Skip to main content

Truckers refuel their trucks during convoy protests in Ottawa on Feb. 5.Minas Panagiotakis/Getty Images North America

The federal government used a broader definition of a national-security threat than what is outlined in the Emergencies Act when it invoked the sweeping legislation in response to last winter’s convoy protests.

The new explanation for an emergency declaration under the act was presented to the inquiry studying its use by Jody Thomas, the Prime Minister’s national security and intelligence adviser.

She also contradicted on Thursday previous testimony from RCMP Commissioner Brenda Lucki and said the country’s top Mountie failed to share crucial information with cabinet ahead of its Feb. 14 decision to invoke the act.

Ms. Thomas said Commissioner Lucki didn’t disclose that police finally had a plan to end the protracted protest in Ottawa and she didn’t share her view that legal tools other than the Emergencies Act were still available to police.

Whether the convoy protests, that used trucks and other vehicles to gridlock Ottawa and clog border crossings in January and February, met the legal threshold for invoking the never-before-used act is a key question at the inquiry.

Deputy Minister of Finance describes race against time to prevent economic damage from border blockades

To declare a public order emergency, the legislation 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 comes from the Canadian Security Intelligence Service Act, and CSIS has said that the convoy protests did not meet the threshold. But Ms. Thomas testified that the government received legal advice that the Emergencies Act “is not limited by the CSIS Act.”

That assessment was quickly challenged by lawyers cross-examining Ms. Thomas, including Cara Zwibel of the Canadian Civil Liberties Association who said the act’s definition of threats to the security of Canada is “tied exclusively and exhaustively” to the CSIS Act’s definition.

Ms. Thomas declined to engage in a debate about the legal interpretation, noting that the inquiry will hear from other government witnesses on the matter. However, she also called the CSIS Act definition of threats to the security of Canada “very narrow and outdated” and said it should be modernized.

Just hours before the federal government announced the Emergencies Act invocation on Feb. 14, Ms. Thomas sent an urgent e-mail asking for a threat assessment. She asked for information on the characters involved, the weapons and motivation and called the protests “a threat to democracy and rule of law.”

Ms. Thomas testified that she was working to gather a final threat-assessment document for the federal government should it decide to invoke the act but she doesn’t believe it was ever completed. “It fell through the cracks and we were overtaken by events,” she said.

“My assessment was that this was an entrenched movement. That the convoys were feeding off of each other, that they were causing significant economic instability, that the violent rhetoric was increasing rapidly and exponentially,” she testified.

A summary of Ms. Thomas’s interview with inquiry lawyers ahead of her testimony on Thursday said that it was her view that it was “the totality of the circumstances” that led her to believe there was a threat to the security of Canada that warranted an emergency declaration.

After her testimony, Sujit Choudhry, a lawyer for the Canadian Constitution Foundation, released a statement saying the government’s legal case for the federal emergency declaration represented a “dangerous and dark turn.”

He said the Emergencies Act was explicitly tied to the threat threshold set by the CSIS Act and noted that neither the spy agency nor any law-enforcement agency concluded that the convoy protests met the high threshold set by the CSIS Act.

However, University of Ottawa constitutional law professor Errol Mendes told The Globe and Mail that he believes the government’s interpretation is correct. While the CSIS Act is mentioned in the definitions section of the Emergencies Act, Prof. Mendes said it is not explicitly included in the substantive part of the emergencies legislation that describes cabinet’s ability to declare a national emergency.

Ms. Thomas was appointed the Prime Minister’s national-security adviser just weeks before the protest convoys began making their way to Ottawa in late January. She was previously the deputy minister for national defence.

During her testimony at the inquiry she also said the government’s efforts to deal with the protests was hampered by intelligence and information gaps from the RCMP. She said that included the failure of the RCMP to share information that Commissioner Lucki had.

The country’s top Mountie testified at the inquiry on Tuesday. She said that by Feb. 13, an integrated police command in Ottawa (which included the RCMP and Ontario Provincial Police) had finalized a four-day enforcement plan to clear the protests in the capital.

During an incident response group meeting that same day, Commissioner Lucki received confirmation that Ottawa police had approved the plan and Commissioner Lucki and her provincial counterpart had signed off on it. But she didn’t share that information during the meeting, which was chaired by the Prime Minister, or at a subsequent cabinet meeting.

She told the inquiry that despite that omission she did e-mail the pertinent information to Ms. Thomas and Public Safety Minister Marco Mendicino. However that e-mail omitted key points.

Minutes from the Feb. 13 cabinet meeting show that Ms. Thomas told cabinet that law enforcement had made gains and “there was potential for a breakthrough” in Ottawa and enforcement was taking place at the border blockade in Coutts, Alta.

But Ms. Thomas testified that she had been told for days that a police plan was in the works for Ottawa and cabinet was not given “evidence or assurance” that a plan was ready and resources were in place. She also said that Commissioner Lucki did not share her reservations about the Emergencies Act, although she did e-mail them to Mr. Mendicino’s chief of staff.

The communication breakdown prompted a rebuke from Ms. Thomas at the inquiry.

“Individuals who are at that meeting are expected to provide information that is of use to decision makers,” Ms. Thomas testified. “And so if there’s useful information or critical information, it needs to be provided whether you’re on the speaking list or not.”

With reports from Marsha McLeod