Trudeau government invoked Emergencies Act despite ‘potential for a breakthrough’ with convoy protesters, documents show

Vehicles block a road during a protest by truck drivers over pandemic health rules and the Trudeau government, outside Parliament in Ottawa on Feb. 15.ED JONES/AFP/Getty Images

On the night before the federal government imposed the federal Emergencies Act for the first time in Canadian history, the Prime Minister’s national security and intelligence adviser, Jody Thomas, told Justin Trudeau and the rest of the federal cabinet that there was a potential for a breakthrough with the protesters in Ottawa.

The surprising revelation is contained in a package of cabinet-level documents, previously marked secret, describing the discussions that took place in February as the cabinet weighed how to address a flurry of highly disruptive protests across the country that were primarily focused on opposing COVID vaccine mandates.

The documents are heavily redacted and there is no detailed explanation in the non-redacted sections related to the reference of a potential breakthrough.

Liberal government to release cabinet documents to Emergencies Act inquiry

The records were released as part of two cases challenging the use of the Emergencies Act. The Canadian Constitution Foundation, a legal non-profit, filed an application in late February for judicial review of the government’s decision to invoke the act.

The Canadian Civil Liberties Association (CCLA) has also brought an application for judicial review over the act’s invocation.

On Monday, Feb. 14, the day the act was invoked, Mr. Trudeau told a news conference that “It is now clear that there are serious challenges to law enforcement’s ability to effectively enforce the law.”

The cabinet documents include minutes of a late Sunday evening meeting of the full federal cabinet, which took place from 8:30 p.m. until 10 p.m.

The Feb. 13 meeting was chaired by Mr. Trudeau. RCMP Commissioner Brenda Lucki, Canadian Security Intelligence Service Director David Vigneault and other senior public servants and political aides were also in attendance.

The minutes describe a “situation update” delivered to the cabinet by Ms. Thomas.

The national security adviser noted that there were multiple border crossings that continued to experience blockages, “despite the success of law enforcement in Windsor as they disbursed the blockade from the Ambassador Bridge.”

Ms. Thomas told the group that social media continues to play an active role in the communication and organization of protesters across the country. She also said CSIS “continues to watch persons of interest.”

The minutes then reference the situation in Ottawa, where protestors and their parked vehicles – including numerous large transport trucks – had effectively shut down the city core for weeks by blocking streets in the area near Parliament Hill.

“With respect to recent actions, the National Security and Intelligence Advisor indicated that law enforcement gains have been important and that there was potential for a breakthrough in Ottawa, Ontario and that the RCMP was taking enforcement action in Coutts, Alberta,” the document states.

Virtually all of the remaining minutes describing the meeting are redacted.

The Globe and Mail asked the Prime Minister’s Office to comment on the release of the documents and the reference to a potential breakthrough. The government responded with a statement from Alexander Cohen, a spokesperson for Public Safety Minister Marco Mendicino.

“The potential for a breakthrough referred to negotiations led principally by the City of Ottawa with illegal blockaders in the days before the invocation of the Emergencies Act. The government closely monitored the status of negotiations, which were disavowed by many associated with the so-called freedom convoy and were ultimately unsuccessful,” he said.

Ms. Thomas’s reference to a potential breakthrough was made on the evening of Feb. 13. Earlier that day, Ottawa Mayor Jim Watson told reporters that the city had been involved in “back-channel negotiations” with the demonstrators.

The Liberal government invoked the Emergencies Act after more than two weeks of protests in Ottawa. Nine days later, on Feb. 23, it was lifted, with Mr. Trudeau saying the situation was “no longer” an emergency. Police had conducted a massive sweep of downtown Ottawa to clear out the self-described freedom convoy days before.

It is highly unusual for minutes of cabinet meetings to be released in any form. Cabinet records are exempt from release under the Access to Information Act and are normally only made public as historical records after decades have passed.

Conservative and NDP MPs said Thursday that the revelation of new details in court, coupled with heavy redactions, shows the government is not being transparent in defending its use of the act.

“The revelation that there was a potential breakthrough in negotiations the day before the Trudeau government used the Emergencies Act raises serious questions about the Liberal’s claim that the Emergencies Act was used as a tool of last resort,” said Conservative House Leader John Brassard, adding that it provides “further proof” that the government’s focus was on solving a political problem.

NDP MPs Alistair MacGregor and Matthew Green issued a joint statement saying that while the NDP supported the use of the Emergencies Act, revelations of a potential breakthrough show “a clear failure of the Liberals to be transparent with Canadians and parliamentarians.”

The NDP also questioned why the documents were released to the Federal Court, but not to parliamentarians reviewing the issue.

The Emergencies Act gave police the ability to arrest protesters within specific areas that were designated off-limits and gave banks the power to freeze protesters’ accounts without a court order. The move to invoke the act was supported by the federal NDP but was opposed by Conservatives and the Bloc Québécois. Related protests at several U.S.-Canada border crossings also created costly trade disruptions.

The Canadian Constitution Foundation said it in a statement to The Globe that “the evidence filed by the government on whether it met the legal requirements of the Emergencies Act is grossly inadequate.”

The documents include minutes of a Feb. 12 meeting of the Incident Response Group, which is also chaired by Mr. Trudeau but which is limited to a few ministers as opposed to the full cabinet. The minutes of the group’s meetings show they were also attended by a large number of security agency leaders, top public servants and political aides.

Mr. Trudeau said the protests were attracting worldwide attention.

“The Prime Minister confirmed that he has been speaking with a number of international partners and they are all expressing concern about Canada and our ability to handle it,” the minutes state.

During that meeting, the redacted minutes summarizing a discussion describing two distinct movements involved in the blockades.

“The first is relatively harmless and happy with a strong relationship to faith communities. The second is more concerning and comprised of harder extremists trying to undermine government institutions and law enforcement,” the Feb. 12 minutes state.

Those minutes also show that Public Safety Minister briefed his colleagues on an “engagement strategy” with leaders of the blockades, particularly those in Ottawa. The minister indicated that “a document was shared outlining an early framework which includes the objective of de-escalating the situation and encouraging protesters to leave.”

The minutes then note that there was a discussion about “how engagement was attempted by the Ontario government in Windsor last night, via a letter and how the protesters had rejected the offer to engage, resulting in enforcement actions beginning this morning.”

The package of redacted documents also includes the minutes of a Feb. 10 meeting of the federal Incident Response Group.

Those minutes include summaries of the various protests that were taking place across the country, primarily near border crossings.

“The Commissioner of the RCMP indicated that Windsor remains the number one priority,” the Feb. 10 minutes state.

The documents later state: “The Prime Minister set up the conversation to discuss two possible tracks: 1) actions that could be taken under existing authorities, and 2) the process of invoking the Emergencies Act.”

The next sentence is redacted. Then the minutes state: “Public Safety reported on a conversation with the lead negotiator (OPP) who noted that in Ottawa, approximately 80% of protesters had a weak connection to the cause, 5% had a strong devotion to it, and 15% were a swing factor. The negotiator suggested that the leaders of the protest could potentially be encouraged to leave and denounce the blockade in exchange for a commitment to register their message with the government.”

Virtually all of the remaining text for the minutes of that meeting are redacted.

After the act was lifted, a parliamentary committee was struck to review its use, in accordance with an accountability provision in the Emergencies Act. Between March and June, the special joint committee on the declaration of emergency held a series of meetings, where they heard testimony from top RCMP and law-enforcement officials, as well as Mr. Mendicino.

Ms. Lucki, the RCMP Commissioner, told the committee that the service did not directly request the invocation of the act but did say that it helped reduce the size of the protest – and clear it out. Steve Bell, the interim Ottawa police chief, and Peter Sloly, who stepped down as chief during the protests, have also said that they didn’t request the act.

Amid these revelations, Mr. Mendicino came under scrutiny for his prior comments on the act’s invocation. During a committee hearing on April 26, Mr. Mendicino said: “We invoked the act because it was the advice of non-partisan professional law enforcement.”

A senior public-safety official later tried to clarify that the minister didn’t mean that police asked for the law’s invocation directly, but rather, the tools contained within it.

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