Emergencies Act Hearings: The PCO panics

Vincent J. Curtis

20 Nov 22

Believers in civil liberties would be chilled to the bone to have heard the testimony of senior Privy Council Office officials at the Emergencies Act hearings last week.  Protections in law against the malicious invocation of the EA and uses of extraordinary powers by the executive government don’t exist when the PCO deems them not to exist.

The legitimacy of the declaration of the Emergencies Act boils down to what a “Public Order Emergency” is.  Section 2 of the CSIS Act of 1985 defines what ‘a threat to the security of Canada’ is.  The four elements are: espionage or sabotage, foreign influenced activities detrimental to the interest of Canada, terrorism and terrorist violence, and violent overthrow of the constitutional order of Canada.

Section 16 of the Emergencies Act of 1985 says that a Public Order Emergency arises from a threat to the security of Canada, and that ‘a threat to the security of Canada’ “has the meaning assigned to it by the [CSIS] Act.”

Jody Thomas is the National Security and Intelligence Advisor to the Prime Minister and is a member of the PCO.  She coldly disagreed with the plain English reading of the text of Section 16 of the EA.  And she wouldn’t discuss it.  “You’re a lawyer and I am not,” said Thomas when asked under cross-examination by Freedom Corp. lawyer Brandon Miller to explain how she maintained that a plain English reading of the Section 16 text didn’t mean what it said.  And Thomas refused to answer further questions on it.  Thomas admitted that she had no formal training or prior experience in intelligence or security.

Thomas revealed she believed that the intelligence reports she received from CSIS, the RCMP, and the CSE were not sufficient for her to do her job completely, and so she started an intelligence gathering and assessment unit within her office.  She gathers open source intelligence on persons and organizations within Canada of interest to her, unfettered by the legal restrictions that bind CSIS and the RCMP.  When pressed on this matter by lawyer Miller, Thomas admitted that “Parliament hasn’t given us authority, but it exists and it continues.”  This is another point the legality of which Thomas refused to discuss.

If that wasn’t chilling enough, it got worse when Clerk of the Privy Council, Janice Charette, and Deputy Clerk Nathalie Drouin were questioned on Friday.  Drouin is an award-winning lawyer from Quebec who previously served as Deputy Attorney-General and Minister of Justice of Canada.  She was once the government of Canada’s senior-most lawyer and was responsible for overseeing the drafting of parliamentary bills.

These two testified together.  They also were challenged that the criterion of a Public Order Emergency was specifically tied to Section 2 of the CSIS Act, as a plain English reading appears to say, “a ‘threat to the security of Canada’ has the meaning assigned to it by the [CSIS] Act.”  Charette insisted that there were other things that constituted a threat to the security of Canada that lay beyond Section 2 of the CSIS Act, but not being a lawyer couldn’t explain herself and deferred to her Deputy.  Drouin claimed that the meaning of the meaning depended on “context.”  And that was that.  There was not enough time left to the lawyers to explore this contention.

To reach her position, Drouin had to violate the canons of parliamentary drafting and interpretation, obviously.  The CSIS Act and the EA were passed by the same set of legislators during the Mulroney government, and if a legislator reads that the meaning of a term of one bill has the same meaning assigned to it as a previous bill, then it is impossible to know that that wasn’t true, and that “context” mattered, whatever that meant.  This was the assertion that Canada’s former top lawyer made under oath.

The mad-hatter world of words meaning whatever we want them to mean whenever we want them to mean it came to be in Ottawa.

The problem the PCO had lay in the fact that the director of CSIS determined that a threat to the security of Canada was not posed by the Freedom Convoy protest in Ottawa, or in the sympathy blockades at the Ambassador Bridge; Emerson, Manitoba; Coutts, Alberta; and in British Columbia.  There was no violence, sabotage, espionage, threats of terrorism, foreign influence, or the violent overthrow of the constitutional order of Canada by the protests against government-imposed COVID mandates.

The head of CSIS issued a second threat assessment for the Cabinet meeting of February 13, which was to discuss threat posed by the invocation of the EA itself.  The PCO witnesses tried to fudge his two assessments.  The second CSIS assessment was that the invocation of the EA itself could inflame passions, and create the very conditions of violence the EA was allegedly to be invoked against.

It is obvious that the persistence of the protest in Ottawa, as well as the spontaneous eruption of sympathy blockades panicked the PCO.  The Freedom Convoy was supposed to disperse after the first weekend, having had their say and having had it ignored.  The non-lawyer Clerk determined that the protest in Ottawa became illegal after the first weekend, when the Convoy refused to disperse.  Parking by-laws in Ottawa were flagrantly being violated, for example.  “You can’t park on Wellington Street like that,” she said.  Not being a lawyer, it didn’t occur to her that municipal parking by-laws are superseded by the Charter of Rights, and specifically the right to protest.

Charette became annoyed that the provinces weren’t fully utilizing their police powers to disperse the protests.  Strangely, what has never been asked, is why was political negotiation never considered as an option?  All the courses of action proposed to the government by the PCO were variations on the use of force by government to disperse the protests.

Another fiction that needed to be maintained, and was maintained by the Clerk and her Deputy, was that the emergency could not be confined to one province.  If all the protests occurred in Ontario, then an essential criterion for the invocation of the EA wasn’t met.  The sympathy blockades in BC and Manitoba were gone by February 14, the date of invocation, and the blockade at Coutts voluntarily began dispersing on the morning of February 14 after firearms were discovered among some troublemakers, and the protest organizers decided that their message was now hopelessly compromised.  That left Ontario as the only province in which protests remained.

To evade the letter of the law, the Deputy Clerk argued that it was possible for protests in other provinces and at the Ambassador Bridge to return, and the possibility of their return was sufficient to meet the multi-province extent of the emergency required to invoke the EA.

Further evidence of panic within the PCO was given by their reliance on unverified news reports to bolster their claim that a Section 2 CSIS threat was not the only threat that could lead to the invocation of the EA.  “We had reports of violence,” “We heard reports that children were being used as human shields,” said Deputy Drouin.  “The Prime Minster received a death threat,” intoned Clerk Charette.  It was not explored who made the threat, how it was received, or how often the PM gets threats on a routine basis.  The diversion was meant to imply that the Freedom Convoy was somehow responsible for the death threat against Trudeau.

The basis for the invocation of the EA lies in tatters.  It was invoked unlawfully, but there is no penalty in law for doing so.  The EA was invoked because the Prime Minister did not want to parlay with the protesters, and the provinces were not using their full police powers to restore order, in the eyes of the PCO-PMO, for that would protect Trudeau from having to parlay.  Provincial authorities weren’t prepared to sacrifice their popularity to protect the leader of the Federal government from the consequences of his own excesses.

This week the political leadership testify before the Commission.

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Correction/Clarification 22-11-21-01:00: Deputy Drouin listed the main things that amounted to a threat to the security of Canada.  In her broken English, it is hard to make sense of what she said, but it boils down to panic in the PCO.  The threats of serious violence strayed into “we heard that some players, ING (perhaps some Ideologically Motivated Violent Extremist group), were present at some of the protests.”  “We heard of the presence of firearms.”  Then some reference to hearing of structural economic[inaudible] support our workers.”  “We heard impacts on our trade relationship.”  “CBSA [inaudible] disrupted ports of entry.”  Remember, these were supposed to be examples of violence.