direct them, then this was the most appropriate act or most appropriate piece of legislation. appropriate act or most appropriate piece of legislation. Yeah, I got to say, I am really interested in what comes out of this inquiry around how they use the act to freeze funds and what they did with those funds, because I feel like we haven't heard very much about that at all. Probably one of the most contentious, maybe the most, I could say, contentious part of the

invocation of the Emergencies Act was the federal government's ability to do this, to basically seize people's money. Like that raised a lot of alarm bells for people who maybe even weren't supportive of the convoy. So hearing them justify that and talk in more detail. I mean, they have released certain facts and figures about how much money was seized and how many bank accounts were affected. But I do think like the answers to those questions are going to be informative too. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem.

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People are calling it like a complete lack of competence to deal with this. And just, you mentioned the mayor. Just talk to me a little bit more about what we've learned so far on that. You talked about the province too. Yeah, well, the big revelation where the city is concerned and where Ottawa police are concerned is that hotels, the hotel association, if you can believe it, was like, hey, guys, heads up. People are booking rooms. These people associated with this project are booking rooms for a month. We don't think this is going to be just a few days. So we have Steve Ball.

And do you know who Steve Ball is? Yes, I do. And who is he? He's the president of the Ottawa Hotel Years Association, I believe. Okay. And this is dated January 25th. So this is before the arrival of the convoy in Ottawa. And he says, see note below, I spoke to this guy and he gave me more info about the

plan to shut down access to the city. And then he sends a message there, which says, in part, the current count of transportation individuals are estimated at 10,000 to 15,000 members who will be attending for a duration of 30 to 90 days. And so that was like a big headline from early this week out of this all because what it did was provide some evidentiary basis for what I think a lot of people had, a conclusion people had already drawn, which is like the city dropped the ball. Like the police dropped the ball in the beginning, especially when there was, we knew this intelligence existed that this protest was going to happen. And everybody's like, oh, oh you know what we just didn't think it would be this protracted yeah they're like oh it's just gonna last a few days yeah because everyone's like why didn't they shut

down the area around parliament why didn't they block the trucks from coming in the first place right and their argument has been we didn't think it was going to be this pronounced or protracted and what we discovered through this inquiry already, just a few days in, I should say, is that the hotels knew otherwise, and the Hotel Association communicated that to the city. So there's ball drop number one, and a whole other line of accountability. And then where the province is concerned, that's the meat of what's being discussed right now. And what's very interesting is, and I should know that the Premier said yesterday or this week rather, that he has not been asked to appear before this inquiry. And there had been a lot of questions about like, why not? Because this, after all, did happen in the province of Ontario. There was eventually a declaration of emergency. of emergency. But much of what we're seeing through the testimony so far is this like, desire to be very hands off, like, where's the premier here? Well, he's staying out of it,

I want him to come to the table. And then there's this like, crazy readout between Jim Watts and the outgoing mayor of Ottawa and the prime minister, in which they're kind of like discussing how they're going to present information to the public and what they're going to say. And you can tell they're cooperating, they're aligning very closely. And then they're kind of like, well, you know, I want for Jim Watson's like, I want for it to be at the table. And the prime minister is talking, saying basically that the premier Ford is like abdicating his responsibility, hiding from his responsibility by by not doing more. So I I do expect there to be some political kind of fallout from all this, because also this week, Premier Ford came out and was like, I'm shoulder to shoulder with the prime minister. And they're like, they're like talking to each other behind closed doors.

Yeah, which like, honestly, let's be real, they're not natural political allies, but they certainly have become public facing ones throughout much of, you know, much of the last number of months and also on a host of different issues. And it's true, the Premier never really came out and was like, don't do anything here. Don't invoke the Act. He was supportive of the federal government. Now he's explicitly so. Myself and I know the Prime Minister believe in free speech.

And if you want to protest, protest. If you want to come down to Queen's Park and do cartwheels. But if you disrupt the lives of the people of Ottawa every single day, disrupt the lives of economic flow across our borders, I have zero tolerance for it. But what's clear through all of this is that the premier and the province did not play a central role. There's even like, you know, Sylvia Jones, the attorney general at the time was saying there's all these OPP officers and the city's like, no, there isn't. And so there was even like a kind of like bad information being put out there on behalf of the province. So I'm very curious to see the witness list is not like a closed one.

calling some ministers or the premier himself actually becomes clear or if that ends up happening because the provincial role in all of this is one that I think is like generating a lot of questions at this point yeah uh I agree also something that I would like to love to learn more about um you know just just to add to that like you can already see even more squabbling at lower levels with some of the evidence that's been released in the inquiry so far. Like I was quite interested in these text exchanges between the chief of staff for the mayor of the city of Ottawa and the chief of staff for public safety minister Marco Mendocino. You know, one of them saying that the RCMP are flat out lying. They're not sending the officers. And I think the argument was that they were sent to protect federal buildings, not to actually help the city of Ottawa. And also, like, they're kind of squabbling back and forth about whether or not they should talk to the protesters, or it's a good idea to talk to

the protesters about moving trucks and the the city of Ottawa guys like you know how can we do that you are publicly saying that you're not going to talk to them and you're putting your ministers out there saying that they can't be negotiated with and like it would be ludicrous for us to then go negotiate with them it just it just kind of paints a picture to me of of lot of chaos. And Paul Champ, the lawyer representing the class action, Lexi Z, who you talked about earlier, he talked about how there's a lot more coming that will show arguments and dysfunction. And he says it's going this is quite a story about dysfunction between key players, that this could really leave people with like a very negative view of democratic institutions. And I don't know. What do you think about that?

First of all, I think I remember watching this unfold. I came back from my mad leave like the day it ended. And I live in Ottawa, I was out and about, and I was obviously watching TV like everybody else. And I think that chaotic impression that we all had outwardly, what we have discovered through just a few days of testimony here and a few document dumps, is that exactly what you spelled out, that it very much was exactly that way behind the scenes too? Like nobody really had a handle on what was occurring and how to stop it. Is it unnerving? For sure. However, I kind of take the opposite view around the integrity of

our institutions because I am a firm believer that sunlight is the best disinfectant. The fact that this inquiry is happening, the fact that it has access to the degree of documents and information and intelligence that it does, for me, actually underpins the integrity of our institutions. Could a million things have been done better? That's pretty evident already. they have been yes should there be accountability for a lack of good decision making a lack of coherence a lack of cooperation yes there should be but the reason that we know all about that is because this inquiry is taking place because the committee in parliament is investigating this i think that's like a function of democratic institutions and our democracy too.

And so I think like ultimately it will serve, fingers crossed, to strengthen them in the future. I'm hopeful that that's where this inquiry goes. I really appreciate that you have like a far less cynical view of that last question than I do. So thank you for that. Vash, we are probably going to talk to you about this again soon.

We got a lot of people coming up in this inquiry. Trudeau, Freeland, former police chief Peter Slowly. So we'll talk to you soon. Thank you for this. Thanks, Jamie. All right, that is all for today. I'm Jamie Poisson. Thanks so much for listening.

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