Front Burner - Trudeau takes the stand in Emergencies Act inquiry

Episode Date: November 28, 2022

Friday marked the end of the public hearing portion of the Emergencies Act commission. It was a blockbuster week of testimony, featuring the highest echelon of decision-makers in the country including the most senior cabinet members, Canada's top spy and the prime minister himself. David Cochrane is a senior reporter with CBC's parliamentary bureau in Ottawa. He's been closely watching the commission. Today on Front Burner he explains what major revelations have come to light over the last few weeks.

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. Most importantly, I'm satisfied that I now have the evidence that I need to make the factual findings and to answer the questions I've been mandated to ask. Justice Paul Rouleau has heard enough. Friday marked the end of the public hearing portion of the Emergencies Act Commission.

And it was a blockbuster week of testimony, a rare opportunity to grow the highest echelon of decision makers in the country, including the most senior cabinet members, Canada's top spy, and the prime minister himself. Mr. Prime Minister, will you swear on a religious document or do you wish to affirm? I would like to swear on the Bible, please. After six weeks of testimony from over 70 witnesses, we now know a lot of what Justice Rouleau will be taking into account when deciding whether the federal government was justified in invoking the never-before-used Emergencies Act last winter to put an end to the anti-vaccine mandate protests.

David Cochran is a senior reporter at the CBC's Parliamentary Bureau in Ottawa. He's been closely watching the commission, and he's here with me now to explain what major revelations have come to light over the last few weeks. David, hey, it's great to have you. Thank you so much for being here. So look, we're marking the end of the public testimony at the inquiry into the use of the Emergencies Act. And maybe let's start with the last and arguably, arguably most significant witness to testify, the prime minister. Invoking the Emergencies Act was ultimately his decision. And what was he like at the hearing? It's not really an environment we usually see him in, hey? No, and it wasn't the prime minister we're used to seeing, right? In a

lot of the media interviews and news conferences or in question period where you see Justin Trudeau, he's far more performative, maybe is the word I would use, and a lot of talking points, a lot of value statements. He looks like a politician most of the time. He looked a lot like an actual prime minister, and I don't mean that pejoratively. a lot like an actual prime minister. And I don't mean that pejoratively. When he testified, he had a remarkable command of the events, a good understanding of the law, even correcting and pushing back some of the lawyers who were questioning and cross-examining him during the testimony. And he gave very clear and expansive answers that gave us rare insight into his thinking in that time and since as to why he pulled the trigger

on using the Emergencies Act. The responsibility of a prime minister is to make the tough calls and keep people safe. And this was a moment where the collective advice of cabinet, of the public service, and my own inclination was that this was a moment to do something that we needed to do to keep Canadians safe. It was a glimpse into a Justin Trudeau that the people who work with him and brief him say that that's the way he is in meetings, but it was a glimpse of a Justin Trudeau the public rarely sees. Yeah. And on your point, I saw lots of people commenting that they would love to see more of the Justin Trudeau we got on Friday in question period, for example. I'd like to see a lot more politicians answering questions under oath. That would be a good thing

for us. Yeah. We got to see a lot of them this time around. I want to talk about that a little bit more with you later, which was pretty, pretty cool overall, I think, to see. But first, I want to go through some of the main arguments that Trudeau made in defending his decision. And maybe we could start with one being basically he didn't have another option, right? And so what did he say about a police plan or a lack of a police plan to clear the protests and how that contributed to his decision? The Ottawa Police Service and the RCMP, certainly the commissioner, had rough inquiries. And the big sort of focus point comes down to that day on February the 13th, the day before the prime minister decided he would ultimately invoke the Emergencies Act. And Brenda Luckey testified, though her testimony throughout

was quite qualified and her memory was not as good as the prime minister's was when he finally testified. But she claims that on the 13th of February, the police had a plan ready to go to clear the situation in downtown Ottawa that did not require the extraordinary powers that were provided under the Emergencies Act. She also testified she never told anybody about this. Like she says she told Marco Minichino's chief of staff. But in a meeting of the incident response group, which is a special security and emergency subcommittee of cabinet, she never spoke up. And then later that day in a cabinet meeting that evening, she never raised it again. And so this is, yeah, this is Brenda Luckey, head of the RCMP.

So she says she had a plan and nobody saw her plan? She says she had a plan. People may have seen the plan. She never told the whole cabinet that there was a plan that was this robust. So on the 14th, when the prime minister is ultimately invoking the decision, his version of events is that he was never told by the head of the Royal Canadian Mounted Police that there was an action plan ready to go. And in fact, when he was presented with that idea that there was a plan, he really kind of sarcastically dismissed it. From the approach of the very first weekend, we heard from various

authorities and police of jurisdiction, don't worry, we got this. There's a plan. There's a plan. And for the second weekend, there was a plan. We have a plan for this and it's not going to happen. And we've got this. We're getting more resources. No, there's a plan. And I tell you, living in Ottawa, that's true. There were constant reassurances that things were going to get better and then things never did. If anything, the crowd in the downtown core simply expanded, became more entrenched, and became more aggressive.

And you have to remember the timeline, too. February the 13th, Brenda Luckey insists there's a plan, though she does not brief cabinet on it. February 14th, Justin Trudeau invokes the Emergencies Act. On the 15th, former Ottawa police chief Peter Slowly resigns, and it was only on the 15th that the OPS, the OPP, and the RCMP settled their joint command structure, and it was only on the 17th, the day before they moved in on the occupiers in the downtown, that the various levels of police in Ottawa officially greenlit and signed off on their tactical plan. So a lot happened from the time the police moved from the day Brenda Luckey insists there was a plan that really makes you question, did they really have a plan and how ready was it to go? But there was this, I guess, physical plan that was submitted as evidence. It's like on it's on its website, but it's but it's almost entirely redacted. So so we would have no idea whether it was a good plan. But had the prime minister seen that plan?

Is that the plan that everybody's talking about? So the prime minister says he's never actually seen the plan because he is the prime minister. So someone would have seen it and briefed him on it. And he claims that he was briefed that that plan was incomplete. And there was this moment of bravado on the stand where he invited everybody to read the plan that apparently existed on the 13th. But then when they brought it up, it's a wall of black, right? It is heavily redacted. I would recommend people take a look at that actual plan, which wasn't a plan at all. It was a talk about using liaison officers to try and shrink the perimeter a little bit.

But as you look at the annex for how the troops are deployed, how the police officers are deployed, what resources are going to be need, every annex is to be determined later, to be determined later. It was not even in the most generous of characterizations, a plan for how they were going to end the occupation in Ottawa. The argument coming from government lawyers, because these redactions are not done by the prime minister, they're not done by his staff, all the documents are turned over to the Justice Department, and civil servants in that department do these redactions. And the argument has been that the police plan was redacted to protect operational integrity for police operations. They don't want their tactics. They don't want the details of how they operate published for

everybody to see because it makes law enforcement that much harder. So we don't know precisely what's in it. But the thing is, throughout this, Jamie, is that we saw a lot of testimony from police officers. What they said on the stand was contradicted by written documents and contemporaneous emails and notes going back to the days of what was happening in downtown Ottawa and other places. Tom Carrick, who's the head of the OPP, swore up and down that they never used

the powers of the Emergencies Act, and entered into evidence was a letter signed by Tom Carrick ordering tow trucks to provide services under the powers of the Emergencies Act. So what people said in the moment on the stand and what they did in the chaos of January and February sometimes didn't quite align. The prime minister is saying there was not a sufficient plan and he and cabinet were not briefed of a sufficient plan. And what other arguments was he making on the stand on Friday to argue that the situation, the protest met this threshold of, quote, a public order emergency? Well, just to build off the discussion around the police plan, the Ottawa occupation was perhaps the brightest star in a constellation of problems that the government was trying to solve. It's certainly where we were, was the media focus of the entire thing. But economically, things like

the Ambassador Bridge, the disruption on the borders, these were much bigger issues. And if you look at all of those things in their totality, that is essentially the government's argument. Now, the Ambassador Bridge was cleared before the Emergencies Act was invoked. The Coots Blockade was cleared the day the Emergencies Act was invoked, but without the Emergencies Act powers. It was really Ottawa that got cleared up after the fact. But the argument the government keeps making is that you have to stop looking at this with hindsight bias and go back to the chaos of the moment. You know, sitting here today, we kind of are judging a period of time that's frozen. Whereas as we were making the decisions, we were making the decisions in real time as things were

evolving. It's a real difference in perspective. There were all these things that positioned or presented real threats of serious violence. And every input we were getting on that weekend at the IRG was that things were not getting better, things were getting worse. Coots was cleared, but how long would it stay cleared? Would they be back? What about the Ambassador Bridge? There were, we were told, attempts after it was cleared for the protesters to go back and re-block it again. So the argument they are making is that when you take all of it together, it required an extreme solution like the Emergencies Act, not only to clear it all up, but to stop it from coming back and re-establishing itself.

And what did the emergency act give them that allowed them to kind of stop this whack-a-mole situation, I guess, in theory? Well, I'll use the example of Ottawa because there were three specific powers, four maybe, that you could look at that allowed them to finally clear the streets here in the capital city. One is that they gave the police the power to rapidly create exclusion zones,

ban people from coming into the downtown, and ban them from bringing children. One of the issues in some of the other protests was the presence of children being used, as the prime minister described, that children as human shields deliberately. It's going to stop them from getting in. Now, you can create exclusion zones under existing law, but the test is higher and you can't do it as rapidly. So that was helpful. The second was that they Jamie, that tow truck operators were too afraid to do the job they formed the company for, to tow trucks, because they were afraid of the retaliation they would get, not just in the moment, but maybe afterwards. and protections to make sure that someone else would be liable for the consequences if, say, there was a retaliation against their business or if they lost business in the future. So while tow truck operators, the OPP claims they had tow truck operators ready to go before

they moved in on Ottawa, there's contradictory evidence that says all the tow truck operators are going to pull out. And it was only truly the power of the Emergencies Act, the ability to compel them, indemnify them, and compensate them that made that possible. There was also the financial measures. The protests were in very specific locations, but the money was coming from everywhere. Never mind the American money and the GoFundMe and the GiveSendGo crowdfunding campaigns. There was money moving into bank accounts in a way that we really don't quite

know the full amount or how to control it. And police can't stop money from moving around between bank accounts. And the way Chrystia Freeland described it, the ability to freeze the bank accounts of people in the protest zones. As like a virtual tow truck. And there was news reporting at the time that suggests that some people moved their trucks because they saw the insurance measure was there. We were very public about it being there and that that created an incentive to leave. When they were told they could lose their commercial license, lose their insurance, and they couldn't take money out of the bank, and in some cases their family members at home were like, why can't we get our money?

That became a powerful compulsion for everybody to leave. And you did see some people go because of that. Now, all you had to do was leave and your account could be unfrozen. But that was a significant incentive because money allowed them to stay. And the final point was it allowed for the rapid and immediate deputizing of police from across the country. You remember the images when they moved in on the 18th. It wasn't just Ottawa police, OPP, and RCMP. There were police from Calgary, from Quebec, from Vancouver, from all over the place. To bring these police in to do actual law enforcement in Ontario would take a

cumbersome and long process of swearing them in. This allowed them to move rapidly. So going back to that point where the police say they had a plan on the 13th, maybe, but would they have been able to execute it on the days that they did or would it have taken another week or another two weeks as they struggled to get critical mass of officers in and have them deputized to the point that they could actually function as police inside the city of Ottawa? Yeah. And just to be clear, though, there are a lot of people

who are part of this inquiry and elsewhere who think that this all could have been done without the Emergencies Act. And it could have been done on a reasonable timeline. Every police witness, I think, that testified said pretty much the same thing. That the powers were helpful,

but they were not necessary. To which the response has always been, well, if you didn't need them, why did it take 22 days and the Emergencies Act before you did it? Because you have to remember, the police were telling bylaw officers and cops not to ticket, not to tow, not to even issue a parking ticket. They couldn't intercept, jerry-canc cancel the gasoline. 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.

Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo, 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. vision together. To listen to this podcast, just search for Money for Cups.

Going back to this legal threshold of whether or not the protest constituted a public order emergency, I want to talk about the testimony from the head of the Canadian Security Intelligence Service, so CSIS. Director David Vigneault testified. And what did he reveal to the commission? And how does that fit into this argument we were hearing about whether this threshold was met? Yeah, I think it's very clear that this threshold of what constituted a threat to national security under the CSIS Act was not met and would not have been met by the nature of what was happening in Ottawa and in other places because the definition under the CSIS Act is so narrow, and deliberately so, because it binds the actions of our national spy agency,

that the convoy protests were never going to meet that threshold. It was a separate understanding, you know, the confines of the CSIS Act, the same words based on legal interpretation, jurisprudence, federal court rulings, and so on. There was a very clear understanding of what those words meant in the confines of the CSIS Act. So if you believe, as a lot of people do, and a lot of lawyers, and the Canadian Civil Liberties Association has been laser focused on this point, it's avoided some of the conspiracy stuff that the convoy lawyer and stuff got into, it's very much a matter of law. And same with the Canada Constitution Foundation, that if the CSIS Act is the bar, Justin Trudeau fell short. And I think that's

very clear that that is the case. The counter argument is that that bar is only one standard, and that's a bar for CSIS to clear. It's not a bar for the government to clear in the Emergencies Act. There's a different, much broader set of criteria that they argue applies. This sounds like very much like legalese, but it's actually a really crucial argument that's come out of this commission. Yeah, so this is essentially the crux of the government's argument. The CSIS Act binds CSIS. The CSIS Act informs cabinet and its use of the Emergencies Act. But the CSIS definition is not a veto over the judgment of the prime minister and his cabinet when it comes to declaring a national emergency. And they make the argument, too, by some of their reading of the language baked into the Emergencies Act, that discretion does ultimately lie with the government executive on whether or not to declare a national emergency. And the test is not an absolute one like it is in the CSIS Act.

It's a legal test of reasonableness using the language of the Emergencies Act. Essentially, is it reasonable that we use these powers to deal with this problem? And do the measures we take under this act, are they proportional and time limited and targeted enough to deal with it? Right. That's their argument and their basis for that, Jamie. And here's the other problem for the government in this is that it's based on a legal interpretation. They have not disclosed and they will not share with anybody else. Done for them by the Department of Justice that they have consistently invoked solicitor client privilege on it.

So they say they have legal arguments that support their-client privilege on it. So they say they have legal arguments that support their case, but they're not giving it to us. They're not giving it to the other parties in the inquiry. And as far as I know, they're not giving it to Justice Rouleau either. Why not, David? I don't really understand that. It's kind of this just trust us vibe, right? There is that. I mean, David Lamedi, the Justice Minister and the Attorney General, was on the stand and he essentially kept arguing the principle of solicitor-client privilege is absolute and should not be waived under any circumstances for fear of eroding that absolute standard. Now, one of the documents produced by DOJ in the record, and I'm assuming

it was just produced to prove it was done, is the redacted legal opinion. It's just the document itself that was given to cabinet. It's fully redacted. But of course, you agree that cabinet received a legal opinion about the Emergencies Act. Is that fair? I will not confirm. I'm going to object to this question. It gets into areas of solicitor-client privilege. You know, declining, as was requested many times, to make an exception without prejudice for this legal opinion. And it's important to note, too, Jamie, that CSIS Director Vigneault, when he testified, he said he agreed with the government's argument that the CSIS Act wasn't a veto, that he agreed with their interpretation of how the Emergencies Act applied. What I was reassured by is that there was, you know, in the context of the Emergencies Act, there was to be a separate interpretation based on the confines of that act. And when asked if he thought the prime minister should invoke the Emergencies Act, the head of CISA said, yes, he agreed with it. Of course, he was basing that opinion off this legal opinion that he has seen, but we have not seen. And you mentioned just trust us vibes. There was that moment where Justice Rouleau said to David Lamedi that you're essentially looking at us and saying, you know, trust that we acted in good faith. And Lamedi pretty much said, that's it. What I don't know, and I'm not saying we necessarily need to know, is what was the belief of those who made the decision as to what the law was?

And I guess the answer is we just assumed they acted in good faith in application of whatever they were told. Is that sort of what you're saying? I think that's fair. Okay. You mentioned that Civil Liberties Association and others, I mean, they've been really critical of this lack of transparency, right? Yeah, they think this is absolute overreach and essentially almost like a constitutional easy button for the government that, you know, people have this sacrosanct right to protest and they believe in that. And they are never going to accept an argument from the government that this was justified no matter how time limited and how short lived it was because they believe police could have dealt with it. And because the Emergencies Act, it doesn't allow for an economic emergency anywhere in that law.

They don't buy the economic arguments, the threat of economic harm that Christopher Freeland and other cabinet ministers and senior government officials were laying out as a justification for what was done. David, before we go, as we've talked about, now Justice Rouleau will have to answer that question about whether or not this legal threshold was met. There's another phase that starts today and goes until December 2nd, right? And in this phase, experts are going to chime in on the second big question at play here, which is the modernization of the Emergencies Act and whether the definition of what constitutes an emergency needs to be updated. So what can we expect to see happen now as this thing continues to play out?

Yeah, this is where the forward-looking part of the inquiry begins rather than the backward-looking, right, in terms of what do we need to do to remove the lack of clarity or make the emergency tools better. And all of this has to be sorted out by February 14th, which is the one-year anniversary of the invocation of the Act. So the judge is going to have all of this has to be sorted out by February 14th, which is the one-year anniversary of the invocation of the act. So the judge is going to have a lot of writing to do over the holidays. David, thank you so much. This is really interesting. Thank you.

You're welcome. Thanks. All right, that's all for today. Before I say goodbye, I just wanted to take a moment to thank our very good friend, reporter Vashi Capellos, for years of really sharp and fun and funny political analysis on the pod. Vashi is moving on from CBC's Power in Politics for a new adventure with CTV. in politics for a new adventure with CTV. We're going to miss her a lot, but we're really happy for her and all the new challenges that are set to come. So thank you, Vashi, so much.

Also, big news on Sunday for soccer fans. Canada was eliminated from the 2022 World Cup after losing to Croatia 4-1. All right, I'm Jamie Poisson. Thanks so much for listening. Talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.