Chapter 1: Introduction

On 28 January 2022, the first protest associated with the “Freedom Convoy” began in Ottawa, Ontario. Over the subsequent days and weeks, several additional protests and blockades would take place across Canada, including in Coutts, Alberta; Surrey, British Columbia; Emerson, Manitoba; Fort Erie, Ontario; Sarnia, Ontario; and Windsor, Ontario. Several smaller protests would also emerge in other locations across Canada. Figure 1 shows the locations of some of these protests and blockades.

Figure 1—Selected Locations of “Freedom Convoy” Protests and Blockades, January to February 2022

Source: Figure created by the Special Joint Committee on the Declaration of Emergency based on various media reports.

In response to these events, several levels of government declared states of emergency. Figure 2 shows the timeline of these states of emergency in relation to the various protests and blockades that were taking place at the time.

Figure 2—Timeline of Events Related to the 2022 Invocation of the Emergencies Act

Source: Figure prepared by the Special Joint Committee on the Declaration of Emergency based on data obtained from various government and media sources.

On 6 February 2022, the City of Ottawa declared a state of emergency.^[1] On 11 February, the Government of Ontario declared its own state of emergency “as a result of interference with transportation routes and critical infrastructure in locations across the province.”^[2] On 12 February, the Government of Ontario made an emergency order under the Emergency Management and Civil Protection Act, which prohibited persons from blocking critical infrastructure, among other measures.^[3]

On 14 February 2022, pursuant to section 17 of the federal Emergencies Act (the Act), the Governor in Council declared the existence of a public order emergency.^[4] The Proclamation Declaring a Public Order Emergency stated that the emergency consisted of:

(a) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,

(b) the adverse effects on the Canadian economy—recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID‑19)—and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,

(c) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,

(d) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and

(e) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians.^[5]

On 15 February 2022, the Governor in Council made the Emergency Measures Regulations (Regulations) and the Emergency Economic Measures Order (Order).^[6] The Regulations put in place measures to regulate or prohibit public assembly and required that individuals comply with a request for essential goods or services made by certain officials “for the removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade.”^[7]

Among other measures, the Order provided a regime for certain financial institutions to cease certain dealings with individuals or entities “engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the Regulations,” such as participating in a public assembly that may reasonably be expected to lead to a breach of the peace.^[8]

Within a few days of the Regulations and the Order, all the protests and blockades concluded. Beginning on 18 February 2022, a police operation took place in Ottawa that successfully brought an end to the protest that had effectively turned into an occupation of downtown Ottawa. Protests and blockades in other locations across Canada also came to an end.

Section 62 of the Emergencies Act provides that a parliamentary review committee must review the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency. As such, the Special Joint Committee on the Declaration of Emergency (the Committee) began its review on 24 March 2022.

During its review, the Committee heard from 79 witnesses over 16 meetings. Witnesses included federal ministers, departmental officials and representatives from policing services, municipal government, the financial sector and related industries. The Committee also received four written briefs and hundreds of pages of written documentation from several federal departments and agencies.^[9] The Committee wishes to sincerely thank all those who participated in this review for their valuable contribution to an important parliamentary evaluation of the first ever use of the Emergencies Act.

Section 63 of the Emergencies Act requires that an inquiry related to the emergency be established within 60 days after the expiration or revocation of a declaration of emergency. As such, on 25 April 2022, an order in council was published creating the Public Order Emergency Commission (the Commission).^[10]

This report summarizes the evidence considered by the Committee, particularly the testimony of the witnesses who appeared before the Committee, organized into the following chapters: Parliamentary Supervision, Impact of the “Freedom Convoy,” Political Response to the “Freedom Convoy,” Police Response to the “Freedom Convoy,” National Security and the “Freedom Convoy,” Invocation of the Emergencies Act, Special Temporary Measures, Charter Compliance, and Access to Information and Documents. The report also includes recommendations to the federal government.

In preparing this report, the Committee has considered the evidence of the Commission as it relates to the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency. The Commission released its final report on 17 February 2023.^[11] On 6 March 2024, the federal government released its response to the Commission’s report.^[12]

Chapter 2: Parliamentary Supervision

The Emergencies Act provides a regime for the parliamentary supervision of a declaration of emergency, including:

• the consideration of a motion for confirmation of a declaration of emergency by the Senate and House of Commons;
• parliamentary involvement in the revocation, continuation or amendment of a declaration of emergency;
• parliamentary involvement in the revocation or amendment of any order or regulation made pursuant to the Emergencies Act;
• the parliamentary review committee; and
• an inquiry “to be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”^[13]

Pursuant to subsection 58(1) of the Emergencies Act, the motion for confirmation of a declaration of emergency was tabled in the House of Commons on 16 February.^[14] The House of Commons debated the motion from 17 to 21 February and agreed to it on a recorded division on 21 February.^[15]

In the Senate, the motion for confirmation of a declaration of emergency was moved on 21 February.^[16] The Senate debated the motion from 22 to 23 February.^[17]

The declaration of emergency was revoked on 23 February 2022, when the Governor in Council made the Proclamation Revoking the Declaration of a Public Order Emergency.^[18] As a result, in the Senate, the motion for confirmation was withdrawn and did not come to a vote.

Subsection 62(1) of the Emergencies Act provides that a joint committee composed of both senators and members of Parliament shall review “[t]he exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”

On 2 March 2022, the House of Commons adopted a motion to establish a special joint committee “to review the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency that was in effect from Monday, February 14, 2022, to Wednesday, February 23, 2022.”^[19]

On 3 March 2022, the Senate adopted a similar motion to establish a special joint committee, providing it with a mandate that has identical language to the motion adopted by the House of Commons.^[20]

On 5 April 2022, the Committee adopted a motion that, among other things:

[T]he committee begin its study, pursuant to s. 62(1) of the Emergencies Act, of the options that the Government of Canada utilized during the invocation of the Emergencies Act and enumerated in the Proclamation Declaring a Public Order Emergency.

That in this study of each option and for the committee’s final report, the committee consider the necessity, implementation, and impact of that option.^[21]

The Emergencies Act requires the parliamentary review committee to report the results of its review to both houses of Parliament at least once every 60 days while a declaration of emergency is in effect and empowers the Committee to revoke or amend any order or regulation.^[22] As such, as the Emergencies Act was drafted, the parliamentary review committee was intended to provide ongoing oversight while a declaration of emergency was in effect, rather than post facto review like the Commission.

In this case, due to the short duration of the declaration of emergency, the Committee was established after the declaration of emergency had already been revoked. As such, there was no ability for the Committee to report back to both houses on an ongoing basis during the declaration of emergency, and the Committee did not have the opportunity to revoke or amend any orders or regulations.

Given that the Committee and the Commission undertook their work simultaneously, the Committee invited three witnesses to appear to explain the scope of the Committee’s mandate.

Philippe Hallée, Senate Law Clerk and Parliamentary Counsel, and Philippe Dufresne, House of Commons Law Clerk and Parliamentary Counsel, explained that, in accordance with the Emergencies Act and the motions adopted by both houses, the Committee had the authority to review the exercise of powers and the performance of duties and functions pursuant to the declaration of a public order emergency, while the question of whether any other topics were within the scope of its mandate was for the Committee to decide.^[23]

As the minister who sponsored the Emergencies Act in Parliament when it was enacted in 1988, the Honourable Perrin Beatty provided the Committee with insight about the intended role of the Committee:

We anticipated that the primary role of the committee was going to be to provide continuing parliamentary oversight, throughout the time of the crisis, of how the government was using its authority. What we certainly did not preclude was the ability of the committee to look at whether or not the authority that the government had given itself was appropriate.^[24]

The Honourable Perrin Beatty also argued that the Committee should study the circumstances that caused the declaration of emergency and seek information that sheds light on the rationale for the invocation of the Emergencies Act. Finally, he said that it would be appropriate for the Committee to examine whether the threshold for the invocation of the Emergencies Act was met.^[25]

In his brief to the Committee, Ryan Alford, Professor at Lakehead University, noted that the Committee could address whether there was an emergency as defined by the Emergencies Act. He explained that, as “an organ of parliamentary oversight and responsible government,” the Committee should hold the government accountable for its conduct both during the declaration of emergency and at the Commission.^[26]

Some witnesses also addressed the overlapping mandates of the Committee and the Commission.^[27] The Honourable Perrin Beatty indicated that he was not offended by the overlap between the Committee and Commission, and he thought that it would be “healthy in a democracy” if the two bodies reached different conclusions.^[28]

However, in a brief submitted to the Committee, Nomi Claire Lazar, Professor at the University of Ottawa, explained that there was confusion among experts caused by the simultaneous reviews of the Committee and the Commission.^[29] She elaborated that:

[O]verlapping investigations result in public confusion, exhaustion, expense, and the risk of divergent conclusions and recommendations. The current process risks generating a public perception of politicization of the fact-finding process. And these factors together may undermine public trust in the mechanisms of accountability, in turn undermining their effectiveness.^[30]

She invited the Committee to consider its role as a forum for robust public debate beginning after fact finding is completed “by a single body whose neutrality the public widely accepts.”^[31]

The Commission’s final report recommended that the Emergencies Act be amended to clarify the mandate and timing of a parliamentary review committee.[32] In its response to the Commission’s recommendations, the federal government agreed that it would be beneficial for the parliamentary review committee to be struck “as soon as possible to allow it to exercise its oversight function, and that the Committee’s review be conducted expeditiously.”[33] However, the federal government did not necessarily commit to amending the Emergencies Act to bring about those changes, but rather proposed further consultations on a range of potential amendments to this Act.

Given the Committee’s experience and evidence received from witnesses with respect to its timing and the timing of the Commission, the Committee agrees that, in the future, the parliamentary review committee’s work should begin sooner after an emergency is declared. As such, the Committee recommends:

Recommendation 1

That the federal government amend the Emergencies Act to ensure that the parliamentary review committee:

• is appointed within 48 hours after the proclamation of the emergency;
• sit only over the course of the emergency in an oversight capacity; and
• not sit simultaneously with the inquiry provided for in section 63 of the Emergencies Act.

Recommendation 2

That the federal government amend the Emergencies Act to require that the motion considered in each house of Parliament to confirm a declaration of emergency also make provision for the designation or establishment of the parliamentary review committee, so as to ensure that the committee becomes active at the earliest possible opportunity.

The Committee recognizes that other aspects of its review might have to take place differently in the future. For instance, although the Committee found the legal assistance provided by the Senate and House of Commons law clerks to be very helpful, the Committee can foresee future scenarios in which it might need to engage external legal counsel to properly conduct its work.

In any case, with respect to how the Committee ought to operate in the future, the Committee recommends:

Recommendation 3

That the Senate and House of Commons administrations provide any future parliamentary review committee with an overriding priority to access the use of parliamentary resources available for committee meetings during a period of national emergency.

Finally, in relation to broader public accountability and the inquiry process, the Committee recommends:

Recommendation 4

That the federal government collaborate with Parliament to ensure that the Emergencies Act is amended to include an automatic review of the Act itself by way of a joint parliamentary committee, either within the 12 months following the production of the final report on the mandated inquiry when the Act has been invoked, or every 10 years when the Act has not been invoked.

Chapter 3: Impact of the “Freedom Convoy”

Impact on Residents and Communities

Many witnesses said that the “Freedom Convoy” protests and blockades had a significant effect on residents’ well-being, the livability of the neighbourhood and their safety.^[34] Beyond the constant barrage of noise and diesel fumes, these residents experienced stress, psychological distress, sleep deprivation, hearing loss, and even suicidal thoughts, while dealing with protesters’ aggressive and intimidating behaviour. The constant honking was particularly traumatic for residents of downtown Ottawa.^[35] Mayor of Ottawa Jim Watson said that the combined presence of 18 wheelers and vehicles in the downtown core felt like “an overpowering and threatening armada” for residents.^[36] The Mayor of Coutts, Jim Willett, said that many elderly residents in his community were afraid to travel through the protest area because they felt intimidated by the protesters.^[37]

Ottawa city councillor Mathieu Fleury said that some residents were still traumatized by the experience months later.^[38] Some witnesses highlighted that the emergency and distress call volume increased significantly in relation to events associated with the “Freedom Convoy.”^[39] For example, the City of Ottawa had over 18,000 3-1-1 calls, which is significantly higher than the normal volume.^[40]

A number of witnesses also said that those involved in restoring order, including police officers, bylaw officers and snowplow operators, suffered mental anguish and exhaustion.^[41] Stephen Laskowski, President of the Canadian Trucking Alliance, spoke about the consequences for truckers stuck in the blockades, including the impact on their livelihoods.^[42]

Furthermore, some witnesses told the Committee that many residents and workers experienced travel disruptions.^[43] Some services had to be relocated or interrupted.^[44] For instance, in Ottawa, staff at the Montfort Hospital had to stay in nearby hotels because of major traffic delays, leading to a steep decline in activity in the emergency room.^[45] As well, 13 families had to delay or reschedule cancer treatments at the Children’s Hospital of Eastern Ontario.^[46] Jim Willett added that, in Coutts, school buses and courier services could not cross the protest area.^[47]

Lastly, in terms of lessons learned from the experience, witnesses from the City of Ottawa explained that proactively closing streets to traffic could have prevented the blockades from happening and trucks from being set up downtown.^[48] Furthermore, mistakes – such as allowing trucks to use non-truck routes, allowing protesters to bring recreational equipment to the protest area, and failing to inform residents and businesses about the authorities’ plans – could have been avoided.^[49]

Economic Impact

Various witnesses stated that many businesses were affected by the “Freedom Convoy,” whether financially or by being forced to temporarily or fully suspend their activities, particularly because they were unable to receive deliveries.^[50] Mathieu Fleury said that it was “chaos”^[51] for businesses and institutions in the area. Specifically, the Rideau Centre was closed for 24 consecutive days, representing a loss of revenue of $2 million per day for those businesses.^[52]

Mathieu Fleury also said that small and independent businesses were particularly hard hit. Some restaurant owners faced stark choices: they could either serve protesters in violation of public health regulations or close entirely.^[53] Jim Watson added that the tourism industry was also affected.^[54]

Various witnesses told the Committee about the significant economic impacts associated with the illegal border blockades.^[55] For example, the City of Windsor spent $5.7 million to end the blockade, and it has been calling for the governments of Ontario and Canada to reimburse the municipality.^[56]

On the other hand, in its brief to the Committee, the Canadian Civil Liberties Association remarked:

There were concerns about the economic impacts of the border blockades that may, over a long period, have posed a serious threat to health and safety. However, when the emergency was declared, there was no compelling evidence that Canadians were at risk of going without necessities. The economic harms did not amount to circumstances that seriously endangered Canadians’ lives, health or safety.^[57]

Many witnesses highlighted the economic impact at the national level of the blockade of the Ambassador Bridge in Windsor, particularly for the automotive industry.^[58] The top concern for many witnesses was supply chain disruptions with American trade partners.^[59] Some witnesses said that diverting goods to other border crossings was not an adequate solution, because none of the other crossings have the same capacity as the Ambassador Bridge.^[60]

In addition, some witnesses were concerned about Canada’s reputation in international trade and how border infrastructure blockades could affect foreign investment in Canada.^[61] In February 2024, the Honourable Dominic LeBlanc, Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs, reiterated that the blockade of the Ambassador Bridge affected $390 million in trade between Canada and the United States every day, given that 30% of all trade by road between the two countries uses that crossing.[62]

The Committee acknowledges the impact of the “Freedom Convoy” on many individuals and entities in a variety of sectors. Therefore, the Committee believes that, following an emergency as defined in the Emergencies Act, it could prove useful to hold consultations with people representing the affected regions to determine the extent of the damage and the mitigation measures that could be taken to prevent similar future occurrences.

Chapter 4: Political Response to the “Freedom Convoy”

As a multijurisdictional event that took place in multiple municipalities within several provinces, all three levels of governments were implicated to some extent in the response to the “Freedom Convoy.” Other than the federal government, several other governments declared states of emergency in response to the events of January and February 2022. These included the Government of Ontario, the City of Ottawa and the City of Windsor.

Pursuant to the Emergency Management and Civil Protection Act, the Government of Ontario declared a state of emergency on 11 February 2022. The state of emergency allowed the provincial government to enact Ontario Regulation 71/22: Critical Infrastructure and Highways, which prohibited the blocking of critical infrastructure, among other measures.^[63] According to the province, the emergency order was necessary because existing regulation-making powers were not successful in alleviating the harm caused by the blockades in Ottawa and at the Ambassador Bridge.^[64]

In relation to the federal government’s decision to invoke the Emergencies Act, section 25 of the Act requires that the “lieutenant governor in council of each province in which the effects of the emergency occur shall be consulted with respect to the proposed action.” That section also provides that if a province cannot be adequately consulted before the issue or amendment of a declaration of public order emergency, the consultation may take place after the fact.

On 16 February 2022, the Honourable Marco Mendicino, former Minister of Public Safety, tabled his Report to the Houses of Parliament: Emergencies Act Consultations in the House of Commons.^[65] The same report was tabled in the Senate by the Honourable Senator Marc Gold, Government Representative in the Senate, on 21 February.^[66]

The report detailed the consultations that had taken place since late January 2022 between the federal government and provincial, municipal and international partners. It described a First Ministers’ meeting that was held on 14 February 2022, to consult premiers on whether to declare a public order emergency, and included an annexed letter from the prime minister to the premiers indicating that their views had been taken into account in determining what the special temporary measures would consist of in response to the “Freedom Convoy.”^[67]

Although the Report to the Houses of Parliament: Emergencies Act Consultations mentions that the federal government consulted Indigenous leaders regarding the blockades, the Committee agrees that there is a duty to consult before the invocation of the Emergencies Act. As such, the Committee recommends:

Recommendation 5

That the federal government amend the Emergencies Act to provide that it be required to undertake and set the parameters for consultations with Indigenous peoples prior to the invocation of the Emergencies Act, with due regard to the principles of the United Nations Declaration on the Rights of Indigenous Peoples, including justice, democracy, respect for human rights, non-discrimination and good faith.

The Committee agrees that the Emergencies Act should be amended to take greater consideration of provincial governments and require the federal government to provide more information on the national nature of the emergency. Evidence received by the Committee and the Commission supports this position. For instance, Leah West testified at the Committee:

At the same time, I would say that we also need to amend what consultation is from the federal government to the provinces, and make something of required meaningful consultation on that end as well. We shouldn’t be looking at one without the other.^[68]

At the Commission, the provincial governments of Saskatchewan and Alberta decried the fact that the provinces were not adequately consulted by the federal government before the invocation of the Emergencies Act.^[69]

The Commission’s report states that the 14 February First Ministers’ Meeting “was the only time the premiers were asked for their views on the invocation of the Emergencies Act.”^[70] The report goes on to explain:

I certainly agree that the premiers had little time to prepare and that the notice they received was not explicit regarding the topic to be discussed at the First Ministers’ Meeting. That said, in the context of the events, the topic of discussion probably did not come as a surprise to many of the participants.

The Federal Government indicated to the Commission that one of the reasons it did not inform the provinces of the purpose of the meeting was the concern that news could leak, and the potential for the declaration of an emergency could anger protesters and increase the risk of violence. I accept this point as valid, though I would characterize it as one taken out of an abundance of caution.^[71]

During his testimony before the Commission, Prime Minister Justin Trudeau also described how it was decided at the Cabinet meeting of 13 February that provincial premiers would be consulted the next day and a telephone meeting took place with the Liberal caucus before that meeting was held.^[72] The prime minister also explained that the First Ministers’ Meeting took place by conference call, and it lasted approximately one hour.^[73] During that meeting, the premier of Saskatchewan remained against the invocation of the Emergencies Act, and the premier of Alberta said that it did not need to be used in Alberta.^[74]

The Report to the Houses of Parliament: Emergencies Act Consultations further specifies that the provinces of Quebec, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island commented that the Emergencies Act was not necessary in their respective provinces.^[75]

Witnesses at the Committee also discussed the national nature of public order emergencies under the Emergencies Act. Perrin Beatty testified that

[i]t has to meet the standards of the national emergency. The consequences have to be so severe that the welfare of the country as a whole is affected. However, that does not mean that an emergency has to take place in all regions of the country.

[…]

We wanted to have legislation that would allow the government to say, “[t]here’s a grave crisis here. It meets the definition of a national emergency, but we aren’t going to suspend everybody’s rights; we’re going to target it.^[76]

Finally, Ryan Teschner, Executive Director and Chief of Staff for the Toronto Police Service Board, told the Commission that

[If] the government doesn’t put on the table what invoking means, what are the specific regulations that they may put in place as a result of invoking the Act? What are the impacts of those regulations on some of the actors who are going to be impacted? I don’t know how you can have meaningful consultation in the absence of exploring those dimensions.^[77]

Many witnesses commented on the political response to the “Freedom Convoy” at the federal level of government, including the consultations and meetings that took place before and after the invocation of the Emergencies Act.^[78] More specifically, former Minister Mendicino and the Honourable Bill Blair, former Minister of Emergency Preparedness, discussed the role played by the federal government in working with police and participating in consultations with other levels of government. Former Minister Mendicino told the Committee that the federal government “remained engaged with law enforcement throughout to ensure that they had the support and the resources they needed.”^[79] He also discussed the ongoing consultations that took place with the provinces and territories, which took place through the implementation of the special temporary measures enacted during the declaration of emergency.^[80] For his part, former Minister Blair testified about his communications with the Royal Canadian Mounted Police (RCMP) and other police leadership in relation to the blockades in Coutts, as well as possible options to secure tow trucks.^[81]

Some mayors of affected municipalities testified that they felt supported by the federal government overall. Jim Watson testified that he participated in several meetings with federal representatives and that he spoke directly with Prime Minister Justin Trudeau as early as 3 January.^[82] Drew Dilkens, Mayor of the City of Windsor, explained:

I felt that as Mayor of Windsor I had the ear of both federal and provincial government representatives at the highest levels, including [former] Minister Mendicino, [former] Minister Blair, Ontario Solicitor General Jones, Premier Ford and Prime Minister Trudeau. My staff was in contact with and coordinated with political staff across federal and provincial ministers’ offices and the security establishment.^[83]

In a similar vein, Steve Kanellakos, City Manager of the City of Ottawa, said that Deputy Minister Rob Stewart of Public Safety Canada proactively reached out to him after the first weekend of the protests to talk, and he became a key contact between the City of Ottawa and the federal government.^[84]

However, some witnesses from impacted municipalities highlighted areas for improvement regarding their relationships with the federal government in responding to emergencies such as the one experienced in January and February 2022. Steve Kanellakos testified about the need for a memorandum of understanding between the federal government and the City of Ottawa for dealing with large-scale emergencies such as the one experienced during the “Freedom Convoy.”^[85]

Drew Dilkens also commented that the federal and provincial governments should indemnify the City of Windsor for the significant unforeseen costs that were incurred as a result of the blockade of the Ambassador Bridge in Windsor.^[86] Therefore, the Committee recommends:

Recommendation 6

That the municipalities that bear costs reasonably incurred as a result of an emergency (such as, jersey barriers) be indemnified in the event of such expenses; and that a tripartite roundtable composed of federal, provincial and municipal appointees be convened to discuss these costs in the aftermath of an emergency.

At the provincial level, some witnesses were critical of the level of involvement of the Government of Ontario and Premier Doug Ford in meetings related to the response to the “Freedom Convoy” and the lack of responsibility taken by the province for certain elements surrounding the “Freedom Convoy.”

For example, Jim Watson shared with the Committee that the Government of Ontario declined to take part in the tripartite committee dialogue involving the City of Ottawa, the federal government and the Government of Ontario.^[87] He also highlighted that Premier Ford did not visit Ottawa during the protests.^[88] The brief submitted by the Canadian Civil Liberties Association also took the position that the Government of Ontario “did not meaningfully respond to the protests until around February 9.”^[89] Jody Thomas, National Security and Intelligence Advisor, Privy Council Office, attempted to explain the absence of the Government of Ontario in testifying that:

Ontario determined that this was a protest in the federal capital because of the federal mandate, and was therefore a federal problem. It was a much more complex issue than that. They did not come to the table, to the extent that we would have appreciated, because of that.^[90]

Drew Dilkens explained that greater collaboration and support from both the federal and provincial levels were needed to improve safety and security at the Canadian borders.^[91]

Both Ontario Premier Doug Ford and Deputy Premier Sylvia Jones, who was Solicitor General of Ontario during the “Freedom Convoy,” declined invitations to appear as witnesses before both the Committee and the Commission. The Commission challenged the refusal to testify in the Federal Court, and the Federal Court ruled that the premier and deputy premier could not be compelled to testify before the Commission due to the immunity provided to them as part of their parliamentary privilege.^[92]

The Committee recommends therefore:

Recommendation 7

That the federal government amend the Emergencies Act to provide a clear and delineated role for the provinces in the event of future disruptions, and that, as part of this exercise: (a) there should be a review of policing roles, including jurisdictional responsibilities; (b) the three levels of government should enter into an agreement that clearly delineates those roles and responsibilities in the event of an emergency in the National Capital Region and at border crossings; and (c) other crucial areas and infrastructure should also be considered within this review.

Chapter 5: Police Response to the “Freedom Convoy”

Police from all levels of government were involved in the response to the “Freedom Convoy” protests and blockades before and during the declaration of emergency. Specifically, the RCMP, the Ontario Provincial Police (OPP), and the Ottawa Police Service (OPS) were the main policing agencies implicated at the time.^[93]

Other provincial and municipal policing agencies involved in policing the events that led to the declaration of emergency included the Toronto Police Services, the Windsor Police Services, York Regional Police, Sûreté du Quebec, Gatineau Police and Peel Regional Police.^[94] Smaller municipalities, such as Coutts, Alberta, are policed by the RCMP through Police Services Agreements.^[95]

The federal government has a role to play in the direction of the RCMP. The Royal Canadian Mounted Police Act provides that the Commissioner of the RCMP holds office “under the direction of the Minister” of Public Safety and Emergency Preparedness.^[96] However, the Commissioner “has the control and management of the Force and all matters connected with the Force.”^[97]

The Police Services Act provides that the Solicitor General of Ontario may arrange to provide police services in an emergency.^[98] Indeed, the OPP was involved early on in supporting the policing response to the “Freedom Convoy,”

[In] providing intelligence reports to law enforcement partners, dialoguing with convoy organizers, and working with municipal police services to provide resources.^[99]

The OPS experienced changing leadership during the protests in Ottawa. Peter Sloly served as Chief of the OPS from 28 October 2019 to 15 February 2022, when he resigned. Subsequently, Steve Bell was appointed Interim Chief of the OPS.

To ensure the security of the Parliamentary Precinct, several organizations were involved in monitoring or responding to the events that took place on Parliament Hill, including the OPS, the Parliamentary Protective Service (PPS), the Senate’s Corporate Security Directorate, and the Office of the Sergeant-at-Arms and Corporate Security of the House of Commons.

The PPS was created following a memorandum of understanding (MOU) signed in June 2015 between the speakers of the Senate and House of Commons, the Minister of Public Safety and Emergency Preparedness and the Commissioner of the RCMP.^[100] That MOU provided that the PPS “is established to provide integrated physical security throughout the Parliamentary Precinct and the grounds of Parliament Hill.”^[101] It also set out the role of the Director of the PPS:

The Director will be responsible for planning, directing, managing and controlling operational parliamentary security […] taking into account the objectives, priorities and goals as set by the Speaker of the Senate and the Speaker of the House of Commons.^[102]

In another MOU between the RCMP and the House of Commons concerning the sharing of information for the purpose of enhancing the safety and security of the House, the responsibilities of each organization were further specified. This MOU provided that the House, through the Sergeant-at-Arms, “has the right and mandate to ensure the safety and security of the House” and “complete and sole authority to regulate and administer its precinct.”^[103] An equivalent MOU between the RCMP and the Senate, if it exists, was not shared with the Committee.

Challenges Faced by Police

Many witnesses commented that the protests and blockades stemming from the “Freedom Convoy” were unprecedented.^[104]

Several witnesses explained that the size of the demonstrations, especially in Ottawa, presented unique challenges for police, including a lack of resources to manage the protests safely.^[105] Brenda Lucki, Commissioner of the RCMP, discussed how the size and entrenched nature of the protest in Ottawa made it difficult to ensure public safety:

This was completely a different type of protest, where people were not leaving. Our police liaison teams were trying to motivate people to leave, because when we’re dealing with a mass protest, it’s all about reducing that footprint so that we can be as safe as we can with enforcement action. When the weekend was full of protesters, it was not the time to do any type of enforcement, because it was too dangerous for the public and the police.^[106]

According to the OPS, the size of the protest in Ottawa also made it difficult to staff the protest with an adequate number of police officers, with 2,200 officers required in the end to bring the protest to an end.^[107] Referring to his 7 February formal request for 1,800 additional officers, Peter Sloly, retired Chief of Police of the OPS, explained:

The primary requests that I made on a continual basis were for resources, particularly more police officers and police-trained personnel, and secondarily, access to tow trucks. It was predictable access to a large number of officers—1,800—and access to predictable, sustainable levels of heavy tow trucks.^[108]

Some witnesses suggested that a lack of leadership among the protesters made it more difficult to negotiate a conclusion to the protests or the removal of trucks from residential areas of Ottawa.^[109] In this vein, Peter Sloly explained:

In many occasions, there is a singular organizing body or a significant influencer within a protest group. This was not the case. There were significant efforts by multiple jurisdictions and multiple agencies at all three levels of policing to seek negotiated agreements, reasonable understandings and commitments, but there was never a unified “other” with which any police agency could come to any substantive understanding as to whether what was agreed to would actually happen on the day of.^[110]

However, there was some success in relocating some of the heavy trucks used as part of the protest in Ottawa. According to Steve Kanellakos, the municipality was advised that the protesters wished to meet with a senior city official, and those talks culminated in the relocation of approximately 40 heavy trucks.^[111]

Many witnesses noted that the use of vehicles, including heavy trucks, to protest presented difficulties in the policing response to the protests and blockades, both within and outside of Ottawa.^[112] Jim Watson identified the inability to move the trucks as the biggest challenge faced in Ottawa.^[113]

Some witnesses explained that it was not possible to identify available tow truck drivers to assist in any efforts to relocate or remove the heavy trucks.^[114] Brenda Lucki explained some of the reasons why tow truck companies refused to cooperate:

There were tow truck companies that were receiving funds through the protest not to assist us. Some of the individuals in the companies were very worried about their safety and their livelihood, and they were experiencing a lot of harassment.^[115]

Other aspects of the heavy trucks proved also to be a source of concern for some witnesses. Larry Brookson, Acting Director of the PPS, expressed apprehension about the content of the trucks, which was unknown at the time, stating:

The reality for me is I didn’t know what was in those vehicles, and I had no means to verify what was in those vehicles, so that was a constant security concern for me throughout the days of the occupation.^[116]

The Committee heard further testimony about the impact of the declining public trust and confidence in police leadership, especially in Ottawa.^[117] In justifying his decision to resign as chief of the OPS during the protests in Ottawa, Peter Sloly explained that any decline in public trust creates a public safety risk, and in Ottawa, this contributed to a slowing down of resources:

Declining public trust creates a public safety risk in any policing organization, any policing environment. The focus of that was increasingly on the Ottawa Police Service for a national security crisis, and increasingly on the officer who held that position, chief of police, which was me. My interpretation—others will have their own opinions—was that a declining level of trust in my officers and in my office was potentially slowing down resources and supports necessary for our officers to be able to safely and successfully end this. I took myself out of the equation because I wasn’t going to take 1,400 people out of the equation.^[118]

In response to criticism among members of the public that the OPS did not do enough during the demonstrations to enforce existing statutory authorities, Peter Sloly commented that bylaws, provincial statutes and criminal offences were enforced “when [police] could do so safely and without further escalating an already highly volatile situation.”^[119]

However, Steve Bell, Interim Chief of the OPS, expressed his hope that trust could be rebuilt among residents of the City of Ottawa. He noted that the OPS was in the process of “working to rebuild public trust with our community members […] that period of time [during the protests] left them with a lack of a feeling of safety and security.”^[120]

Finally, several witnesses discussed challenges stemming from a lack of accurate intelligence about the nature and intent of the “Freedom Convoy.”^[121] Steve Kanellakos explained to the Committee how initially, based on the intelligence that was received, police and city officials expected the protests to be similar to others previously experienced in the nation’s capital:

I think that the assumptions that were made leading into the first weekend were that it was within the usual paradigm of the hundreds of protests we have every year in the city of Ottawa and that the advanced planning that would have been required—to some of the other questions we’ve been asked—to effectively deal with that weekend were not in place, so we got behind as a city and as a police service. We got behind the event and could not get ahead of it then because the resources were not adequate to meet it.

The biggest lesson, in my mind—and there’s been a lot of discussion at the public inquiry—is that the intelligence translating into strategy was a big gap.^[122]

Kent Roach, Professor at the University of Toronto’s Faculty of Law, suggested that the police do not have necessary intelligence expertise, particularly when a determination regarding violent extremism is needed.^[123] He further explained:

Although the RCMP and [the Canadian Security Intelligence Service] are subject to fairly rigorous scrutiny by [the National Security and Intelligence Review Agency], the OPP and municipal forces, when they collect intelligence, are subject to very limited scrutiny, only by the Ontario independent police review director, if that person has enough resources to do systemic reviews. My understanding is that they don’t.^[124]

Given the evidence received about intelligence and policing, the Committee therefore recommends:

Recommendation 8

That the federal government, in conjunction with Indigenous, provincial, and territorial governments; police and intelligence agencies; the Parliamentary Protective Service; the Canadian Association of Chiefs of Police; and other stakeholders, develop or enhance protocols on information sharing, intelligence gathering, and distribution that:

• identify how and by whom information and intelligence should be collected, analyzed and distributed for major events, such as protests, that have multijurisdictional or national significance;
• enhance the ability to collaboratively evaluate information collected for reliability;
• adhere to the Canadian Charter of Rights and Freedoms and the reasonable expectations of privacy of those affected;
• enhance record-keeping regarding the collection, analysis and distribution of information and intelligence;
• ensure compliance with legislative mandates, for example, statutory limits on surveillance of lawful protests by the Canadian Security Intelligence Service;
• promote appropriate access to and interpretation of social media and open-source materials;
• ensure that, where appropriate, comprehensive, timely and reliable intelligence is communicated to police and government within their appropriate spheres of decision making; and
• promote objective, evidence-based risk assessments that are written to both acknowledge information deficits and avoid misinterpretation.

Recommendation 9

That the federal government, in conjunction with Indigenous, provincial, and territorial governments; police and intelligence agencies; the Parliamentary Protective Service; the Canadian Association of Chiefs of Police; and other stakeholders, consider the creation of a single national intelligence coordinator for major events of a national, interprovincial or interterritorial dimension.

Cooperation Among Different Levels of Policing

Several witnesses testified about the different groups that were established to facilitate policing of the “Freedom Convoy,” and how these groups promoted teamwork and information-sharing among the OPS, OPP and RCMP, in concert with other partners.^[125] These groups included the National Capital Region Command Centre (NCRCC), the Integrated Command Centre (ICC), the joint intelligence group, the joint planning cell, and Intersect.

The NCRCC included representatives from the RCMP, OPP, OPS, PPS, and the City of Ottawa, as well as “other law enforcement from the Quebec side, transport, ambulance technicians and firemen.”^[126] Then Deputy Commissioner of Federal Policing, Michael Duheme of the RCMP, provided testimony to the Committee regarding the role of the NCRCC:

It’s just a coordination hub to make sure that everybody’s in tune with what’s going on […] [i]t’s more a coordination centre for information that comes in before we go into the operational mode […] That’s also used as a hub for intelligence that’s going on for the event.^[127]

Created on 12 February 2022, the ICC was led by the OPS, and it included the OPP and the RCMP.^[128] Its role was to review the plan in response to the “Freedom Convoy.”^[129] Michael Duheme told the Committee how the ICC worked:

In the integrated command centre that we had, there were multiple law enforcement agencies there. At gold level, as it were, there was me, Deputy Commissioner Harkins from the OPP, as well as the interim chief of police, Mr. Bell.

Discussions were ongoing on the way forward. For every plan that was set forward, we were in agreement with the plan. It wasn’t necessarily a consensus, but everybody was in agreement as to how we were going to tackle this and the sequence of events as we moved forward.

The OPS is the one thing I want to make clear. OPS maintained the lead throughout this. Both the RCMP and the OPP were supportive throughout, but the joint command…. There were conversations as to the best way to proceed forward to address the situation.^[130]

According to Brenda Lucki, the joint planning cell was created “specifically for the enforcement.”^[131] Finally, Intersect was described by Steve Kanellakos as an intelligence group that was led by the OPS.^[132]

Some witnesses reflected positively on the level of cooperation among the various police services involved.^[133] Specifically, Peter Sloly credited the work of Commissioner Thomas Carrique of the OPP and his senior staff as “fundamental to the ultimate success of what took place in January and February.”^[134] The sharing of resources by the OPP and RCMP with the OPS, and specifically the number of officers sent to assist in Ottawa, was also discussed by several witnesses.^[135]

Other witnesses reflected less favourably on the cooperation between different levels of policing.^[136] Jim Watson remarked that there was greater cooperation from the OPP and RCMP after the resignation of Peter Sloly.^[137] Kent Roach described the various levels of policing were described as “fragmented and dysfunctional governance silos.”^[138]

In a brief submitted to the Committee, the Canadian Civil Liberties Association summarized some of the findings of the Commission in relation to policing challenges, including that several witnesses testified that “the issue was not legal authority, but coordination, planning, and resource issues within and between police services.”^[139]

In his appearance before the Committee in February 2024, Michael Duheme, now Commissioner of the RCMP, said that the use of additional police resources has evolved in the last two years following the declaration of a public order emergency, in that a call for assistance on Parliament Hill now goes first to the OPP, not the RCMP. The RCMP may later intervene to establish order on the Hill, at the request of the OPP, if necessary.^[140] Michael Duheme added that, “[f]rom a law enforcement perspective, we are in a different place than we were when the convoy happened.”^[141]

Before the invocation of the Emergencies Act, the Committee agrees that relevant police services should be meaningfully consulted by the federal government. This recommendation stems from evidence received by both the Commission and the Committee.

There is evidence to suggest that police leadership had not exhausted all available tools to bring the protests and blockades to their conclusion when the federal government decided to invoke the Emergencies Act. At the Commission, a 14 February 2022 email from Brenda Lucki to the chief of staff to former Minister Mendicino states that:

This said, I am of the view that we have not yet exhausted all available tools that are already available through the existing legislation. There are instances where charges could be laid under existing authorities for various Criminal Code offences occurring right now in the context of the protest. The Ontario Provincial Emergencies Act just enacted will also help in providing additional deterrent tools to our existing toolbox.

These existing tools are considered in our existing plans and will be used in due course as necessary.^[142]

Brenda Lucki discussed this email during her testimony at the Commission on 15 November 2022.^[143] Furthermore, according to an exhibit received by the Commission, Brenda Lucki was present at a 13 February Cabinet meeting but nothing in the minutes for that meeting indicates that she spoke at that meeting.^[144]

Jody Thomas also discussed her consultations with Brenda Lucki at both the Commission and the Committee. Jody Thomas testified at the Commission that, at the Incident Response Group (IRG), individuals who attend IRG meeting “are expected to provide information that is of use to decision-makers, being the Prime Minister and his Cabinet.”^[145] She also told the Commission that Brenda Lucki did not say anything specific as to whether law enforcement had exhausted all its tools.^[146]

Jody Thomas told the Committee that she spoke to Brenda Lucki several times before 14 February 2022, and that she did not ask Brenda Lucki whether there were other means that could have been used other than invocation of the Emergencies Act.^[147] She also commented that she did not read the operational plan prepared by the police services during the declaration of emergency.^[148]

Furthermore, Peter Sloly told the Committee that the OPS had a plan ready to clear downtown Ottawa, and the OPS maintained control of the plan during his tenure as chief of police.^[149]

Policing of the Parliamentary Precinct

Some witnesses testified regarding the special measures that were put in place to ensure safety on Parliament Hill during the “Freedom Convoy,” as part of the RCMP’s mandate to protect Parliament and parliamentarians.^[150] Brenda Lucki described how both vehicular and protester access to Parliament Hill was restricted, and a staging area was provided by the RCMP where parliamentarians could meet and get driven to Parliament if they so wished.^[151]

Several witnesses described challenges specific to maintaining safety within the Parliamentary Precinct during the protests in Ottawa. For example, Larry Brookson commented that, during the protests in Ottawa, he had concerns regarding the safety of parliamentarians crossing Wellington Street in Ottawa to enter the West Block.^[152] Julie Lacroix, Director of Corporate Security at the Senate, alluded to challenges with technology and infrastructure, stating that, in the future, “I think my recommendation would be to ensure we have the necessary technology and infrastructure to allow us to close and secure the precinct when necessary.”^[153] Larry Brookson and Patrick McDonell, Sergeant-at-Arms and Corporate Security Officer at the House of Commons, further underlined a lack of situational awareness as a critical concern throughout the protests in downtown Ottawa.^[154]

Patrick McDonell also described the harassment experienced by parliamentary staff during the “Freedom Convoy” protests in Ottawa:

What was happening every day was that our employees were being harassed. […] We had employees pulling in and out of there every day. There was banging on the cars and there was a police cruiser within sight, a police cruiser witnessing it, and nobody exiting the police cruiser.^[155]

Patrick McDonell explained that incidents of harassment of parliamentary staff were not policed by the OPS and had to be addressed by the PPS.^[156]

Larry Brookson testified to the Committee that, approximately one week before the arrival of the “Freedom Convoy,” the PPS had recommended that vehicles not be permitted to park on Wellington Street, but the OPS permitted protesters to park their vehicles anyway, and that this decision compromised safety in the Parliamentary Precinct.^[157] Jim Watson suggested that allowing protesters to use Parliament Hill as a backdrop may have contributed to the entrenched nature of the protests, describing how “[t]here’s nothing spectacular about the scenery on Slater and Albert [streets], and they probably wouldn’t stay that long [if Wellington had been closed].”^[158]

Both Larry Brookson and Patrick McDonell recommended that the Parliamentary Precinct be extended to include parts of Wellington Street.^[159] The Committee agrees, and therefore recommends:

Recommendation 10

That the Parliamentary Precinct be expanded to include Wellington Street; and that additional expansions to the Parliamentary Precinct be considered in consultation with the Parliamentary Protective Service, Ottawa Police Service, Ontario Provincial Police, and the federal, provincial and municipal governments.

Recommendation 11

That, in view of the above recommendation, the federal government give consideration to resource allocation for the Parliamentary Protective Service to secure an enlarged Parliamentary Precinct; and that Wellington Street be closed to vehicular traffic in order to further secure Parliament Hill for parliamentarians, visitors and residents of the area.

In relation to policing in the Parliamentary Precinct, the Committee recommends:

Recommendation 12

That decisions concerning parliamentary security operations, and particularly in striking the right balance in ensuring the Parliament of Canada is safe and secure while remaining open and accessible to all, including those peacefully protesting, be the responsibility of security and policing professionals, and be subject to parliamentary oversight.

On the second anniversary of the declaration of a state of emergency, Shawn Tupper, Deputy Minister of Public Safety Canada, testified before the Committee that conversations were still ongoing concerning the Parliamentary Precinct regarding, one, how the Parliamentary Precinct and its boundaries are defined and, two, how the precinct is policed and maintained.^[160]

Committee takes note that, in its response to the recommendations of the Commission’s report, the federal government stated that:

[It] reaffirms its commitment to continue discussions with the City of Ottawa to transfer a portion of Wellington Street to the federal government, with the goal of marking the legal and geographic boundaries of the Parliamentary Precinct, and clearly defining security and policing roles and responsibilities in the area.^[161]

Chapter 6: National Security and the “Freedom Convoy”

There are several federal departments and agencies involved in national security and the collection and assessment of intelligence related to national security. Eight core federal organizations within Canada’s security and intelligence community have mandates related to national security, intelligence or both: the National Security and Intelligence Advisor, the Canadian Security Intelligence Service (CSIS), the Department of National Defence/Canadian Armed Forces, the Canada Border Services Agency (CBSA), the Communications Security Establishment, the RCMP, Global Affairs Canada, and the Integrated Terrorism Assessment Centre (ITAC).^[162] There are nine other federal departments and agencies that are also involved in national security and intelligence, including the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), Public Safety Canada and Justice Canada.^[163] Most of these departments and agencies submitted institutional reports to the Commission in relation to their activities during the “Freedom Convoy.”^[164]

Two types of national security threats came up during the Committee’s review of the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency of February 2022: ideologically motivated violent extremism (IMVE) and threats to critical infrastructure.

IMVE, which can be distinguished from religiously motivated violent extremism and politically motivated violent extremism, “is often driven by a range of grievances and ideas from across the traditional ideological spectrum” and draws on “a personalized narrative which centres on an extremist’s willingness to incite, enable and or mobilize to violence.”^[165] CSIS has identified four categories of IMVE, which are xenophobic violence, anti-authority violence, gender-driven violence and other grievance-driven and ideologically motivated violence.^[166]

Critical infrastructure is defined by Public Safety Canada as:

[P]rocesses, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government. Critical infrastructure can be stand-alone or interconnected and interdependent within and across provinces, territories and national borders. Disruptions of critical infrastructure could result in catastrophic loss of life, adverse economic effects, and significant harm to public confidence.^[167]

The National Strategy for Critical Infrastructure identifies 10 critical infrastructure sectors in Canada: energy and utilities; finance; food; transportation; government; information and communication technology; health; water; safety; and manufacturing.^[168]

It should be noted here that the discussion with respect to “threats to national security” as it relates to the invocation of the Emergencies Act can be found in Chapter 7: Invocation of the Emergencies Act of this report.

On the subject of the federal government’s response to the national security threats during the “Freedom Convoy,” several witnesses described the role of the various federal departments and agencies that were involved in monitoring and assessing the situation. According to Jody Thomas, some of these organizations involved included CSIS, the RCMP, the Canadian Forces Intelligence Command, the foreign intelligence group of Global Affairs Canada, the CBSA, and Immigration, Refugees and Citizenship Canada.^[169]

David Vigneault, Director of CSIS, testified that, during the “Freedom Convoy,” CSIS used its investigative resources to monitor known threats and inform law enforcement partners and the government about the nature of developing national security threats.^[170] In a second appearance before the Committee in February 2024, David Vigneault added that, in addition to sharing intelligence with law enforcement, CSIS worked closely with partners in the RCMP and CBSA, and that, depending on the situation, all three agencies took “specific operational measures” to respond to the situation.[171]

Marie-Hélène Chayer, Executive Director of ITAC, described her agency’s role in assessing the likelihood of a terrorism attack happening in Canada and overseas.^[172] Finally, Jody Thomas testified that her role as National Security and Intelligence Advisor comprised providing coordinated, non-partisan advice to the Prime Minister, “coordinating the national security and intelligence community and providing a challenge function.”^[173]

Barry MacKillop, Deputy Director of Intelligence at FINTRAC, explained that his agency was responsible for generating “actionable financial intelligence for Canada’s police, law enforcement and national security agencies.”^[174] Barry MacKillop added that the Regulations and the Order did not change FINTRAC’s role with respect to its usual mandate and that they did not grant FINTRAC “any extended powers or enhanced authorities from a financial intelligence perspective.”^[175]

With respect to the role of FINTRAC, in addition to the added utility applicable across all law enforcement, including beyond the application of the Emergencies Act, the Committee recommends:

Recommendation 13

That the federal government review the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to determine if the Financial Transactions and Reports Analysis Centre of Canada should be given any additional powers when there are “threats to the security of Canada” as defined by the Canadian Security Intelligence Service Act.

Some witnesses also referred to the joint intelligence group, which was established to share intelligence information throughout the “Freedom Convoy.” David Vigneault described how the joint intelligence group provided a forum for intelligence-sharing with law enforcement partners and to provide advice to the government on national security threats, while Brenda Lucki also referred to the joint intelligence group, stating that information was funnelled through it during the “Freedom Convoy.”^[176]

One of the national security threats that was most often invoked by witnesses was IMVE. As Peter Sloly explained, the “Freedom Convoy” began as an anti-vaccine demonstration “and was co-opted by different ideologically radicalized individuals and insurgency movements.”^[177] However, as Rob Stewart told the Committee, CSIS did not actually identify any specific IMVE threats, but the federal government was aware of the presence of extremists who were attempting to link their cause to the “Freedom Convoy.”^[178] Brenda Lucki further confirmed that ideologically motivated extremists were likely present at the protests in Ottawa and were attempting to use the protest to promote their own ideological goals.^[179]

Some witnesses discussed the role of social media and the Internet in disseminating IMVE and motivating individuals to act. Marie-Hélène Chayer explained that since the beginning of the COVID-19 pandemic, there has been an increase in the amount of IMVE rhetoric online and on social media.^[180] David Vigneault further explained that violent extremists have used protests and demonstrations in the past to engage in violence, recruit members and spread their ideology.^[181] Jody Thomas also described the unprecedented number of serious and credible online threats against politicians and public officials of all three levels of government since the 2021 federal election.^[182]

In a second appearance before the Committee in February 2024, David Vigneault added that the events of February 2022 are one example of how the threat facing Canada has become “more complex and more pervasive”[183] and that “violent extremism in our country, motivated both by ideology and by religious motives,”[184] has increased in the last two years following the declaration of a public order emergency.

Former Minister Blair described another type of threat to national security – threats against critical infrastructure – in terms of the disruption to manufacturing and transportation caused by the “Freedom Convoy,” and he explained how the disruptions to the points of entry constituted a “very significant threat to national security” because of the impact to critical infrastructure.^[185] However, Leah West, Assistant Professor at the Norman Paterson School of International Affairs at Carleton University, added that the current definition of a “public order emergency” in the Emergencies Act does not contemplate emergencies as a result of threats to critical infrastructure.^[186]

Chapter 7: Invocation of the Emergencies Act

Section 16 of the Emergencies Act, which defines a “public order emergency,” provides for two main branches for determining whether the applicable legal threshold has been met for the invocation of a public order emergency. A “public order emergency” is defined as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” [Emphasis added]^[187] The first branch is that the public order emergency must arise from “threats to the security of Canada” as defined in section 2 of the Canadian Security Intelligence Service Act (CSIS Act).^[188] The second branch is that there must be a “national emergency” within the meaning of section 3 of the Emergencies Act.

Section 2 of the CSIS Act defines a “threat to the security of Canada” as follows:

(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).

A “national emergency” is defined in section 3 of the Emergencies Act as:

an urgent and critical situation of a temporary nature that

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.

It is important to note that the Emergencies Act specifies that the Governor in Council must believe “on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.”^[189] As such, certainty that a public order emergency exists is not necessary under the Emergencies Act.

Volume 3 of the Commission’s report describes the “reasonable grounds to believe” standard and explains that:

Provided that the necessary factual basis exists, the “reasonable grounds to believe” standard builds in the concept of a margin of appreciation. Reasonable minds may differ on the same question, and a decision is not wrong or unreasonable because an outcome thought likely to happen does not materialize.^[190]

The Commission’s report further elaborates that:

To return once again to the theoretical principles underlying emergency powers, the threshold for invocation is the point at which order breaks down and freedom cannot be secured or is seriously threatened. In my view, that threshold was reached here.

I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming and I acknowledge that there is significant strength to the arguments against reaching it. It may well be that serious violence might have been avoided, even without the declaration of emergency. That it might have been avoided does not, however, make the decision wrong. There was an objective basis for Cabinet’s belief, based on compelling and credible information. That was what was required. The standard of reasonable grounds to believe does not require certainty. [Author’s emphasis]^[191]

The public statement (delivered orally) on 17 February 2023 by Commissioner Paul S. Rouleau also addresses the importance of the standard of reasonable grounds in his findings:

After careful reflection, I have concluded that the very high threshold required for the invocation of the Act was met.

Specifically, for reasons that I present in detail in the report, I found that when the decision was made to invoke the Act on 14 February 2022, Cabinet had reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.

I did not come easily to this conclusion, because to me the underlying facts are not obvious. Thus, reasonable and informed people might come to a different conclusion from mine. I therefore reluctantly come to this conclusion. The government should normally be able to respond to emergencies without resorting to exceptional powers. [Author’s emphasis]^[192]

According to Ryan Alford’s brief to the Committee:

The evidence that demonstrated that the crisis did not satisfy either of these statutory and constitutional thresholds is extensive. That said, owing to the deferential standard the inquiry must apply, it is possible that the Final Report of the Rouleau Commission may conclude that it is impossible to determine with the requisite certainty whether the Government had a reasonable basis to conclude that a public order emergency existed. [Author’s emphasis]^[193]

Leah West also testified that:

I think the Emergencies Act has incredible amounts of discretion for the executive, and that would be how anyone would interpret it: whether or not they had reasonable grounds to believe a threat to the security of Canada existed and then whether it was necessary. They have incredible amounts of discretion there, but when Parliament has chosen to be very narrow—in this case, in its use and the definition of threats to the security of Canada—it's important that be respected because it was a deliberate choice, and the rule of law is the backbone of what makes us a liberal democracy that thrives on the rule of law. [Author’s emphasis]^[194]

In response to Leah West, Kent Roach added that:

I agree with Professor West that you need to have paragraph 2(c), plus section 3, but then subsection 17(1) says, “When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures”. It seems to me that the issue for cabinet, and the issue that may be explored in that legal opinion, is whether they have reasonable grounds to believe that a public order emergency exists. [Author’s emphasis]^[195]

This was also discussed before the Commission by Professor Robert Diab of the Thompson Rivers University Faculty of Law and Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General of Canada, as well as former Deputy Minister of Health and Foreign Affairs. Robert Diab told the Commission:

So the way it works right now in the Emergencies Act is that the decision maker is the federal government. It must decide whether it thinks the standard is met, and then the Commission is the after-the-fact referee.

But I think if we had ordinary legislation, maybe the model would be something like a warrant, where you have an independent decision maker. [Author’s emphasis]^[196]

Morris Rosenberg also told the Commission:

The government's required to believe on reasonable grounds that a public order emergency exists and necessitates the taking of special temporary measures for dealing with it. That judgment is subject to judicial review by the courts and subject to review by Parliament and by the inquiry that's established after the emergency is over. All three of those accountability mechanisms should require the government to clearly explain whether were other laws that, on their face, could have been used and why they were rejected. [Author’s emphasis]^[197]

The question of whether the legal threshold for invoking the Emergencies Act was met was discussed at length not only at the Committee, but also at the Commission. At the Commission, David Vigneault testified that CSIS did not consider the protests against the public health measures and the activities undertaken by protesters as a threat to the security of Canada, and they were not investigated by CSIS as such.^[198] However, the protests were considered to be an activity with the potential to become a threat.^[199]

In response, Prime Minister Justin Trudeau explained to the Commission that, for the purposes of the Emergencies Act, Cabinet, not CSIS, was responsible for determining whether there was a threat to the security of Canada as defined by the CSIS Act.^[200] In making that determination, the prime minister told the Commission that Cabinet considered more than just the “inputs” provided by CSIS. Rather, inputs from the RCMP; Transport Canada; Immigration, Refugees and Citizenship Canada; the Clerk of the Privy Council; the National Security and Intelligence Advisor and the “whole of government” were considered when the federal government invoked the Emergencies Act in February 2022.^[201]

Along the same vein, Jody Thomas told the Commission that, in her view, the Emergencies Act allowed for Cabinet to consider more than just the intelligence collected by CSIS in making its decision to invoke the Emergencies Act.^[202]

Justification

Some witnesses before the Committee cited the public safety concerns as justification for Cabinet’s decision to invoke the Emergencies Act. For instance, former Minister Mendicino told the Committee that the federal government received advice “that law enforcement needed the Emergencies Act to be sure that they could resolve, for example, ambiguities around those who were staying close to ports of entry.”^[203] He reiterated that “we invoked the Act because it was the advice of non-partisan professional law enforcement that existing authorities were ineffective at the time to restore public safety.”^[204] Former Minister Blair similarly testified that law enforcement required additional authorities.^[205] Jody Thomas specifically cited concerns about weapons and IMVE as justification for Cabinet’s decision to invoke the Emergencies Act.^[206]

Economic concerns were also cited by some witnesses as justification.^[207] Jody Thomas shared that she recommended that Cabinet invoke the Emergencies Act because of the “totality of the events across the country,” including the economic impact and “the inability of Canadians to live their lives.”^[208] The Honourable Chrystia Freeland, Minister of Finance, stressed the need to address the reputational harm that Canada was suffering in its trade relationships with other countries, particularly the United States.^[209]

Finally, some witnesses cited the national nature of the situation as justification for the invocation of the Emergencies Act. The Honourable David Lametti, former Minister of Justice and Attorney General of Canada, for his part, told the Committee that “[w]e invoked the Emergencies Act when it became clear to us that, first of all, the situation was national in scope.”^[210] Jody Thomas also cited the “national nature” of the blockades and protests.^[211] Appearing before the Committee in February 2024, Minister LeBlanc said that, at the time of the events, there was an “increased risk of a contagion or a spread” of blockages with economic impacts.^[212]

Two years after the declaration of emergency, the federal government reiterated its position on the exceptional and unprecedented nature of the circumstances that led to invoking the Emergencies Act, arguing that the government’s action was reasonable, necessary and based on the information it had at the time of the events.^[213]

In the Commission’s final report, Commissioner Paul S. Rouleau reluctantly concluded that the very high threshold for invoking the Emergencies Act had been met:

I have concluded that in this case, the very high threshold for invocation was met. I have done so with reluctance. The state should generally be able to respond to circumstances of urgency without the use of emergency powers. It is only in rare instances, when the state cannot otherwise fulfill its fundamental obligation to ensure the safety and security of people and property, that resort to emergency measures will be found to be appropriate. As for the measures Cabinet put in place in response to the emergency, I conclude that while most of the measures were appropriate and effective, others fell short.^[214]

However, in a Federal Court decision of 23 January 2024, Justice Richard G. Mosley concluded that “there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires.”^[215] His reasons included that the crisis did not extend to the whole of Canada^[216] and that other laws of Canada could have dealt with the situation.^[217]

In this case, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, along with a group of plaintiffs who participated in the protests, filed an application for judicial review in the Federal Court of the federal government’s decision to declare a public order emergency under the Emergencies Act in February 2022.

On 22 February 2024, the case was appealed by the federal government to the Federal Court of Appeal. The litigation is ongoing.^[218]

Legal Threshold

On the “threats to the security of Canada” branch of the section 16 definition of a public order emergency, the federal government identified that paragraph 2(c) of the definition in the CSIS Act (threats of violence to persons or property) was engaged when the declaration of emergency was made in February 2022.^[219] The meaning and application of that definition was discussed at Committee, with former Minister Lametti testifying that the economic damage experienced as a result of the “Freedom Convoy” was considered “threats of violence to property.”^[220] François Daigle, Deputy Minister of Justice and Deputy Attorney General of Canada, further specified that, under section 2 of the CSIS Act, only one of the paragraphs of the section 2 definition had to be met by the federal government, not all of them.^[221]

Regarding paragraph 2(c) of the CSIS Act, Leah West emphasized the necessity of a causal connection between the threat to the security of Canada and the emergency, meaning that the threat must drive the emergency, rather than simply co-exist alongside it.^[222]

She also mentioned that the definition of a “public order emergency” in the Emergencies Act could be amended to include threats to critical infrastructure to more accurately reflect the nature of the emergency that took place in February 2022.^[223]

Despite David Vigneault’s testimony at the Commission that CSIS did not consider there to be a threat to national security under the CSIS Act, many witnesses at the Committee characterized elements of the “Freedom Convoy” or the “Freedom Convoy” itself as a threat to national security. Former Minister Lametti described the protests and blockades as “a threat to Canada’s security,”^[224] while former Minister Blair said that the blockades at several points of entry “elevated this to a very significant threat to national security.”^[225] Jody Thomas also told the Committee that the “Freedom Convoy” posed a national security threat, and the federal government took “a broad look” in assessing whether there was a national security threat.^[226]

Furthermore, both Brenda Lucki and Thomas Carrique agreed that certain individuals within the “Freedom Convoy” posed potential threats to national security.^[227]

Some witnesses responded to the reasoning given at the Commission as to whether there was a threat to national security under the CSIS Act. Leah West discussed the prime minister’s statements on paragraph 2(c) at the Commission in comparison to those of CSIS indicating that the legal threshold at paragraph 2(c) was not met.^[228] She explained that the prime minister “took into account different considerations than CSIS did when making the determination […] and [the prime minister] also viewed paragraph 2(c) to be more broad.”^[229] Jody Thomas also explained that there is not one person who can determine whether a national security threat exists, and it was not for the CSIS director to decide.^[230]

The Commission’s final report recommended that that “the incorporation by reference into the Emergencies Act of the definition of ‘threats to the security of Canada’ from the CSIS Act should be removed.”^[231] In its response to the recommendations, the federal government said that it would “carefully consider” this issue in the context of the ongoing litigation, along with other factors, to decide whether any such amendments to the CSIS Act are necessary.^[232]

In regard to the concept of “threats to the security of Canada,” the Committee recommends:

Recommendation 14

That the federal government review the Canadian Security Intelligence Service Act to ensure that the definition of “threats to the security of Canada” and the Canadian Security Intelligence Service’s operational mandate are adequate and consistent with the Emergencies Act.

Recommendation 15

That the federal government remove the incorporation by reference into the Emergencies Act of the definition of “threats to the security of Canada” from the Canadian Security Intelligence Service Act.

On the section 3 “national emergency” test, François Daigle stated that either paragraph 3(a) or (b) of the Emergencies Act could have been engaged in this situation, but the government opted for paragraph 3(a) (serious danger to lives, health or safety of Canadians beyond the capacity of provinces).^[233] However, former Minister Lametti explained that paragraph 3(a) of the Emergencies Act was engaged in this particular case:

Because [the emergency] seriously endangered Canadians and the safety and security of Canadians, and it exceeded the capacity of other authorities of the provinces, in particular, to take care of it.^[234]

Some witnesses clarified various aspects of the last part of the section 3 definition of a national emergency (“that cannot be effectively dealt with under any other law of Canada”). François Daigle explained that the legal test under section 3 refers to whether other laws were effective at dealing with the emergency, rather than whether they existed, and in this particular case, the federal government determined that they were not effective.^[235]

On the “national emergency” test, the Committee recommends:

Recommendation 16

That the federal government assess the role that economic factors may play in determining the existence of a “national emergency” and amend the Emergencies Act accordingly.

Chapter 8: Special Temporary Measures

The Committee heard extensive evidence on the scope and justification for the special temporary measures made by the federal government to end the illegal protests and blockades, including their funding.^[236] These are the Regulations and the Order, as mentioned earlier.

These temporary measures ended on 23 February 2022 when the declaration of a public order emergency under the Emergencies Act was revoked.

Emergency Measures Regulations

The Regulations set out various types of prohibitions:

• prohibition from participating in a public assembly “that may reasonably be expected to lead to a breach of the peace,”^[237] otherwise referred to as “prohibited assemblies”;
• prohibition from entering Canada from abroad in order to participate in a prohibited assembly;^[238]
• prohibition from travelling “to or within an area” where an assembly is taking place and from bringing a minor;^[239] and
• prohibition from providing material assistance to the participants of a prohibited assembly.^[240]

It was clear from the evidence received by the Committee that the purpose of this special temporary measure was to address the challenges that police services experienced in keeping the peace and to give the federal government additional tools to put an end to the protests and prevent new ones from taking place.^[241]

During the meetings, some witnesses went into more detail on the effect and scope of the measures set out in the Regulations.^[242] Brenda Lucki told the Committee that “[t]he [Emergency Measures Regulations] supplemented existing authorities and provided new instruments for law enforcement to address these illegal blockades.”^[243] François Daigle said the following:

Each of the prohibitions listed in sections 2 to 5 of the Regulations addressed behaviours observed during the unlawful blockades and the occupation of Ottawa streets. The key prohibition is set out in subsection 2(1), which supplements the powers to maintain the peace that police have at common law by prohibiting certain public assemblies.^[244]

Several witnesses said it was necessary to prohibit supplying protesters, particularly with fuel and food.^[245]

Others said that it was important to protect critical infrastructure and to prohibit bringing minors to the protest areas.^[246]

Several witnesses deemed it necessary and useful to establish an exclusion zone.^[247] For Steve Bell, this was “the most important power conferred under the [Emergencies Act],” making it possible “to stop movement into the downtown core and create a more stabilized environment in advance of the operation that successfully and safely cleared the core and restored order in [Ottawa].”^[248]

As discussed in Chapter 5: Police Response to the “Freedom Convoy”, Challenges Faced by Police of this report, various witnesses addressed the practical difficulties of obtaining the services of towing companies to remove the heavy vehicles belonging to the protesters and forming the blockades.^[249]

Some witnesses said that tow truck drivers were hesitant or simply refused to tow away trucks from the protest areas, whether because they feared for their safety and that of their equipment, or because of the intimidation, harassment and death threats they received from protesters.^[250]

On this point, Peter Sloly told the Committee that “[b]y default, it would be the ability of police to predictably obtain sufficient tow resources.”^[251]

Furthermore, some witnesses said that the Criminal Code, provincial laws and municipal bylaws would not have achieved the same objectives as the Regulations in a timely or safe manner.^[252]

During his appearance, the Honourable Perrin Beatty said the following:

To give one example, my understanding is that in jurisdictions other than Ontario, their emergencies legislation gives the power to authorities to be able to press companies into providing services during a crisis. Ontario’s legislation did not. It did not allow them to require tow truck drivers to do it. My argument would be that this should be dealt with at the level of the Ontario legislation, and if that power is needed, give it there.^[253]

In contrast, Thomas Carrique said that in an effort to procure tow trucks, “a request to the province for indemnification through a procurement process … in an emergency” was underway when the Emergencies Act was invoked.^[254]

Some witnesses commented on the usefulness and efficiency of the authority built into the Regulations, removing the requirement that RCMP officers and out-of-province police officers be sworn in, allowing them to be operational in a timely manner.^[255]

Steve Bell said that “[g]iven the large number of external police officers who assisted [the OPS’s] operations, removing the process of swearing them in freed up precious time and resources.”^[256]

Peter Sloly pointed out that “[t]he facilitation, particularly, of the swearing-in of special constable status across the country to allow the airlift of officers arriving from literally every province into the city was massively important.”^[257]

However, the Honourable Perrin Beatty told the Committee that:

[I]f the argument is made that it would have taken too much time to swear in police officers in Ottawa who were coming in from other jurisdictions and that’s an issue, amend whatever other statute is necessary to deal with that. Don’t require the government to invoke the federal emergencies legislation to deal with that sort of situation.^[258]

Emergency Economic Measures Order

The Order provided for two main financial measures:^[259]

• freezing of assets;^[260] and
• new requirements for crowdfunding platforms and payment services providers to report to FINTRAC.^[261]

According to Isabelle Jacques, Assistant Deputy Minister of the Financial Sector Policy Branch, Department of Finance, the purpose of the temporary financial measures was twofold:^[262] “to stop the funding of illegal activities, or certainly curtail it,” that being the main goal, and “to dissuade people from participating in illegal activities on the Hill.”^[263]

Regarding the second purpose, the Committee heard extensively from witnesses that these measures had a significant deterrent effect on the protesters, causing them to leave the prohibited public assemblies once the measures came into effect.^[264]

In contrast, Professor Nomi Claire Lazar wrote in her brief to the Committee that in her opinion, the federal government did not adequately justify why the Order was necessary:

But claims of necessity often leave reasoning implicit: we can vaguely see the connection between means and end, but Government leaves the middle steps opaque. This was arguably the case, for instance, with the Emergency Economic Measures Order in the February 2022 emergency when they first came down. The order stated the measures were necessary to resolve the emergency, but did not state why. Nor was it obvious what specific purpose they served in ending the emergency: was it ‘necessary’ to discourage participation, in order to thin the crowd, in order to lower the chance of violence and harm? Or was it ‘necessary’ to limit funding for leaders, and with what specific end in view? The Government’s description of the measures did not make the necessity links clear. The strength of each link must be tested, and that requires we see the links. Might an amendment to S. 61(1) that required a clearer explanation of the necessary connection between measures and ends be worth considering?^[265]

In his appearance in February 2024, the Honourable Arif Virani, Minister of Justice and Attorney General of Canada, said that the financial measures enacted in the Order were intended to destabilize the illegal blockade by cutting off protesters’ finances, which could come from foreign and bitcoin sources.^[266]

Scope of the Financial Measures

Once the Order was made, it culminated in the freezing of approximately 280 financial products, including bank accounts, credit cards and lines of credit, representing a total of $8 million, of which $3.8 million was from one payment processor.^[267] The RCMP reported that 257 financial products had been frozen, and that 57 entities had been disclosed to financial institutions.^[268] During her appearance, Brenda Lucki said that “170 Bitcoin wallet addresses […] were shared with the virtual asset service providers.”^[269]

Angelina Mason, General Counsel and Vice-President, Legal with the Canadian Bankers Association, said that approximately 180 accounts were frozen by banks, with a total value of $8.3 million. For the most part, these tended to be larger accounts.^[270] In addition, Michael Hatch, Vice-President, Government Relations with the Canadian Credit Union Association, said that fewer than 10 accounts from credit unions were seized, with a total value of less than half a million dollars, the largest of which was a mortgage account of approximately $200,000.^[271]

Accounts were unfrozen as of 21 February 2022, and all accounts were available to the account holders no later than 24 February 2022.^[272] The Order had no retroactive effect.^[273]

As for the decision to proceed with an emergency order instead of separate court orders to freeze the accounts of individuals who were participating in illegal activities, the federal government said that it wanted to act quickly, as it could have taken days to bring forward court orders.^[274] Some witnesses said they had to act on short notice, under the circumstances, either in the decision-making process or in applying the Act and the emergency special measures.^[275] Isabelle Jacques told the Committee that no written economic impact assessments were prepared by the Department of Finance before the Emergencies Act and related financial measures were invoked.^[276]

Some witnesses said that no money laundering or funding of terrorism or IMVE was reported that justified the making of the Order.^[277] Barry MacKillop of FINTRAC added that in the context of the convoy, “[i]t wasn’t that the event was funded in view of supporting [IMVE] activities.”^[278]

Lastly, some witnesses confirmed that neither the RCMP nor the OPP had laid any criminal charges in relation to a contravention of the Regulations or the Order following the events of February 2022.^[279]

Role of Financial Institutions

Some witnesses mentioned the expanded role of financial institutions in selecting accounts or other financial products that would be frozen, regarding designated persons. [Emphasis added]^[280]

Several witnesses said that the RCMP sent a list of names directly to the institutions involved, who then made a decision about whether to cease dealings with individuals on the list.^[281] It was confirmed before the Committee that financial institutions were not subject to penalties if they chose not to follow the list, and they were also granted immunity from prosecution under section 7 of the Order.^[282]

Brenda Lucki specified that the RCMP worked closely with financial institutions to develop a streamlined process to share information on an ongoing basis about the freezing or unfreezing of financial products for the individuals involved.^[283] In principle, all the information included in the files to identify the designated person, [Emphasis added] sometimes only a licence plate number, but excluding criminal records, were provided to the financial institutions.^[284]

It seems as though the list of designated persons [Emphasis added] referred to in the evidence was not the same as the list of donors that was referred to in the RCMP statement of 21 February 2022: “[a]t no time, did we provide a list of donors to financial institutions.”^[285]

On that point, witnesses appearing before the Committee confirmed that donors’ names were never provided to financial institutions.^[286] Small donors or buyers who supported the protesters did not have their accounts frozen,^[287] unless they were within the prohibited area.^[288] Furthermore, the vast majority of account holders were not affected by these temporary financial measures.^[289] Some witnesses said that the allegations of people having their accounts frozen for making a $25 donation were “perhaps, a little bit of hyperbole.”^[290]

When the Order came into force, financial institutions sent activity reports to the Department of Finance outlining the number of accounts that had been frozen and the total value, without giving details about the account holders.^[291] Four or five accounts that were not on the RCMP lists were frozen by the banks in question.^[292]

Some witnesses added that no bank accounts were frozen directly by the federal government and that the RCMP had acted independently in providing its list to the financial institutions.^[293] Barry MacKillop said that FINTRAC did not have the authority or the power to freeze bank accounts.^[294]

Accounts were unfrozen as soon as the RCMP informed the financial institutions that the names on the list were no longer in contravention of the Regulations or, in one case, when an individual was able to show their financial institution that they were no longer in Ottawa and participating in the prohibited activities.^[295] However, some accounts may have remained frozen due to a court order.^[296]

It appears as though there was a contradiction in the testimony about the discretionary power granted to financial institutions. According to some witnesses, they acted independently in deciding which accounts would be frozen, without any political direction from the government.^[297] However, Angelina Mason said that financial institutions did not have any discretion in following the list provided by the RCMP.^[298] Michael Hatch said that there was a discretionary opportunity under the Order, in relation to the freezing of accounts that were not on the list provided by the RCMP.^[299]

These representatives of financial institutions also said that they were not given adequate guidance on freezing accounts.^[300] However, they had the opportunity to ask the federal government questions about compliance, including scope, application of the temporary emergency measures and the definition of designated person participating in prohibited activities.^[301] During his appearance, Rob Stewart admitted that there were “some challenges along the lines of implementation of the economic measures” that resulted in misunderstandings as to their scope or application.^[302]

Furthermore, Michael Hatch said that credit unions were not treated the same as the six big banks, which the federal government had consulted and informed several days earlier.^[303]

The implementation of the financial measures in question also raised privacy concerns. During her appearance, Isabelle Jacques stated that there were no consultations with the Privacy Commissioner.^[304] However, she said that the Department of Finance was not privy to any specific information, only “aggregate amounts.”^[305]

Regarding personal information on the confidential list sent by the RCMP to financial institutions, Angelina Mason said that “privacy law kicks into effect, which requires that you only hold information as necessary and for the purpose for which it was collected.”^[306]

The Committee also received a brief from the Privacy Commissioner of Canada, who expanded on the potential privacy implications of invoking the Emergencies Act:

[P]rivacy is fundamental, and ensuring that it is protected builds necessary trust and supports the achievement of important public interest goals. In the context of any emergency, it is important for a clear privacy governance framework to be developed and implemented to ensure that government institutions and private sector entities can effectively meet their obligations under both the Privacy Act and [Personal Information Protection and Electronic Documents Act].^[307]

The Committee notes that the financial measures set out in the Order, including the freezing of assets by the financial institutions involved, resulted in many questions and concerns as to their scope and implementation. As such, the Committee recommends:

Recommendation 17

That the federal government, in collaboration with the Canadian Bankers Association, the Canadian Credit Union Association and the Financial Transactions and Report Analysis Centre of Canada, develop standardized processes regarding freezing and unfreezing accounts in the case that the Emergencies Act is invoked.

Crowdfunding Platforms

Many witnesses commented on the role of crowdfunding platforms in funding the “Freedom Convoy.”^[308]

Kim Wilford, General Counsel for the GoFundMe platform, informed the Committee that just over $10 million was raised on this platform before it was shut down on 2 February 2022, of which 88% was from Canada. Approximately 133,000 donors were from Canada, 14,000 were from the United States, and 4,000 were from other countries, representing 3%.^[309]

Jacob Wells, Co-Founder of the GiveSendGo platform, said that the amount collected on that platform was approximately $13 million, and around $600,000 was given in tips. The average donation was approximately $100, and the average tip was $5.^[310]

Kim Wilford and Jacob Wells said they did not receive any donations from China^[311] or Russia.^[312] Certain witnesses said there was no proof supporting the claim that funds raised were the proceeds of crime.^[313]

The Committee heard that funds raised on the GoFundMe platform had been returned to donors as of 5 February 2022, including the transaction processing fees and tips. Donors could also opt to redirect their funds to credible and established charities.^[314] As for the platform GiveSendGo, Jacob Wells said that the vast majority of donations had been refunded by mid‑March 2022.^[315]

While Kim Wilford said that the organization had worked closely with the City of Ottawa and its police service to understand what was happening on the ground in downtown Ottawa,^[316] Jacob Wells said that no police or federal or provincial government representative had contacted the organization about convoy funding.^[317]

On the subject of the legality of funding these protests using crowdfunding platforms, Kim Wilford explained that the GoFundMe campaign was suspended on 2 February 2022 and then removed on 4 February 2022, which was before the Emergencies Act was invoked. The organization said that it did so because its terms of service were no longer being complied with.^[318] Jacob Wells told the Committee about its internal verification team that does due diligence to ensure that the recipients of funds are legally able to receive them (e.g., verifying that an individual’s name is not on a list) or if the goals stated in the campaign are legal endeavours that comply with the laws of the country in question.^[319]

The issue of applying Canadian laws outside of Canada or its jurisdiction was also addressed by a number of witnesses.^[320]

When the Order was made, it introduced new obligations to report suspicious transactions to the FINTRAC for crowdfunding platforms and some payment service providers.^[321]

Despite the introduction of this new obligation, the registration process had not been completed by the time the special emergency measures were lifted.^[322] Kim Wilford said that GoFundMe had registered with FINTRAC following the coming into force of this requirement, in partnership with Stripe, the payment processor.^[323] Jacob Wells said that the organization was updating its platform and processes to include new regulations.^[324]

These new obligations were then included in regulatory changes that came into force on 27 April 2022.^[325] The events of February 2022 led to the modernization of federal regulations to reflect changes in the financial sector.^[326] Julien Brazeau, Director General of the Financial Crimes and Security Division, Financial Sector Policy Branch, Department of Finance, explained to the Committee:

Briefly, essentially the new regulations made permanent what was contained in the emergency measures, in terms of the obligations on crowdfunding platforms and payment service providers to register and to disclose suspicious transaction, and also put on them heightened responsibilities in terms of due diligence and verification of clients.^[327]

The Committee welcomes the new regulatory measures for crowdfunding platforms and some payment service providers. However, in light of the recent invocation of the Emergencies Act, the Committee recommends:

Recommendation 18

That the federal government review the financial measures of the Emergencies Act and the amendments made to the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations in April 2022 to determine their efficacy and if legislation to address any gaps in regard to regulations for crowdfunding platforms should be enacted.

Chapter 9: Charter Compliance

The preamble of the Emergencies Act provides that any special temporary measures made during a declaration of emergency be subject to the Canadian Charter of Rights and Freedoms (the Charter), as well as the Canadian Bill of Rights and the International Covenant on Civil and Political Rights. It also recognizes that fundamental rights “are not to be limited or abridged even in a national emergency.”

The Department of Justice Act further provides that the Minister of Justice must examine every regulation transmitted for registration to determine whether the provisions are consistent with the Charter.^[328] The Statutory Instruments Act also states that proposed regulations must be examined before being made for consistency with the Charter.^[329]

In May 2022, the Department of Justice published a “Charter backgrounder” in relation to the Regulations and Order made under the declaration of emergency of February 2022. That Charter backgrounder explains that both the Regulations and the Order were reviewed for consistency with the Charter and describes the potential effects of the special temporary measures on the rights and freedoms guaranteed by the Charter.^[330]

Although the Department of Justice Act requires the Minister of Justice to table a Charter statement for every government bill “that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the [Charter],” this requirement does not apply to a declaration of emergency or in respect of regulations or orders.^[331] As such, the Committee recommends:

Recommendation 19

That the federal government amend section 4.2 of the Department of Justice Act, concerning the requirements for the Minister of Justice to table a “Charter statement” on government legislation, so as to require such statements to be tabled with respect to any declaration of emergency and each regulation or order adopted in respect of a national emergency.

Some ministers and departmental officials agreed that the special temporary measures made under the Emergencies Act were consistent with the Charter.^[332] François Daigle also told the Committee that the special temporary measures were consistent with the Charter, and the declaration of emergency did not suspend the Charter.^[333] Former Minister Lametti also explained that the special temporary measures were screened for Charter compatibility.^[334] However, François Daigle specified that although the Department of Justice reviewed the special temporary measures for Charter compliance, the application of those measures by police services and other groups was not included in that assessment.^[335]

The proportional nature of the special temporary measures was emphasized by some government witnesses, as was the limited duration and targeted nature of the measures. François Daigle underlined that the measures were proportional several times during his appearance, stating that “the measures were targeted, proportional, time limited and Charter compliant.”^[336] Former Minister Lametti similarly stated that the special temporary measures were “necessary, reasonable and proportional to the situation.”^[337] For her part, Jody Thomas described the special temporary measures as “reasonable, proportionate and, thankfully, short‑lived.”^[338]

Several government witnesses addressed the tension between the special temporary measures and the rights to freedom of expression and peaceful assembly guaranteed in section 2 of the Charter. On this subject, former Minister Mendicino commented that:

[W]e must defend freedom of speech, assembly and lawful protest. However, freedom in a democracy never includes the freedom or licence to trample on the rights of others, or small business families hoping to put food on their families’ tables or parents attempting to walk their children to school. We should never ever encourage, countenance or be complicit in illegal behaviour, for it is an affront to the administration of justice and the rule of law.^[339]

Former Minister Lametti similarly testified that “[f]reedom of expression doesn’t trench upon the rights of other people” and that “[t]his was well beyond freedom of expression.”^[340] François Daigle also noted the Charter only protects peaceful assembly, and the special temporary measures did not prohibit any and all public assembly.^[341]

There was some discussion at Committee as to the legality of freezing bank accounts and other financial products under the Order, with regard to section 8 of the Charter. Isabelle Jacques told the Committee that “freezing” accounts did not meet the definition of “seizure” in section 8 of the Charter as there is no creditor involved.^[342] Instead, other witnesses explained that accounts were suspended or frozen,^[343] with François Daigle adding that it was not a seizure within the meaning of the Charter because there was “no transfer of ownership.^[344] On a related point, Kent Roach explained that financial institutions could be subject to Charter scrutiny for the exercise of their power to freeze bank accounts under the special temporary measures, even though those decisions were not made by the federal government.^[345]

Finally, some witnesses highlighted the possibility of legal challenges, particularly to seek a remedy under the Charter. For example, Kent Roach explained that “[a]nyone can say that things are Charter-proof” and that many aspects of the special temporary measures “could be Charter-suspect.”^[346] Specifically, he cast doubt on the Charter compliance of the measures to seize financial assets and the protest-related measures.^[347] In a similar vein, Leah West told the Committee that it was possible that individuals could claim that their Charter rights were unjustifiably infringed and seek a remedy from the courts, and those claims could be founded on a potential finding by the Commission, the Committee or the Federal Court that it was unjustifiable to invoke the Emergencies Act.^[348]

More recently, questions relating to Charter rights were addressed in a judicial review in the Federal Court.

In his decision of 23 January 2024,^[349] Justice Mosley considered whether the Regulations and Order issued under the Proclamation Declaring a Public Order Emergency violated sections 2(b), 2(c), 2(d), 7 or 8 of the Charter, and whether these violations could be saved under section 1.

He concluded that they violated section 2(b), which guarantees the right to freedom of expression, and section 8, which guarantees the right to be secure against unreasonable search and seizure.^[350] Moreover, he found that these impairments could not be justified under section 1 of the Charter.^[351] Sections 2(c), 2(d) and 7 of the Charter – which, respectively, guarantee the rights to peaceful assembly, association, and life, liberty and security of the person – were not found to have been impaired.^[352]

Chapter 10: Access to Information and Documents

This Committee is a special joint committee consisting of members from both houses of Parliament.

Under House of Commons Standing Order 108(1)(a), standing committees are empowered “to send for persons, papers and records.”^[353] Under Standing Order 116(1), in a special committee, “the Standing Orders shall apply so far as may be applicable.”^[354]

House of Commons Procedure and Practice explains in more detail the powers of parliamentary committees with respect to the conduct of hearings before it, including matters of procedure and privilege.^[355]

On the other hand, section 62 of the Emergencies Act, under which this Committee is constituted, is silent as to how it should carry out its parliamentary review and receive evidence and documents.

Over the course of this study, there were several occasions where witnesses refused or were unable to answer the Committee’s questions or submit documentation due to various types of privilege or confidence.

In a document prepared further to a motion of the Committee of 22 September 2022,^[356] the offices of the Committees and Legislative Services Directorate of the House of Commons, the Senate Committees, the Law Clerk and Parliamentary Counsel of the House of Commons and the Law Clerk and Parliamentary Counsel of the Senate wrote the following:

The preeminent right of committees to obtain answers to their questions stems from the Houses’ authority to institute and conduct inquiries and the power to send for persons, papers and records. These parliamentary privileges are rooted in the preamble and section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. These powers were delegated by both Houses to the Special Joint Committee on the Declaration of Emergency through the Houses’ orders establishing the Committee.

Given their constitutional nature, a committee’s powers supersede statutory law and other privileges, such as solicitor-client privilege.^[357]

The memo goes on to state the following:

House of Commons Procedure and Practice notes that particular attention is paid by committees to the questioning of public servants:

The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. The role of the public servant has traditionally been viewed in relation to the implementation and administration of government policy, rather than the determination of what that policy should be. Consequently, public servants have been excused from commenting on the policy decisions made by the government. In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which may involve the giving of a legal opinion, may be perceived as a conflict with the witness’s responsibility to the Minister, may be outside of their own area of responsibility, or may affect business transactions.

Although they can insist that a witness respond to specific questions, committees do not have the power to deal with a failure to comply with their orders. Only the Senate and the House of Commons have the disciplinary powers to punish refusal. The disciplinary powers of the Houses include, for example, the power to reprimand a person who is not a member.

During the Committee hearings, several ministers and federal officials claimed that the information or documents requested by the Committee were protected by privilege, including Cabinet confidence or solicitor-client privilege.^[358] For example, Former Minister Lametti invoked three types of privilege during his appearance before the Committee: Cabinet confidence, solicitor-client privilege and litigation privilege.^[359]

Most witnesses said that they were not able, not authorized or not consulted about the possibility of waiving the privilege that was invoked for the Committee’s review.^[360] According to François Daigle of the Department of Justice, the fact of receiving evidence in camera in no way makes it possible to waive solicitor-client privilege.^[361] Stephen Laskowski of the Canadian Trucking Alliance invoked the rule of relevance when various Committee members asked him questions.^[362]

The Committee also learned that an internal federal government legal opinion had been drafted to determine whether invoking the Emergencies Act was justified under the circumstances, but the Committee was unable to obtain a copy given that solicitor-client privilege was invoked. Leah West and Kent Roach said it would have been useful to read the legal opinion for a full legal analysis of the situation.^[363]

Kent Roach said that it was important for the Committee to be given access to information or documents, even if they were covered by solicitor-client privilege.^[364] In this sense, he suggested the following to the Committee:

I really think that you can only fully investigate this if you do so in a manner that is in camera, subject to national security confidentiality.

I would add that I think that, moving forward, you should consider that an inquiry would have powers to go behind solicitor-client privilege. [National Security and Intelligence Review Agency], for example, has those powers.^[365]

In their brief to the Committee, the Canadian Civil Liberties Association pointed out the following:

Several witnesses before the Commission stated that the Department of Justice had provided a legal opinion that suggested that “threats to the security of Canada” in the [Emergencies Act] did not have the same meaning as the term in the CSIS Act, despite the CSIS definition’s direct incorporation into the [Emergencies Act]. The government of Canada has claimed solicitor-client privilege over this opinion.

The [Canadian Civil Liberties Association] acknowledges the fundamental importance of solicitor-client privilege. However, to the extent that the government relies on this legal advice to support the argument that it acted in good faith and on a good faith basis that the threshold for declaring a public order emergency was met, it can only do so by disclosing the opinion.^[366]

The possibility of a formal or implied waiver was also discussed in Committee. Jody Thomas said that the client who could waive it was the Governor in Council.^[367] According to Leah West, the client was Cabinet or the prime minister.^[368]

Following her appearance before the Committee, Jody Thomas wrote the Committee a letter maintaining the refusal to divulge the information requested about this legal opinion because of solicitor-client privilege:

With regard to the federal government's legal opinion on the interpretation of the necessary legal thresholds to declare a public order emergency:

(a) on what date was the opinion requested;

(b) on what date was the written opinion prepared;

(c) who requested the preparation of the opinion;

(d) who wrote the opinion;

(e) who approved the opinion; and

(f) were the conclusions changed in the course of the approvals process?

Due to Solicitor Client Privilege, I respectfully decline to answer this question.^[369]

It is worth noting that on 31 May 2022, the Committee adopted a motion “[t]hat an Order do issue for all security assessments and legal opinions which the government relied upon in determining that” the various thresholds under the Emergencies Act had been met and that the temporary measures exercised under the Act were consistent with the Charter.^[370]

On or around 29 June 2022, a letter in response to the Committee’s document production order was sent by François Daigle of the Department of Justice, in which he writes that “[u]pon full consideration, it is our Department’s determination that all legal opinions in our holdings that would be responsive to the Committee’s order are subject to solicitor-client privilege.”^[371] In his letter, he also states the following:

Although other countries may have occasionally departed from this rule, in Canada, it is solely within the discretion of the Government of Canada and its ministers to waive solicitor-client privilege in respect of legal advice provided to the Crown. For reasons of principle and practice, this rarely occurs and the general rule remains that such advice will normally be withheld from committees of Parliament, subject to such ministerial discretion and considerations of public policy.^[372]

It is worth mentioning that this letter sets out the grounds for refusal only as they pertain to information protected by solicitor-client privilege, but not by Cabinet confidence.

However, the Department of Justice did share some documents with the Committee to explain the legal context for invoking the Emergencies Act.^[373] Other federal government departments and agencies also submitted documents to the Committee in response to the order, some of which were redacted.^[374]

In response to another Committee motion, adopted on 20 October 2022, the departments, persons and agencies that produced documents in response to the production order of 31 May 2022 were required to explain in writing the grounds for each redaction.^[375]

Some information remains inaccessible to the Committee due to various privileges or for reasons of public interest, international relations or national security.^[376]

For example, in a letter sent to the Committee on or around 4 November 2022, the Deputy Minister of the Department of Transport, Michael Keenan, responded to this order as follows:

Text on pages 3-4 of the document were redacted on the grounds that they contain information that is Solicitor-Client Privilege. As set out in the letter dated June 29, 2022, from François Daigle, Deputy Minister of Justice and Deputy Attorney General of Canada, legal advice to the Crown which is protected by solicitor-client privilege is normally withheld and not disclosed to committees of Parliament. These redactions have been applied consistently in the production of documents for the Public Order Emergency Commission.^[377]

Nevertheless, there has been some disclosure of protected information on an exceptional basis as the result of Commission or civil proceedings where redactions were removed.^[378]

It is worth noting that, like the Committee, the Commission also encountered challenges gathering evidence given the various types of privilege invoked.

In his brief to the Committee, Professor Ryan Alford writes the following:

The Government withheld the evidence the public inquiry required to determine whether the Cabinet lacked a reasonable basis for concluding an emergency existed, by asserting solicitor-client privilege in a manner that frustrated the purpose of that inquiry and s. 63 of the Act. …

Lamentably, the public inquiry witnessed the Minister of Justice asserting solicitor-client privilege over any legal advice given by his department to the Cabinet that provided it with a more pliable and amenable “evolving” definition of a public order emergency than the one established by Parliament in the Act. Additionally, the Minister of Justice would not comment on the testimony from the National Security Advisor and the Deputy Clerk of the Privy Council that the statutory standard had been updated or interpreted in an evolved or holistic manner. In particular, he declined to answer questions about whether fresh legal advice that applied a novel standard was the reason why the Director of the Canadian Security Intelligence Service (“CSIS”) changed his mind about whether the crisis met the legal standard on the very day that the declaration of the emergency was issued. …

The impasse created by the assertion of solicitor-client privilege by the Government over the central issue of the public inquiry was best summarized by Commissioner Paul Rouleau in his last exchange with the Minister of Justice:

Commissioner Paul Rouleau: I may get into trouble [i.e., by asking questions that impinge on solicitor-client privilege] here, so – but it’s – your counsel can weigh in if need be. But I’m just trying to understand, the job that the Commission is to do is to look at the decision by Cabinet, and as was mentioned by Commission Counsel, there’s an issue of the reasonableness of it. And I’m having a little trouble, and I don’t know if you can help me, is how we assess reasonableness when we don’t know what they were acting on. And do so just presume they were acting in good faith without knowing the basis or structure within which they made that decision? And you know of what I speak …what was the belief of those who made the decision as to what the law was? And I guess the answer is we just assume they acted in good faith in application of whatever they were told. Is that sort of what you’re saying?

[Former] Minister David Lametti: I think that’s fair.

This dialogue, the pivotal moment of the hearings at the public inquiry, is troubling. It confirms that due to the Government’s decision to create a situation where the Commissioner “might get into trouble” owing to solicitor-client privilege, it argues we must “just assume they acted in good faith.”^[379]

Ryan Alford concludes his brief as follows:

Governmental accountability is the raison d'être of both the parliamentary and public inquiries into a declaration of emergency. The Commission has noted that “The starting point for the Commission is to inquire into the reasons why the Government declared a public order emergency. It is the Government that deemed it necessary to invoke the Emergencies Act; thus it is the Government that must explain its decision to do so.” As the principal author of the Act has emphasized, “wherever you have extraordinary powers, there must be extraordinary accountability.”^[380]

In a document produced before the Commission, the Canadian Constitution Foundation agreed:

Section 58(1) of the Emergencies Act already requires that the federal government table an Explanation of the reasons for the declaration of emergency in Parliament. The Explanation for the February public emergency provides a one sentence explanation for why existing legal tools allegedly fell short. The Act should be amended to require the Attorney General to release a legal opinion that provides a detailed analysis of existing legal tools and makes the case for why they fell short.

… The Act’s requirement that it be a tool of last resort needs to be given teeth and the government seeking to invoke it must complete the exercise of comprehensively reviewing all legal tools available to it to deal with the emergency as well as explain why these tools are insufficient.^[381]

Regarding cabinet confidence, a press release on the Commission’s website states the following:

The Government of Canada has responded to a request from Commissioner Paul Rouleau and agreed not to claim Cabinet privilege over the documents that Cabinet considered in making the decision to declare a public order emergency and implement special measures for dealing with the emergency in February 2022.^[382]

During his appearance before the Commission, Prime Minister Trudeau said the following:

There have been hundreds of public inquiries over the course of our country’s history, and only four times were there waivers of Cabinet confidence. For this situation, it was extremely important to me that all the inputs, or as many inputs as possible, that Cabinet received in making the determinations that we did, were -- are visible to Canadians. So yes, we waived Cabinet confidence in terms of the inputs that Cabinet heard to make the decision. But the actual deliberations, as you point out, remain secret.^[383]

In the two years following the invocation of the Emergencies Act, the Committee recalled some federal witnesses, particularly to obtain answers regarding its multiple requests for access to evidence, including the legal opinion the government relied on before resorting to the Act.

In February 2024, Minister Virani reasserted the government’s position that the legal advice in question was protected by solicitor-client privilege,^[384] which benefits the Government of Canada, the client in this case.^[385] He added that, as Minister of Justice and Attorney General of Canada, he wore the hat of both advisor to government and member of Cabinet.^[386] Lastly, he pointed out that, in the circumstances, the government’s aim was not necessarily to protect the contents of the legal opinion itself, but the very existence of a privileged relationship “that promotes candour and free, full and fair advice.”^[387]

As for Cabinet confidence, Minister Virani said that it exists to “promote open and candid discussions around the cabinet table in the public interest that will be fearlessly advanced at that table and then defended publicly after that.”^[388] He also said that Cabinet confidence is waived very rarely but acknowledged Parliament’s power to request it.[389]

In light of the preceding, the Committee is concerned that it did not have access to all the information and documents that the federal government relied on to invoke the Emergencies Act and the related special temporary measures, in part due to the various types of privilege invoked by many of the witnesses.

The Committee agrees that access to all information and documents held by the federal government with respect to the invocation of the Emergencies Act should be improved. Consequently, the Committee recommends:

Recommendation 20

That the federal government be required to keep a thorough written record of the process leading to a declaration of emergency to prevent revisionist testimony and that this written record should be provided to the parliamentary review committee once it is appointed.

With respect to evidence before a parliamentary review committee, the Committee agrees that the rules surrounding future proceedings need to be changed, particularly to ensure that any review is transparent and comprehensive.

For this reason, the Committee recommends:

Recommendation 21

That the federal government amend the Emergencies Act to better define the parliamentary review committee’s role; and that a new definition include matters pertaining to the access of documents beyond access to those orders and regulations currently outlined within this Act.