Was the Freedom Convoy a threat to Canada's national security?

As noted earlier this morning, Mr Justice Paul Rouleau, presiding over the eponymous commission, must decide whether the Freedom Convoy constituted a threat to the security of Canada. He has to review his notes and transcripts of six weeks of oral testimony, plus over 7000 pages of documents (many of them heavily redacted), and the written submissions of counsel for a dozen or so (I lost count!) parties with standing, and the Commission itself.

The Commission was supposed to lift the veil of secrecy shrouding the events of February and the Liberals' decision to invoke the Emergencies Act, but much remains hidden. 

In refusing to release minutes of Cabinet meetings, counsel for the government of Canada relied on the principle of cabinet confidentiality. Questions about what was said in those meetings, or by one minister to another were objected to and disallowed.

Moreover, the documents produced by the government were so heavily redacted as to leave only the titles visible in many instances. Counsel for the Freedom Convoy organizers and other parties made several motions to have sight of uncensored versions of the documents, but almost all such motions were denied.

The other means by which the government kept secret key elements of its decision-making process was solicitor-client privilege. The Honourable David Lametti, Minister of Justice [!] said that he had considered a legal opinion on the matter. What was the opinion? He couldn't say -- solicitor-client privilege. Was the opinion shown to Cabinet? Same answer. Would he let the Commission see the opinion? What do you think?!

Agent 3, our non-resident legal beagle thinks that Mr Justic Rouleau is entitled to draw inferences from the government's refusal to waive solicitor-client privilege, and/or* release unredacted versions of the 1000s of documents which were censored. If the government has nothing to hide, if the legal opinion and other papers raised no doubts about the legality of invoking the Emergencies Act, why not show let Canadians see these things?

Is Commissioner Rouleau bothered by the government's stonewalling? Maybe not. In his closing statement Friday evening, he said he is satisfied that he can now make factual findings and answer the key questions the commission was mandated to explore: Why did the federal government declare the emergency? How did it use its powers? And were those actions appropriate? "These are questions that, as I said at the outset, the public wants answered," said the judge. "I'm confident that I am now well positioned to provide those answers."

In his deliberations, Mr Justice Rouleau will have to consider the argument made repeatedly by counsel for the Freedom Convoy organizers, the Canadian Civil Liberties Association, and others that the protest did not constitute a threat to the security of Canada, as defined by the Emergencies Act, which incorporates by reference the definition of a threat contained in the Canadian Security Intelligence Service Act. 

Section 2 of the latter act says: "threats to the security of Canada" means

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and

(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada, but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). [Walt's emphasis.]

M Trudeau's minions kept referring to Jan. 6th, and to the sighting of one (only) "Nazi" flag and one (only) Confederate flag (both likely carried by agents provocateurs), as evidence that "IMVEs" (Ideologically Motivated Violent Extremists) were behind the protests. 

That gruel being shown to be pretty thin, they then switched to the argument that the protests were detrimental to Canada's economic security, i.e. bad for business. Ms Freeland said she'd had calls from Michigan Governor Karen Whitmer (D) and Mr Socks said he'd been on the phone with President Brandon. The Americans, they said, might not invest so much in Canada, in future, if it became "unstable". Judge Rouleau said he didn't see anything in the CSIS definition about economic insecurity.

In closing statements on Friday evening, a lawyer for the federal government said it's clear after six weeks of testimony that there were serious threats of violence by demonstrators, that blockades posed threats to the economic security of Canada, and that there were reasonable grounds to declare a national emergency. 

But are "reasonable grounds" sufficient? What about legal grounds?! Lawyers for the provinces of Alberta and Saskatchewan said provincial governments were not consulted enough on the special powers. 

A lawyer for the Canadian Civil Liberties Association, argued that the use of the act was inappropriate, and that a "creative and privileged legal opinion" from the government isn't enough to conclude that the legal threshold was met. She said the act was ultimately a way for the government to be seen to be doing something about the protests, which had gridlocked downtown Ottawa for weeks and halted trade at several Canada-US border crossings. 

"Instead of establishing clear and appropriate lines of communication, having frank discussions and putting instructions about strategic priorities to police in writing, the government gave law enforcement the biggest and most public nudge it could," she said, "it invoked the Emergencies Act and handed law enforcement across the country sweeping and unnecessary new tools and a clear political mandate to use them."

Counsel for Freedom Corp., representing some of the protest organizers, said the Emergencies Act constituted state violence. "The sad irony is that the protest in Ottawa was fundamentally about government overreach. Canadians felt that the current government had gone too far with the COVID-19 mandates. The government's response to the protest by invoking the Emergencies Act was a further reach of power over people instead of power by the people." 

Let us say, using the current buzzword, that there's a lot to unpack there, and Mr Justice Rouleau is going to have his work cut out for him. His report is due in February 2023. That's a pretty short time in which to mix up so many gallons of whitewash!

* Footnote from Ed., regarding "and/or". Lawyers love "and/ors". You see them all the time in contracts, statutes and other legal documents. They are expensive, though... because they are imported from Andorra.

COMMENT, from Carson Jerema, National Post, 28/11/22. Trudeau’s use of the Emergencies Act was a profound attack on the rule of law, and any finding from the Public Order Emergencies Commission that it was legal would be an unfortunate precedent. Despite that, polls have shown that Canadians supported the move in high numbers, much higher than support for the Liberals generally.

Comment from Walt: Are Canucks really that careless of their freedom? Hard to believe.