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Rob Stewart, Deputy Minister of Public Safety, left, and Dominic Rochon, Senior Assistant Deputy Minister, National and Cyber Security Branch at Public Safety Canada, appear at the Public Order Emergency Commission in Ottawa on Nov. 14.Justin Tang/The Canadian Press

Canada’s spy agency told the federal government before it invoked the Emergencies Act that convoy protests against vaccine mandates last winter did not meet the national security threat level required to trigger the sweeping powers.

Canadian Security Intelligence Service director David Vigneault told a cabinet committee meeting the day before the act was invoked that the protests did not reach the threat level that the Emergencies Act relies on, according to an interview summary tabled Monday at the inquiry examining the act’s use. The meeting of what’s called cabinet’s Incident Response Group was chaired by Prime Minister Justin Trudeau.

To declare a public order emergency, the Emergencies Act states that there must be “threats to the security of Canada” that are so serious they mark a national emergency. The act’s definition of threats to the security of Canada comes from the CSIS Act.

The definition includes espionage or sabotage of Canada’s interests, foreign-influenced activities; threats or use of serious violence to achieve a political, religious, or ideological objective; or the violent overthrow of the government.

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On Feb. 14, Mr. Trudeau’s government made the unprecedented decision to invoke the act to end the protests that gridlocked Ottawa and several border crossings.

The Public Order Emergency Commission is led by Justice Paul Rouleau. Among the powers that the government invoked under the act was the ability for banks to freeze corporate and personal accounts of people connected to the protests without granting them due process.

The legislation requires the government to strike a commission each time a national emergency is declared under the act.

When the government invoked the act it published a legally required explanation for the decision that closely mirrored language from the definition of threats to the security of Canada included in the CSIS Act.

The document published on Feb. 14 referred to “continuing blockades” and tied them to “the threat or use of acts of serious violence” for the purpose of “achieving a political or ideological objective within Canada.”

It also cited “adverse effects” on the economy. However, the CSIS Act does not explicitly include economic concerns in its definition of threats.

According to the interview summary, Mr. Vigneault told inquiry lawyers that “he felt an obligation to clearly convey the service’s position that there did not exist a threat to the security of Canada” as defined by the CSIS Act.

He also told inquiry lawyers that “at no point” did the protests constitute such a threat.

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Mr. Vigneault said he asked his agency to prepare a threat assessment on the risks associated with the invocation of the act and he discussed a draft version of it at the Feb. 13 cabinet committee meeting. He said the document was also available for a subsequent full meeting of cabinet, but he doesn’t know whether it was distributed.

The inquiry will hear from the federal cabinet ministers who invoked the act next week as well as Mr. Vigneault.

CSIS also warned the federal government that invoking the Emergencies Act would likely increase the number of Canadians who hold extreme anti-government views and radicalize some toward violence.

Mr. Vigneault’s comments were put to Rob Stewart, who was the deputy minister for the federal Public Safety Department during the protests. Mr. Stewart testified that Mr. Vigneault’s assessment was clear to him and he believed it was also clear to ministers but couldn’t be sure.

Ultimately, he said, the decision to invoke the act rested with cabinet.

“The cabinet is making that decision, and their interpretation of the law is what governs here,” Mr. Stewart said. “Their decision was evidently that the threshold was met.”

That assessment also appeared to be shared by Mr. Vigneault who, according to the interview summary, said that while the act relies on the CSIS Act’s threat definition, the federal government has the responsibility to determine whether a public order emergency exists.

The CSIS director also said that he believes the definition of “threats to the security of Canada” needs to be modernized, noting it is nearly 40 years old and the protests could have constituted a national threat under a broader definition.

Evidence presented so far to the commission leaves an unclear picture about what information the government had to show that it met the legally required threshold. The commission has two weeks left of witness testimony and tens of thousands of documents that were submitted to the inquiry are not yet public.

On Feb. 25, Public Safety Minister Marco Mendicino told a House of Commons committee that the government got “the advice from our law enforcement that we met the threshold” for the Emergencies Act.

On Monday, the government declined to say which agency gave the government that advice.

During testimony on Oct. 27, OPP Commissioner Thomas Carrique told the inquiry that while the convoy protests met the federal Public Safety Department’s definition of a national security threat, they did not meet the more narrow CSIS definition.

Mr. Stewart is now deputy minister of international trade. He testified alongside Dominic Rochon, who has since left Public Safety but at the time of protests was a senior assistant deputy minister in the department. Testimony from the two senior bureaucrats showed that before the convoys arrived in Ottawa, the federal government had similar expectations for the protests as the Ottawa police did: They expected them to last only a weekend and that the protesters would be peaceful.

However, Mr. Stewart and Mr. Rochon acknowledged that they received police intelligence that warned of a “prolonged” event.

An interview summary tabled with the commission said that Public Safety bureaucrats, including Mr. Stewart and Mr. Rochon, were not aware of intelligence reports from the OPP that warned before protesters arrived in Ottawa that they were ideologically and financially invested and could “gridlock” areas around Parliament Hill for an extended period.

A Feb. 14 e-mail chain shows that as the government was invoking the Emergencies Act, Mr. Stewart had reservations. “There aren’t a lot of significant benefits,” he said.

However on Monday, Mr. Stewart walked back these concerns, stating he “underestimated” the act’s impact. “Measures that it contained had material benefit,” he said.

Documents tabled with the commission show senior federal officials discussed using the act as early as Feb. 7, but Mr. Stewart said the first serious discussions about using the act began on Feb. 10.

But internal e-mails suggest that at that time it was being considered as a “poison pill” to try to get Ontario to back down from demands for federal intervention. Internal e-mails show Transport Canada deputy minister Michael Keenan suggested telling Ontario’s officials that if they want the federal government to invoke its authority, “they need to declare an emergency they cannot manage so we can thereby invoke the federal Emergencies Act” to address the blockades.

He said the government could turn Ontario’s “request to use federal authority into a poison pill.”

“I realize this is provocative, but it may be helpful to outline to Ontario the only realistic way to invoke federal authority on the streets of Ontario. May induce them to back away from this logic,” he concluded.

The suggestion was supported by another top ranking bureaucrat and the note was forwarded on to Mr. Stewart and others. Mr. Trudeau’s national security and intelligence adviser, Jody Thomas, was also copied on the e-mails.

In his testimony, Mr. Stewart said the federal government was not trying to dodge the issues.

“I believe that the concern here was that the province was not taking as much action as they might be taking,” he said.

With a report from The Canadian Press

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