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Clerk of the Privy Council Janice Charette, left, looks on as Deputy Clerk Nathalie Drouin responds to a question from counsel at the Public Order Emergency Commission, in Ottawa on Nov. 18.Adrian Wyld/The Canadian Press

Canada’s top public servant provided a written recommendation to Justin Trudeau that supported the idea of invoking the Emergencies Act in response to convoy protests across the country, but also cautioned the Prime Minister that such a decision would be vulnerable to a court challenge.

The Feb. 14 recommendation from Privy Council Clerk Janice Charette was among a flurry of memos and around-the-clock meetings she discussed in detail during testimony at the Emergencies Act inquiry on Friday.

Ms. Charette appeared at the inquiry, known as the Public Order Emergency Commission, with Nathalie Drouin, the deputy clerk. Ms. Drouin is a former deputy attorney general.

The two Privy Council Office officials defended their view that the government met the legal threshold for invoking the Emergencies Act, even though some civil liberty groups say Ottawa acted unlawfully. There are currently two active court challenges of the government’s use of the act.

The commission, which is being led by Justice Paul Rouleau, is studying whether that legal threshold was met. Mr. Trudeau invoked the act on Feb. 14 in response to anti-government, anti-vaccine protests in downtown Ottawa and at various border crossings. The legislation gave federal officials extraordinary temporary powers, which they used to crack down on demonstrators. The government declared an end to the emergency on Feb. 23.

Cabinet ministers given suite of options in first week of convoy protest

Before the act was invoked on Feb. 14, the RCMP arrested protesters at a border blockade in Coutts, Alta. and discovered a large cache of weapons there. Ms. Charette told the inquiry this was a significant development as the government prepared its advice.

The Emergencies Act can be invoked in response to security threats the government is unable to deal with under other laws. The definition of threats to the security of Canada in the Emergencies Act is the same as the one contained in the Canadian Security Intelligence Service Act, which is the legislative framework that governs CSIS, Canada’s spy agency.

The inquiry has been presented with evidence that CSIS did not believe the convoy protests constituted a threat under its legislation. The spy agency’s director, David Vigneault, disclosed that assessment to the federal government before the act was invoked.

Ms. Charette and Ms. Drouin suggested that the presence of the same definition in both laws created confusion.

Ms. Charette told the inquiry that CSIS uses that definition to decide whether to launch investigations. But she said that is separate from the role of the federal cabinet, acting as governor in council, in deciding whether to use that same definition to invoke the Emergencies Act.

“The decision-maker in the Emergencies Act is not CSIS,” Ms. Charette said, adding that there is nothing in the law that says the governor in council “has to ask CSIS if it’s okay.”

In testimony at the inquiry on Thursday, Jody Thomas, the Prime Minister’s national security and intelligence adviser, said cabinet relied on a broader definition of threats than is explicitly contemplated in the Emergencies Act.

Ms. Charette and Ms. Drouin said the public service’s advice to Mr. Trudeau was based on the cumulative effect of various threats to public safety and economic security.

A redacted copy of the memo Ms. Charette presented to Mr. Trudeau on Feb. 14 – marked secret, and titled “Invoking the Emergencies Act to end nation-wide protests and blockades” – includes a note of caution about the government’s legal position.

The memo says the Privy Council Office “is of the view that such a decision fits within the statutory parameters defining threats to the security of Canada, though this conclusion may be vulnerable to challenge.”

When asked by the inquiry’s counsel about the memo’s reference to legal vulnerabilities, Ms. Charette pointed out that the decision has now been challenged in court.

“My view was that it met the tests. Others may not share my view,” she said.

Ms. Charette and Ms. Drouin were also asked to comment on recent testimony from RCMP Commissioner Brenda Lucki. The inquiry has heard that Ms. Lucki was of the view that police had not exhausted all available tools, and had a workable plan for dealing with the protests in Ottawa without help from the Emergencies Act. But she did not express this view during two key meetings on Feb. 13.

The two officials said there had been several days of talk about policing plans for Ottawa that had not materialized. Ms. Drouin said it was “reassuring” that the RCMP commissioner still felt she had options.

“Can you imagine if we had waited for the commissioner to say: ‘I’m overwhelmed. It’s over. I can’t do that?’” she said.

After the act was invoked, Public Safety Minister Marco Mendicino told a House of Commons committee, “We got the advice from our law enforcement that we met the threshold.” The government has not said which agency gave that advice.

The Canadian Civil Liberties Association, which is one of the groups challenging the government’s use of the act, issued a statement Friday afternoon describing the explanations from federal officials as “profoundly disturbing.”

The Ontario Provincial Police have testified that the Emergencies Act powers were not needed to clear the protests. And Ms. Lucki testified on Tuesday that she did not take a position or advise the government on whether invoking the act was appropriate, or whether the thresholds to use it had been met.

CSIS director David Vigneault is not scheduled to testify until next week, but a summary of an interview he had with inquiry lawyers has already been tabled with the commission.

According to the summary, Mr. Vigneault said “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.

Before the Emergencies Act was invoked, Mr. Vigneault requested that his service prepare a threat assessment of risks associated with the act’s invocation. Mr. Vigneault said he discussed a draft version of the threat assessment at a Feb. 13 cabinet committee meeting.

Mr. Vigneault told inquiry lawyers that while something may not be a threat to national security according to the CSIS Act’s definition, it may be a national security threat under a broader definition.

He also said the Emergencies Act cannot be read in a way that gives CSIS “the exclusive authority to determine whether there exists a public order emergency, as this is the responsibility of the federal government.”

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