Canadians have ‘right to know’ what happened when Liberals declared emergency: judge

The move temporarily granted police extraordinary powers and allowed banks to freeze accounts

By David Fraser in Ottawa

A lawyer representing “Freedom Convoy” organizers has told a public inquiry into the federal government’s use of the Emergencies Act there was no evidence the law was necessary to end the protests that took over streets around Parliament Hill last winter.

“There was no reasonable and probable grounds to invoke the Emergencies Act and the government exceeded their jurisdiction, both constitutionally and legislatively, in doing so,” said Brendan Miller.

Miller’s clients are among a list of groups with standing at the inquiry who presented opening remarks Thursday, as the Public Order Emergency Commission began six weeks of public hearings in downtown Ottawa.

The Liberal government invoked the act on Feb. 14, the first time it had been used since it replaced the War Measures Act in 1988. The move temporarily granted police extraordinary powers and allowed banks to freeze accounts.

The Liberals argued invoking the law was needed to end border blockades and the occupation of downtown Ottawa by protesters demonstrating against COVID-19 vaccine mandates, lockdowns and the government.

The Canadian Civil Liberties Association argued at the time that the government had not met the threshold for declaring an emergency.

The judge leading the public inquiry warned of tight timelines as he urged everyone to work together to enlighten Canadians.

“Uncovering the truth is an important goal,” Ontario Court of Appeal Justice Paul Rouleau said in his opening remarks.

“When difficult events occur that impact the lives of Canadians, the public has a right to know what happened.” 

Rouleau and his staff started the proceedings by explaining how the inquiry will work, including how documents and evidence will be presented, before witnesses begin testifying on Friday.

Prime Minister Justin Trudeau, seven federal ministers, police forces and officials from all levels of government as well as “Freedom Convoy” organizers are all expected to appear in the coming weeks.

During the first afternoon of hearings, lawyers representing many of the groups with standing laid out what they hoped to accomplish and why they were taking part.

Federal government lawyers argued the Liberals did have a “reasonable basis” for using the Emergencies Act.  

The declaration of a public order emergency came after weeks of what Trudeau called an “illegal occupation” of downtown Ottawa, and weeks of frustration from people living in the area, many of whom were critical of the police response.

Peter Sloly resigned as Ottawa’s police chief in the midst of mounting public pressure during the protests. His lawyer, Tom Curry, said the former top cop has a list of recommendations to prevent, mitigate, respond to and recover from significant protest events. 

David Migicovsky, legal counsel for the Ottawa Police Service, said there were well-established processes in place to deal with protesters, but they didn’t work during the “Freedom Convoy.” 

“The police had little time to prepare. The genesis of the protest only began a few weeks before it arrived,” he said, adding it was difficult to gauge the size of the convoy because many people joined as it moved closer to Ottawa. 

“That could not have been predicted.”

He said none of the intelligence reports predicted the “level of community violence and social trauma that was inflicted on the city and its residents.”

A lawyer representing the Ontario Provincial Police said they will show how intelligence was gathered, including through a liaison team with protesters, and shared with policing partners.

Lawyers representing Saskatchewan and Alberta are questioning whether the provinces were adequately consulted before invoking the law, and whether the powers granted under it were too broad. 

Commission counsel presented reports Thursday afternoon that describe dozens of protests mounted against public health measures and lockdowns across Canada, starting in the spring of 2020, culminating in the convoy to Ottawa.

Police took action in many of those demonstrations, and arrested or ticketed protesters who were part of varying-sized crowds over the two years the pandemic dragged on.

The hearings in the building that houses Library and Archives Canada are being livestreamed and members of the public can share their views with the commission online.

Since the commission was established on April 25, it has been collecting documents and interviewing dozens of people, including central figures in the “Freedom Convoy” such as Tamara Lich, Chris Barber, Pat King and James Bauder — all of whom are facing criminal charges for their roles.

Lich was among those in the public viewing gallery Thursday. 

“I’m really happy to be back here and I’m looking forward to testifying,” she said in one of her first public statements since being arrested for helping organize the convoy. 

Rouleau said the process of getting to the start of the inquiry has been “challenging.”

“Discharging my mandate is not an easy task,” he said, later adding that “timelines will be tight.” 

He appealed to participants and their legal counsel to co-operate to ensure the facts are properly presented to the public, and said inquiries are meant to learn from experience and make recommendations for the future.

“They do not make findings of criminal liability, they do not determine if individuals have committed a crime.” 

The City of Ottawa’s auditor general has also launched a review of the local response to the convoy, and several groups have initiated proceedings in Federal Court to challenge the government’s use of the Emergencies Act. 

The inquiry is also distinct from the all-party parliamentary committee struck to review the Emergencies Act’s use in March.

Both the public inquiry and the parliamentary committee, which continues its work, are required under the Emergencies Act.

Banner image: Commissioner Paul Rouleau speaks during the first day of hearings at the Public Order Emergency Commission inquiry, Thursday, October 13, 2022 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

This report by The Canadian Press was first published Oct. 13, 2022. 

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