This article originally appeared in the National Post.
By Ryan Alford, October 26, 2022
Commissioner Paul Rouleau made it clear at the start of the inquiry that its focus will remain squarely on the decision of the Federal Government to proclaim a public order emergency. As weeks of sworn and cross-examined testimony bring the events of last February into sharper view, we have yet to see any evidence of the essential precondition for such a declaration: terrorism.
The government relied on this threat being already in existence when it made its case to Parliament for invoking the Emergencies Act. The official explanation relied on the argument that the protesters’ activities were “tied to serious acts of violence against persons or property” for “the purpose of achieving a political or ideological objective.” It escaped most people’s notice that the threshold for “serious violence” in service of a political objective closely resembles the Criminal Code of Canada’s definition of terrorist activity.
When the Emergencies Act was drafted, the declaration of a public order emergency was contemplated only as a response to significant support for serious violence, of an order of magnitude greater than what existed during the October Crisis. When attempting to assess whether the evidence at the inquiry meets the legal standard, we must answer these questions: Who were the protesters allegedly attempting to assist? Were they attempting to further the aims of a group like the FLQ, in a manner far more direct than the alleged support of Quebec’s student and trade union movements in 1970?
The legal picture has been blurred by unhelpful bureaucratic jargon, especially the term “ideologically motivated violent extremism.” That phrase is not found in the Emergencies Act, the CSIS Act, or the Criminal Code of Canada, which refers to terrorism. The confusion wrought by this unnecessary yet fashionable euphemism stems principally from it frequently and lamentably being abridged to “extremism,” a descriptor that is far broader and even more imprecise than what it replaced. But to be clear: the FLQ were terrorists. People with views outside of the mainstream are not, regardless of how divergent those views are. To be properly subjected to emergency powers, they must have been acting in support of terrorists who were already engaged in serious violence.
By necessity, police officers use precise legal definitions; politicians have far more latitude. This may explain the difference in the perspectives of the Ontario Provincial Police who scanned for violence and the city councillors and mayors, fixated on what they considered abhorrent views. Unsurprisingly, those who believe that dangerous ideas should be eradicated before they can spread are far more likely to countenance the suppression of protests than law enforcement officials, who must constrain their conduct to legal limits. Accordingly, the latter are also far more likely to appreciate the all-important difference between violent acts and dangerous ideas.
OPP Superintendent Pat Morris broke the inquiry wide open last week when he revealed that he had been troubled during the protests by the suggestion that there had even been a potential threat to national security. Although he ultimately agreed that if blockades at border crossings proliferated such a threat might come about, shortly before the declaration of February 14, he memorialized (in an email to Ottawa Police Chief Peter Sloly, reviewed, and approved by his superior officers in the OPP Command and sent February 12th) his skeptical assessment that there was no credible intelligence of an existing threat to national security. Furthermore, he noted that both the RCMP and CSIS had agreed with his conclusion about their being no threat to national security, an evaluation that was reinforced by the peaceful resolution of the border blockades before the declaration of the public order emergency came into effect.
In their cross-examination of Morris, the government’s lawyers resorted to grasping at straws. They put it to Morris, who had also overseen the undercover officers at the protests, that there was a connection between those blockading the border crossing at Coutts in Alberta and the Ottawa protesters. When Morris said there was very little connection, we witnessed the very first mention of a shadowy group of extremists named Diagolon, not by the witness testifying, but by the government’s own lawyers. Morris brushed off the suggestion they were involved in the Ottawa protests and pointed instead to the presence of Les Farfaadaas (in English, The Leprechauns) at the intersection of Rideau and Sussex streets.
They had caused him concern, but the Sûreté du Québec assured Morris they were non-violent. The commission will hear more about that group soon, as their erstwhile leader Steeve Charland will testify next week; we will soon be able to judge for ourselves whether the Ottawa protests were carried out “towards or in support of” terrorism committed by the only organization of concern to the police that had any connection to the Ottawa protests.
In the absence of any evidence The Leprechauns are a terrorist group, the government appears prepared to fall back on the position that the protesters simply made it more likely that a “lone wolf” would use the protests as a cover for actions the Freedom Convoy could not predict, never mind countenance. If the inquiry accepts this as a basis for conclusion that the protests were carried out “towards or in support of acts of serious violence” then the right to protest is dead. As Morris noted, every protest increases this inherently unpredictable and unavoidable risk. Eliminating the right to protest on that basis would be as preposterous as banning books owing to the violence that followed the publication of The Satantic Verses, only with totalitarian implications that are even worse.
Thankfully, it appears to keen observers that an official finding against the government is approaching. This is what likely explains Jagmeet Singh’s public musings about whether in that event his party would withdraw its confidence and support to bring down Justin Trudeau’s Government. On CTV’s Question Period, Singh said that “simply because it was the wrong decision wouldn’t be enough.”
If misleading the country into supporting the most unconstitutional abuse of power imaginable isn’t sufficient, it is unclear what would. Canada appears close to crossing an event horizon, into a place where information about corruption, dishonesty, or even illegality becomes simply irrelevant. Accordingly, in the event that the government is found wanting, it is up to the people of Canada to provide the necessary accountability. Thanks to Singh, that may not be hastened by the commissions’ findings, but a reckoning will surely come. It is in the national interest that this take place at the ballot box, and soon.
Ryan Alford is a professor in the Bora Laskin Faculty of Law at Lakehead University and a senior fellow at the Macdonald-Laurier Institute. He was granted joint standing with the Canadian Constitution Foundation as a party before the Public Order Emergency Commission.
