"...any other law of Canada"
The Emergencies Act test, and everyone else's
Today’s cop, or at least this morning’s, was Ottawa Police Service Superintendent Robert Bernier. They run together after a while. It’s day 10.
Bernier is important: On Feb. 10, two weeks into the Siege of Ottawa, he was appointed Event Commander for convoy-related operations, a job he would keep long enough to clear the Red Zone around Parliament Hill. He was replacing Mark Patterson, who had worked with then-chief Peter Sloly on an enforcement-heavy approach that had gotten nowhere because the Ottawa police weren’t close to having enough bodies to implement it. The stress of dealing with Patterson had caused the acting deputy chief, Patricia Ferguson, to take two days off in the middle of the crisis. Informing Bernier of his battlefield promotion was the last thing she did before unplugging. Ferguson has already testified that when she returned to work, things were going much better. “A tale for another day,” I wrote here on Friday.
Here’s that tale.
In a pre-interview this summer, Bernier told council for Justice Paul Rouleau’s Public Order Emergency Commission that as a condition of stepping into the hot seat, he told Sloly to stop butting into operational decisions and admonished the force’s communications division to stop releasing a running count of arrests.
As has been exhaustively noted, there were at least two factions in the Ottawa police alone: the enforcers, led by Sloly and, for a time, Patterson; and the diplomats, who worked more closely with the OPP and RCMP and were much more inclined to let the protesters off the hook for lesser violations, led by Ferguson and Bernier. Bernier’s approach is apparent in the mission statement and main action plan he’d written by the end of Feb. 11. Emphasis mine:
Mission Statement
Using an integrated response, the Ottawa Police and policing partners will keep the peace, enforce legislation, maintain public safety for the duration of the Ottawa Truck Demonstration, with the utmost respect to the individuals Charter of Rights and Freedoms with priority on community and emergency services personnel safety & wellbeing.
Main Action Plan
To de-escalate and negotiate a peaceful resolution and demobilization of the Ottawa Truck Demonstration
I’ve been listening to the hearings from a distance for a couple of days and haven’t heard all of the testimony, so I’m relying heavily on these pre-interview summaries, which say things like this. I’m going to put the bits that surprised me in bold:
On February 12, OPP Chief Superintendent Carson Pardy and RCMP Superintendent Phil Lue phoned Superintendent Bernier and informed him that an OPP-RCMP Integrated Planning Team was in Ottawa to assist. Superintendent Bernier learned from them that the Integrated Planning Team had been in Ottawa since February 8, was based at RCMP’s National Operations Centre (NOC), and was assisting OPS to develop operational plans. Superintendent Bernier was surprised to learn of the Integrated Planning Team’s existence.
I mean, my God. It was the end of the second week of the biggest goat farm in the history of the OPS, and the cop in charge was just learning that there were more police just over the horizon.
Yet everyone seems to have worked pretty quickly together from that point: Pardy and Lue gave Bernier an operational plan the day after they called him, on Sunday the 13th. He liked it but it needed refining. The same day he learned that Mayor Jim Watson had negotiated, with some of the truckers, a plan to get vehicles off the side streets and onto Parliament Hill. He didn’t like this because he’d been working on a plan to get the vehicles off the side streets and onto the 417 out of Ottawa. You can see why he’d like that plan better.
That was Sunday.
On Monday Prime Minister Trudeau invoked the Emergencies Act for the first time in its 34-year existence.
On Tuesday Sloly resigned.
On Thursday, Feb. 17, Bernier, Lue and Pardy signed off on the refined version of the plan Lue and Pardy had sent Bernier over the weekend.
On Friday the police forces started to implement the plan and clear the Hill. Most of the shouting was over within two days.
I’ve sometimes wondered whether the Rouleau commission was paying enough attention to the central question, which is whether the Emergencies Act was needed,. But now the lawyer who’s been asking most of the questions for the commission, Frank Au, announced he was eager for Bernier’s views on this very question.
From the pre-interview both men could consult while Bernier was on the stand: “…[T]he federal emergency declaration did not significant[ly] impact his planning process. Superintendent Bernier did not know that the federal government was going to declare a public order emergency on February 13 and he stated that he would have carried out the police operation whether or not the federal government declared a public order emergency.”
Au to Bernier: “Explain that to us.”
Bernier: “The plan that I was developing was based on existing authorities, whether it be under the provincial, federal or common-law authority to act. This is what takes place on a daily basis on those larger-type events. We have to leverage those particular authorities that exist.” Before he ever knew the Emergencies Act would be in place, “I was satisfied that we were going to have all the authorities we’d need to take action — if the communication and the negotiation piece of our stabilization plan was not successful — in having that area cleared, and the city returned to a state of normalcy.”
Was the Emergencies Act helpful? Absolutely, Bernier said. It provides for the designation of secure zones. Which, come to think of it, he’d been planning to implement anyway. Still, all the talk about the Emergencies Act probably clarified things. “The secure zone options that were offered through the Emergencies Act was a benefit. It somewhat provided a framework, a legal framework, that would be a lot more understandable for our members, for the community and, in fact, the protesters as well.”
So the Act was helpful, Au offered. “Anything that contributes to mission success is a benefit,” Bernier agreed.
But was it necessary? “Hard for me to say. I did not get to do the operation without it.” He doesn’t know what “complications” he’d have faced if he had gone into action using only common law, the accumulated wisdom of court decisions on countless previous police operations. But he would absolutely have gone in using only the common law. “We have used it before. We have used it since, without the Emergencies Act. And it has been effective.”
Au asked gamely: But what about tow trucks? Surely the Emergencies Act was good for wrangling tow trucks at a time when private towing firms were reluctant to cough any up?
Bernier said the OPP had already secured 34 tow trucks, covered their identifying marks, sworn the drivers to secrecy, ensured their cooperation — all before the Emergencies Act was invoked. He doesn’t have a hunch that they would have been enough in theory. He knows they were enough in practice.
This is important because the Rouleau commission comes down to a binary test in law. I found I needed to remind myself what the threshold is, so I went back and looked.
There’s been a lot of discussion about the commission’s mandate, as laid out in the Order in Council written by the Trudeau government. The terms of reference are indeed broad, asking Rouleau to look into the “goals of the convoy” and “foreign funding, including crowdsourcing” and “disinformation, including the use of social media” and “the impact of the blockades, including their economic impact.” And he should. I hate short answers. All of this has been taken as an invitation to consider the convoy on grounds favourable to the Liberal government. The fact that Rouleau, who grew up in one of the most solidly Liberal ridings in Confederation, worked for John Turner in 1984 is also mentioned.
But there’s no evidence he can’t read the law, and the Emergencies Act is limpid. From Section 3: “For the purposes of this Act, a national emergency is an urgent and critical situation… that cannot be effectively dealt with under any other law of Canada.” My emphasis, again.
The Act does not say, “If the protesters involved are nasty, don’t sweat the details.” It doesn’t inquire whether people are sometimes mean on Twitter. It says, if there was any other way in law to get to the other side of this mess, then you don’t get to use the Emergencies Act. The testimony of the cop who cleared the Hill, who wrote his plan before the Act’s invocation and used equipment and officers in place before the Act’s invocation, does not settle the question in itself. There are many witnesses because there are many points of view. But since Bernier is not the only cop who has testified this way, the evidence is starting to mount. And GoFundMe doesn’t enter into it.
Let me skip ahead to Rouleau’s report, which must come out by next February. Whatever it says — and there is never any accounting for judges, so I can’t be sure — I don’t think it will have much effect on the politics of the thing. To test my claim, ask yourself whether you think Trudeau was right to use the Emergencies Act, and then ask whether you’ll change your mind if Paul Rouleau disagrees with you. See? Everyone else is like you. Stubborn.
We see already that thousands of Canadians are contriving their own lens for interpreting the whole constellation — the convoy, the government, tEh MeDiAz, the law, what have you — by their lights. So on David Herle’s podcast, Kory Teneycke, the Conservative strategist and advisor to Doug Ford, says some thoughtful things about why the Ontario premier is fighting a summons from Rouleau to testify (at about 43:00 here). But he also notes that it’s a “Liberal commission,” I think in reference to Rouleau’s partisan past. Similarly, if this turns pear-shaped for the Liberals, expect them to say it’s a Conservative law, introduced by Perrin Beatty under that noted advocate of foreign funding, Brian Mulroney.
And already, since the police are not delivering the hoped-for message, much is being made of comments the author of an OPS intelligence report made on social media. There can only be more of this as we go along: the convoy was racist, the police are racist, the Substacker is racist, Judge Rouleau had better realize what’s good for him.
How hard will people spin this? Ask the prime minister, who from 2:00 to 2:07 of this video, forgives Doug Ford’s exit from the commission witness list by saying: “It’s obvious that Premier Ford chose to stand with people of Ottawa, people of Ontario, people of Canada — and not with others.”
I know of no way to parse that sentence that would make it an expression of acceptable sentiment from a prime minister.
In a speech to Liberal partisans in Montreal in 2014, Trudeau said, “People in Ottawa talk about the ‘Conservative base’ as if it is some angry mob to be feared. They’re wrong. As all of you know, the 5.8 million Canadians who voted Conservative aren’t your enemies. They’re your neighbours. These are good people.” Yeah, those days are gone. That attitude from the Liberal leader is gone.
Introducing the Emergencies Act in Parliament, in 1987, Perrin Beatty said the test it sets out for its proper use is “very stringent indeed.” It should be. It’s not as sweeping as the War Measures Act it replaced. So it permits, and has led to, court challenges on Charter grounds, in parallel with the Rouleau commission and the joint Commons/Senate parliamentary committee. But nonetheless, it gives police sweeping powers in a country that has usually understood police should be denied sweeping powers, and usually come to regret the exceptions. Governments should not give themselves tools they would deny their opponents. Incidentally, Justin Trudeau’s “others” are running six points ahead of him in the latest Nanos poll.
Last night I turned off comments on what was then my latest post. I’ll decide whether to turn them on again eventually.