Prime Minister Trudeau and Chekhov's gun

In the end, a story about how you can't prove a negative

Justin Trudeau testifying Friday.

This was the Justin Trudeau you hear about from people who have meetings with him: attentive, perceptive, with a good memory and a keen ear. There’s been grumbling from Quebec about how almost all the testimony at the Rouleau Commission has been in English, so he began his remarks in French. When prompted he remembered, and could comment on, every element under discussion. The contrast with RCMP commissioner Brenda Lucki, who “couldn’t recall” every interesting conversation she’s ever had, was striking. When challenged he pushed back, sometimes creatively.

There’ll be a lot of talk, here and elsewhere, about Trudeau’s claim that the Feb. 13 police plan was too sketchy to deserve being called a plan. When Jessica Barrow, counsel for the Ottawa Police Service, had a clerk project the entire plan on a screen and noted that it was 73 pages long, Trudeau glanced at the table of contents and cut in: “The entire deployment plan fills a single page?” Indeed it does, and Trudeau’s gentle interjection took a lot of wind out of Barrow’s sails. These are debate-team chops.

If his testimony changes five minds in this country about whether the Emergency Act was necessary than I’m the Rockettes. But it was a chance to see the man talking about an important decision. Lord knows that’s rare enough.

What we learned, or what we were reminded, is that everyone takes their own path to a first-ever declaration of a public-order emergency. Trudeau’s deputy prime minister had testified a day earlier. It would be hard to imagine two more starkly different rationales offered by two people who agree on the decision.

For Freeland, the cost to Canada’s economy and to its reputation as a business destination, which could aggravate the economic cost in a vicious circle, were paramount. There was the Sunday-morning call with bank CEOs, one of whom had heard from some American somewhere, “I won’t invest another red cent in your banana republic in Canada.” Freeland on Thursday called this “a heart-stopping quote.”

Perhaps I’ve paid closer attention to the rich symphony of American invective against Canada over the years than Freeland has. But my heartbeat was unaffected by this hand-me-down account of what would hardly have been the first mean thing an American with money said about Canada.

For today my point is that Trudeau was far less concerned about economic impacts than his money minister. Or less monolithically concerned.

Was the Ambassador Bridge blockade a concern, he was asked? “One of many, but yes.”

Freeland’s deputy minister, Michael Sabia, had told us more than a week ago to expect an account of a call with Joe Biden that would indicate the scale of American investment concern. Freeland testified that she was worried simply because the call was so easy to set up. But in the telling, the Trudeau-Biden call was an anticlimax. It was a short call, Trudeau said. It consisted mostly of Trudeau pushing message to Biden, not the other way around. One of the messages he pushed was that American money and right-wing messaging were aggravating the Canadian problem. Which suggests there was plenty of banana republicanism to go around.

If it wasn’t the nest of trade interruption, reputational cost and investment climate that forced Trudeau’s hand, what did? In his telling, it was the summer he’d had.

That was the late-summer election of 2021, called by Trudeau two years after the last one, in which Trudeau’s Liberal campaign events were repeatedly interrupted by protesters. I put credence in this. I’ve heard from people close to the PM’s entourage that they’re genuinely worried when he goes on the road these days.

And here I’m actually going to put words in Trudeau’s mouth. The summer before the 2021 election had been rough too, in ways he didn’t mention on Friday. That was when Correy Hurren, a former Canadian army reservist, had loaded a truck full of long guns and driven up onto the lawn of the prime minister’s temporary/eternal residence near Rideau Hall. Hurren was released on bail this week. I’ll bet you all the money in my pocket that was a topic of conversation at the PMO.

“I know the RCMP guys on my side are very concerned,” Trudeau told Yasir Naqvi, the Liberal MP whose riding contains Parliament Hill, according to a transcript of a phone conversation early in the convoy crisis.

Of course Freeland would be occupationally sensitive to advice from bankers. Trudeau, whose father was the last prime minister to use the War Measures Act in the wake of two terrorist kidnappings, would be sensitive to warnings of security risks. Everyone has a trigger.

Anyway they all brought their triggers to the virtual cabinet table and when it was done, Trudeau invoked the Emergencies Act.

Commission counsel Shantona Chaudhury asked him: what did that feel like?

The moment itself was disarmingly simple: a written recommendation by the Clerk of the Privy Council, Janice Charette, that Trudeau signed. “I reflected briefly on, first of all, the reassurance that it gave me that all the inputs in the system had come up to the Clerk,” he said.

It sounds so serene when you put it that way, the march of the inputs, like an episode of Schoolhouse Rock. It overlooks that Charette has admitted she didn’t know that the RCMP commissioner would have argued against using the Act. Or that letters from the emergency-preparedness minister were getting lost in transit. Or that Trudeau himself would say later — today, in fact — that “Things weren’t getting better, they were getting worse.” Even though the Coutts and Windsor blockades had in fact just been dismantled, and the Ottawa Police Service had finally elbowed aside its problematic chief and started working with other police forces.

Which would suggest the slippery slope had started sloping the other way. But these are all things I can say because I have hindsight. All he had was a choice.

And as he made the choice, he said, he played it both ways in his head. “I also reflected on, ‘OK, what if I don’t sign it? …What if I decided, ‘You know what? Let’s give it a few days’?”

He had worried about whether “the worst” would have happened. “What if someone had gotten hurt? What if a police officer had been put in the hospital?… I would have worn that — in a way that we would certainly be talking about, in a forum such as this.” Instead, he much preferred to explain his decision to use the act, rather than the decision to forego it.

Taken at its face, the implied test — that the Emergencies Act is justified if it keeps a cop out of a hospital — sets a really, really low bar. The prime minister joined a late-breaking consensus among his advisors that the bar is in fact higher. The government’s thinking on this, or at least the structure of its argument, firmed up late in the six weeks of testimony, when a curious internal contradiction came to light. CSIS director David Vigneault had told the cabinet the day before the Act was implemented that the protests didn’t meet the threat level laid out in the CSIS act — a test the Emergencies Act mentions. But in closed-door testimony that became the object of a public summary later, Vigneault said he had told the PM to use the Emergencies Act anyway.

In the last week, a succession of feds have argued that the Act mentions the CSIS security test but doesn’t require it. In cross-examination Sujit Choudhry, a lawyer for the Canadian Constitution Foundation, asked how it was that nobody had ever mentioned this distinction before.

It’s in the “first line” of the definition of a public order emergency in the Emergencies Act, Trudeau said. Chill as a pickle. And indeed, we see:

17 (1) When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

No mention of the CSIS test, the PM said. Except the first line isn’t quite the first line, because a section called “Definitions” comes before it. One of the Definitions says that in everything that comes below, “public order emergency means an emergency that arises from threats to the security of Canada,” and “threats to the security of Canada has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act.” So the PM did a heck of a job of jousting, but the CSIS test is woven into the Governor-in-Council’s prerogatives, according to the Act itself.

And again, if any of this changes your mind, I’m a Rockette. But Trudeau had one more task on this day, which is to remove a last nagging doubt about the Act’s necessity. That doubt arose during the first two weeks of testimony. That’s when a succession of uniformed police officers — Ottawa Police Service, Ontario Provincial Police, Royal Canadian Mounted Police — had testified that the early stumble-bum reaction of the OPS had, by mid-February, given way to professionalism and consultation.

The symbol of this new readiness was a draft plan the OPS’s new incident commander, Rob Bernier, had drafted with the OPP and RCMP by Feb. 13. This was substantially the plan they used the following weekend to move the protesters out, all three levels of police testified.

If all of this is true, there’s a kind of tragic misunderstanding at play, like an O. Henry story: the government dusted off a special law to help the police, who had come up with a plan that didn’t need the special plan. In his testimony, Trudeau was surprisingly elaborate in his dismissal of this notion. Disdainful, even.

“First of all, from the beginning, from the approach of the very first week, we heard from various authorities and police of jurisdiction: ‘Don't worry, we got this. There's a plan. There's a plan,’ Trudeau said. “And for the second weekend there was a plan, and ‘We have a plan for this,’ and ‘It's not going to happen,’ and ‘We've got this we're getting more resources — nope, there's a plan.’ We kept hearing there was plan. And even — I mean, we heard in testimony here that there was a plan on the 13th that the Ottawa Police Services pulled together. I would recommend people take a look at that actual plan — which wasn't a plan at all.

“It was a talk about using liaison officers to try and shrink the perimeter a little bit. But as you look at the annex for, you know, how the police officers are deployed, what resources are going to be needed? Every annex is ‘To be determined later. To be determined later.’

“It was not even in the most generous of characterizations a plan for how they were going to end the occupation in Ottawa. When the plan did come together — and if someone was to compare the supposed plan on the 13th with the actual plan on the 17th that Ottawa Police Services pulled together — you see the crisp difference between, ‘These are the types of units we need, these are the resources we need, this is how we're going to do it, this is all the staging of it’ on the 17th. It was not there on the 13th.”

Here’s a link to a .pdf of the Feb. 13 plan, the “supposed plan” that “wasn’t a plan at all.” As lawyer Jessica Barrow had pointed out, it was 73 pages long, although that’s not entirely fair: it includes things like a complete transcript of the injunction order brought by an Ottawa residents’ group. The real meat of the thing stretches across 15 pages, from page 8 to 23.

Still, I don’t know, that sounds pretty robust. I’d sure like to see 15 pages on the $15-billion Canada Growth Fund, which Freeland has said will be up and running by the end of the year, five weeks from now. As for the sections that say “To be determined later,” there are two: One is the “internal and external communications plan,” the other is a list of contingencies, which would be provided by specialized police units. I can see how it would be shocking for this prime minister to discover that some organizations produce their comms plans at the end.

Here’s the Feb. 17 plan, in which the PM perceived “crisp differences” from the Feb. 13 plan. I’ll say: It’s 49 pages long, and the two sections that were “to be determined later” are simply absent from it.

But what’s most striking to me is that the story Trudeau told about the OPS plan — that it was terribly disappointing, that it had to-be-determined-later where the meat of a plan should be — is very different from testimony delivered by two of his highest advisors only days earlier.

On Nov. 17, Trudeau’s national-security advisor, Jody Thomas, testified. Was she aware that a police plan was afoot to clear central Ottawa? “I don’t recall cabinet being informed of that,” she said. “At this point, we had no evidence of that. …And as I’d noted, we’d been told multiple times there was a plan.”

The next day, Janice Charette, the Clerk of the Privy Council, testified. What about this integrated police plan? “Cabinet was not provided with any detailed level of knowledge about the contents of that plan, how it was going to work, when it was going to work,” she said.

Somehow in the week since Nov. 18, the prime minister had discovered exactly what the plan was, and exactly how it had been disappointing back in February when his national-security advisor and his top civil servant had said nobody had told them abou the plan.

Anton Chekhov, the Russian writer, used to tell students that if you show a gun in Act One of a play, you need to have it going off by the end of Act Two. It’s a central rule of story-telling economy. The possibility of using the Emergencies Act — really for some damned thing or another — had been raised many times since the beginning of COVID-19. For a stretch there — I’m talking late 2020, 2021, long before the Ottawa convoy was even a gleam in its authors’ eyes — Trudeau could hardly deliver a news conference at Rideau Cottage without some reporter asking him about the Emergencies Act.

The idea was in the air. And then it was plucked from the air. I’ve seen no sign Trudeau and his colleagues regret their choice, and I can’t help noticing that the opposition leader hasn’t been his usual ebullient self this month. So I think the effect of Trudeau’s use of the act on partisan politics is clear. Its effect on the way Canadians will be governed for years to come… well, there’s no need to guess. We’ll find out.