Volume 34 (November 30, 2022)

Kent Roach, Prof. (Law – University of Toronto)

Bon matin. Je m'appelle Kent Roach. Je suis un professeur de droit à l’Université de Toronto, and as you've heard, I'm the moderator of this panel. I've worked with the Ipperwash, Arar, and Air India Commissions on matters relating to policing and intelligence. This panel includes two former directors of CSIS and two leading national security scholars, who I will shortly ask to introduce themselves and make opening five minute statements. I will then ask them to address a series of questions relating to intelligence, as collected by security intelligence agencies and the police; the definition of threats to national security, particularly the 2(c) definition in the CSIS Act first enacted in 1984. I will then ask them to address whether that definition should be changed, whether further study is required, and finally, we will explore whether the exiting or the new definition of threats to national security to Canada should continue to be used as part of the threshold for the declaration of a Public Order Emergency under the Emergency Act. So without further ado, Mr. Elcock, would you please introduce yourself to the Commissioner and make your five minute opening statement?

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Good morning, Commissioner. My name is Ward Elcock. I am a lawyer by training. I have spent some 10 years as the counsel to the Privy Council Office from 1984 until 1994. In 1989, I also became the Coordinator for Security and Intelligence, which was the original title of what then became the National Security Advisor after 2001, September 11th. I became the Director of CSIS in 1994, and in 2004, I became the Deputy Minister of National Defence, and subsequently, I was the Coordinator for Security and Intelligence -- Coordinator for Security through the Olympics and the G8 and the G20 on behalf of the Federal Government, which is my background in these subjects. A comment, rather than a statement, because I wanted to make sure that I said it: One of the things that I found strange in the lead up to the Commission, and through some of the testimony, was the focus on the importance or the relevance the interpretation that CSIS gives to the definition in the CSIS Act, which is also the definition in the Emergencies Act. To my mind, that was odd because, frankly, the relevance of the interpretation that CSIS gives to that definition is, in my view, beyond the normal rules of statutory interpretation, pretty much non-existent. The reality is the Service interprets that provision in the context of its role of its responsibilities in terms of the limitations imposed on it and the limitations that are inherent in any -- in the management of any intelligence service. None of those things are relevant to the discussions of Cabinet or to the issues that a cabinet might debate, but they do have important consequences for CSIS's interpretation of those -- of that definition. In that context, it is not clear to me that any revision of the CSIS Act definition would make any sense. If one were to introduce any new concepts into the definition in the CSIS Act that would create substantial difficulties in terms of the interpretation of the CSIS Act and raise some very significant separate issues. If you were, for example, to include power with respect to economic intelligence, that would in a stroke bring the Service virtually into a full-fledged foreign intelligence agency. So the consequences of a definition -- changing the definition in the CSIS Act are enormous, and in any case, I think, frankly, that's really beyond the purview of the Commission. You're looking at the Emergencies Act not the CSIS Act. We can come back to the issue of what I think ought to happen to the definition and what ought to be added, but I think it's important to recognise that CSIS's interpretation of that definition is a very different animal than the animal that Cabinet looks at when it's dealing with the Emergencies Act.

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Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, Mr. Elcock, and you came in under time. Mr. Richard Fadden.

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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Good morning again. I am a, like Ward, a lapsed lawyer. I retired a few years ago as National Security Advisor. Before then I was the Deputy of Defence, and before then, the Director of CSIS. But I spent most of my career and all of my career in the Federal Public Service. In fact, my remarks today are based on the fact that for part of my career I was in an organisation that produced intelligence, another part of my career in organisations that used intelligence. I think that's actually something that's worth thinking about a little bit. So my remarks this morning may surprise some of my colleagues, but I hope you think it's worthwhile. Having listened to testimony before the Commission, following reporting in the media, I think intelligence doesn't merit the star billing that it's getting. In the end, intelligence is information, and when we start talking about national security information we sort of have, you know, marching bands surrounding it, and it develops sort of an ethos or a quality that I don't think it entirely deserves. So I want to come back to that. So again, I think intelligence is basically information, and I think we need to remember that. So I very much hope that you will look at the definition of intelligence from the perspective of decision-makers, and not only from the perspective of collectors, lawyers, judges, and parliamentarians, because I think it gives a different construct to the whole thing. Later this morning, Professor Roach is going to ask me to take two or three minutes to talk about the more traditional view of national security, and I'll do that, but for the time being, I just want to talk about intelligence as information. And I think most decision-makers treat this -- they don't care where they get the information, they really don't. In my experience, they don't care where it comes from. As long as it's before them, it's lawful, and it makes sense they're happy. So this fixation with declaring national security intelligence as something extraordinarily special, I would argue is sometimes misplaced. Having said that, when they are given national security information, decision-makers at all levels, and I'm talking here both about Prime Minister and Ministers, and the police superintendent who is trying to manage a convoy in Lower Mandible (ph), Manitoba. And I think it's important to remember, both with respect of the Prime Minister and Cabinet, who are decision-makers, but also, everybody else in the system, when they're thinking about either invoking the Emergencies Act or collecting information, that the information comes from a whole variety of perspectives, the media, especially what you can see; policy staff; political staff; colleagues; political; professional; personal contacts. So to illustrate: is the view of a minister who happens to see something and talks about it in Cabinet, national security information if it relates to the Emergencies Act, or is a police officer on the frontline, who reports something to his inspector and that gets sent up for lying, is that national security information? Indeed, is it intelligence? And I think it's important to remember that one of the characteristics in this country of national security intelligence is when and how you can collect it is very seriously circumscribed. Professor Roach is going to talk in a few minutes, I think, about police intelligence, which is slightly different. But a lot of people think and believe that national security intelligence can be collected whenever somebody in CSIS or elsewhere believes there's a problem. That's absolutely not the case. And I think because of this, these institutions suffer a little bit in their credibility. This is not Ceaușescu's Romania where somebody just waves a hand, and you can collect anything about anyone anywhere. And I think that was one of the problems, conceivably, that developed in dealing with the road up to the invocation of the Emergencies Act. When the convoy started in British Columbia, were they a legitimate target of National Security Intelligence collection or Police Intelligence collection? I'm not entirely certain at that point. I'm being told by Professor Roach that I have a minute. So let me just say that, in the end, I want to leave with you the thought that what is intelligence, how important is it in decision making is really quite critical to doing all of this. Prime Ministers, in particular, do not decide solely on the basis of what we might characterize as national security intelligence. They have a variety of sources from everywhere and I'm not sure you can control those. But what's very important given all these sources of information is how you aggregate them, how you collect them, how you prioritise, and how you pull them together in a way that makes sense. I'll just close with the thought that given all of this information from any variety of sources, for both the Police Superintendent and the Prime Minister, it brings to bear something that we haven't talked about a great deal, which is judgment. And I think the reason we elect our political leaders is to exercise judgment. And I think when we do that, we have to give them a little bit of leeway. And I say this abstracting entirely what this current government did with respect to the Emergencies Act, so I'll stop there. Thanks very much. You're on mute.

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Kent Roach, Prof. (Law – University of Toronto)

Sorry, I'll get off of that. Thank you very much, Mr. Fadden. Now Professor Wesley Wark, please, introduce yourself and your five-minute opening statement.

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Wesley Wark, Senior Fellow (CIGI)

And thanks, Commissioner and Counsel and members of the public who may be tuned in. I'm very grateful for this opportunity to discuss issues which shape the national security crisis perceived by the federal government in February '22 issues which are at the heart of the Commission's mandate. I've studied national security and intelligence issues for the entirety of my career, beginning with a historical interest nurtured when I was a student at Cambridge University, which is full of the ghosts of spies. The arch of my subsequent career could be described as MacDonald Commission to Rouleau Commission. I want to make three, quick contextual points before providing what our moderator suggested should be a chief nugget of opening advice for the Commissioner. The first point is light-hearted, I make it because I suspect the Commissioner hasn't had many moments of levity over the past few weeks, the other two not so much. So I want to take you, with a purpose, to my favourite intelligence cartoon published in the New Yorker magazine sometime after the 9/11 attacks. It showed a group of Neanderthals crouched in a stony landscape, inspired I'm sure by the movie 2001 "A Space Odyssey", the leader says -- I have no idea what a Neanderthal accent is meant to sound like -- the leader says, "We've got enough rocks. What we need is better intelligence." The Emergencies Act was rocks. What about the intelligence. The second point is about the historical context for this inquiry. It joins a long list of distinguished predecessors that grappled with national security crises, from the Gouzenko Royal Commission in 1949, through the MacDonald and Arar Commissions, to the Air India inquiry and intelligence performance issues were central to all these inquiries. This leads me to a third contextual remark. In my research paper for the Commission, I explored whether the effort to understand the intentions, capabilities and opportunities of the Freedom Convoy amounted to a major intelligence failure. Now with the benefit of the public hearings and associated documents, we can trace, I believe, a path from intelligence failure, especially early warning failure, to policing failure, to eventually the invocation of the Emergencies Act marked by great uncertainty about what the future might hold. The concept of intelligence failure is a much studied but contested term, and you won't hear it spoken by government officials or ministers before this Commission. This is understandable. It is a hard thing to face, and intelligence failure is easily oversimplified and used for the purposes of scapegoating. My nugget of opening advice to the Commissioner is this. I urge the Commissioner to identify the critical points of intelligence failure and consider their impact on the invocation of the Emergencies Act. Such factfinding is also relevant to recommendations to avoid future intelligence failures that might shape the course of national security decision making in a crisis. If we can get the intelligence function right, that might allow us to keep the Emergencies Act legislation on its intended high shelf. To go further, I would say it's important to consider the limitations that affected intelligence collection on the so-called Freedom Convoy, especially in regard to open source intelligence. Equally important is the quality, accuracy and utility of threat assessment reporting produced by diverse entities including the Ottawa Police Service, the OPP, the RCMP and ITAC. On the governance front, it is also important to understand the extent to which a largely decentralized national security system was able or not to coordinate and integrate diverse intelligence and information streams. The testimony heard by the Commission, especially from the National Security Intelligence Advisor, strongly suggests this was a real problem. More advice. Consider the phenomenon of mental maps, especially those used by political decision makers as they received intelligence threat reporting. This includes what they thought of the intelligence function in general and their receptivity to intelligence reports. Finally, it seems to me crucial to understand exactly how the available intelligence informed decision making prior to and with the invocation of the Emergencies Act. Intelligence failures generate serious consequences for government and society. History is littered with them. If the Commission can successfully write what I call the first draft of the history of the Freedom Convoy including the intelligence piece -- got it, Kent -- and determine recommendations to improve the performance of the intelligence system writ large, it will have done notable work in the public interest. Thank you.

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Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, Professor Wark. A little bit under time. Batting cleanup, Professor Leah West.

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Leah West, Prof. (International Affairs – Carleton University)

Good morning, Commissioner. I'm Dr. Leah West. I'm an assistant professor at the Norman Patterson School of International Affairs where I teach national security law, international law and counterterrorism. I'm a former DOJ lawyer. My client was CSIS. And I'm the co-author, along with Craig Foreces, of National Security Law. I'd like to begin by acknowledging that the premise of this panel is seemingly that what occurred in Canada in January and February of this year was a national security threat, at least as we understand them in the law. For this reason, we've been asked to consider the definition of threats to the security of Canada, the challenges of security intelligence and the rise of IMV. With the greatest of respect, I'm not certain that this underlying presumption is accurate. I do not question the impacts the protests had on citizens in Ottawa, Windsor, Coutts or elsewhere, nor do I question the economic impact the blockades and the borders and the capital had on this country. But as we typically understand it, did these activities or their impacts constitute a national security threat; namely, one of terrorism. If we take a step back and look at what happened, we should ask ourselves whether unlawful and even violent protests typically give rise to what we call a national security threat under the law in this country. Did we label the G8 and G20 protests in Toronto a national security or terrorist threat? Would we have said the same thing about the violent protests in the United States in the summer of 2020? Threats to public order and public safety, no doubt, but we have never labelled violence against police officers attempting to disrupt a protest terrorism. Moreover, the fact that individuals who hold extremist beliefs would seek to co-opt a political protest to advance their agenda is not a new phenomenon. We do not label entire protest movements terrorist because some amongst the protesters are looking for an opportunity to create violence. Again, I'd point to the history of G8 and G20 protests and even the Summit of the Americas in Quebec City in 2001. Similarly, we have never labelled blockades and other non-violent but illegal means of obstructing critical infrastructure as terrorism. This country has a long history of protests along rail corridors and ports. While certainly these activities threaten trade and Canada's economic interests, they do not fall within section 2(c) of the CSIS Act, no matter how broadly one interprets it. It is the -- is it then the combination of these types of activities that made them rise to a national security threat in February of this year? Perhaps. Or were they perhaps labelled a national security threat because that is what is currently required to unlock federal authorities that were necessary to bring these activities and their impacts to an end. If there is a chance that it is the latter, I urge restraint in broadening our understanding of national security, and in turn expanding the powers and authorities of our national security agencies like CSIS. While I wholeheartedly agree the CSIS Act requires modernisation, I do not believe this Commission or the Freedom Convoy should form the factual basis for those reforms. Instead, we should ask whether Cabinet should have the authority to use executive action to end unlawful protests and obstruction of critical infrastructure that rises to the level of a national emergency and, if we do, then the solution, in my opinion, is to explicitly define the trigger for that type of emergency and narrowly tailor the available powers to bring those activities to an end. Thank you.

Volume 34 (November 30, 2022), page 17 34-017-05

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, Professor West, and everyone. You were excellent with the time limits. I must have scared you. So let’s start with a little bit of intelligence 101 and explaining the concept of intelligence as it pertains to national security. In the hearings it’s often been referred to as an inexact science. Mr. Fadden, you’ve already referred to it as information. Could you start us on -- with a little discussion about elaborating on your views about what intelligence is?

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Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Okay, thank you. So I’m going to be more traditional here and start talking a bit about national security intelligence and security intelligence by just listing a few of the general characteristics which apply. First, generally speaking, national security intelligence of use to politicians is to be policy neutral. It is not to advocate a particular end, either in policy or operational terms. Ideally, it’s prepared by people who don’t - - who are not involved with policy or operations. Again, ideally, it draws on all information lawfully available, secret, confidential and open source. It’s important to remember that in this country when you can collect security intelligence and how it’s severely prescribed by law, and this has an effect sometimes on whether or not information is, in fact, collected. There are three broad categories relating to, I think, the Emergencies Act that are worth thinking about: security intelligence, which is mostly what I’m talking about; foreign intelligence, which could hear a bearing if there are foreign entities involved, and police intelligence, which Professor Roach is going to talk about in a few minutes. While security intelligence relates to threats to the security of Canada as set out in the CSIS Act, I would argue that it should be broader than that. The definition in the CSIS Act relates to what CSIS can do, not what the Government of Canada or any other institution might consider to be a national security threat. There’s a difference, I think, as between what an administration -- administrative body can do and what CSIS or another collective agency can do. I think that’s fairly important. To make sort of what may seem like an odd comment, partially in response to what I know Professor West believes, there is more to the Constitution in this country than the Charter, which we seem to forget sometimes. We’re supposed to have a Constitution similar in principle to that of the United Kingdom. We’re supposed to promote peace, order and good government, and in that general context defence of the realm and public order is an executive government function that I think we need to remember even if the very narrow descriptions contained in particular statutes are relevant or not. There’s a cycle to collecting intelligence or intelligence production, and one part is particularly important. That’s the collection strategy, when do you start collecting intelligence, against whom, with what tools. You have collection, then you have analysis and contextualization and distribution, and this varies a great deal depending upon whether you’re in a crisis or not, whether it’s long, short or medium term in its orientation. But I think one of the things that’s particularly important is collection strategy or the authority to collect. As I tried to mention in my opening remarks, in this country you just can’t start collecting intelligence because you feel like it’s a good thing. I personally think CSIS constrains itself somewhat too much in terms of what it can or can’t collect, but that’s another issue. But for the purposes of this Act, remembering that all of this collection is constrained in some shape, way or fashion I think is very, very important. The other thing that’s very important, I think, is to remember that no one intelligence agency has a monopoly on correctness or truth when it’s looking at national security intelligence. The Canadian intelligence community is usually defined as CSIS, CSE, DND and the military, GAC, PCO, ITAC, FINTRAC, and a few others. All of these could have had something to bear on what was being given to political decision- makers prior to the invocation of the Emergencies Act and how they are brought together in such a way that they can -- they form a coherent whole is really important. One of the dangers of dealing with intelligence is group think because there’s a real pressure within that community to develop a consensus. There are rules which say that you can formally disagree, but that happens very, very rarely. And one of the things that I guess worried me then and worries me now is this group think phenomenon. Somebody develops a view and you don’t want to cause too much trouble and you sort of move long and, before you know it, it becomes a consensus view when, really, it shouldn’t be. And I wonder a little bit if during the lead-up to the invocation of the Emergencies Act that might not have played a little bit in the production of intelligence. So again, I was just trying to give you a bit of a general sense of what national security intelligence is and I think two important components and then I’ll close there. It is supposed to be policy neutral. You’re not supposed to use intelligence to advocate a particular position either in respect of policy or operations, and secondly, the collection strategy respecting the acquisition of this intelligence is really, really important and it varies tremendously between the organizations that I’ve listed and then the police on the other side, so I’ll stop there. Thank you.

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Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, Mr. Fadden. Professor Wark, what would you add, agree or disagree with to this question of what is intelligence as it pertains to national security.

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Wesley Wark, Senior Fellow (CIGI)

Kent, thanks very much. Listen, I’ll just expand on some things that Mr. Fadden raised, and I’m particularly delighted that he mentioned the intelligence cycle and the different components that goes into the intelligence process. But maybe I’d begin just by saying it’s important to understand, of course, the purpose and objective of intelligence, which is to understand threats and threat actors, including their intentions, their capabilities and what opportunities they might have from malicious action. Professor Roach, you know, mentioned of is intelligence a science or an art. I suspect everyone around this table will say it’s an art, but there are scientific components to it, particularly in a contemporary context and the ways in which it is reliant on technological tools to assist it in collection and analysis. But I would also say, and it -- I think it’s an element that is worth paying close attention to, a key part of the intelligence cycle is the process of intelligence assessment and reporting. We spend -- tend to spend a lot of time talking about intelligence collection, but intelligence collection is valueless unless you have a very strong assessment system. Just a couple of other remarks on objectives of intelligence. I think Dick captured these well, of course. It’s often referred to in a very lofty way the role of intelligence is to speak truth to power. That is very lofty, but I think we can kind of climb down a little bit and say that the important objective of intelligence is to inform decision-making, to allow for wiser decision-making and being policy neutral in that context, as Dick mentioned, is extremely important. Intelligence is meant to provide to government and what is often called an information advantage to give them some kind of edge in understanding perhaps a fast-moving or crisis situation. The early warning component of intelligence is very important, as is its predictive capacity or ability to see beyond the current moment and anticipate or assess the kinds of threats that might face. Just two final points, very quickly. One is that in thinking about a definition of intelligence, I was drawn to the very first definition that I know of that was composed in our modern era, and this was written by a man named Sherman Kent, who was one of the early leaders of CIA intelligence analysis. He wrote a small book that was published by Princeton University Press in 1949 and he described three categories of intelligence. Intelligence is knowledge, intelligence as organization and intelligence as action. And I’ll just end, Commissioner and Kent, just with a quick word about ITAC because Kent had asked one of us to speak to this and perhaps I will as well. But I think ITAC plays an important, unique role and had an important role potentially to play with regard to the Freedom Convoy. It is meant to be an intelligence fusion centre for the National Security and Intelligence System as a whole. It is not an intelligence collector, as the Commissioner has heard. A little bit on its history. It was created in 2004, we can argue a little bit about its exact birthdate, based on a predecessor established within CSIS in 2003. Its original intent was signaled by its initial title, Integrated Threat Assessment Centre. But over the years, its scope was diminished and it became the Integrated Terrorism Assessment Centre. ITAC is a resource for the National Security and Intelligence Advisor, who in her testimony, as I recall, said that she mostly relied on its reporting for her understanding of the threat picture, but also arguably found it insufficient. And I think that the challenges that were faced by ITAC and the potential deficiencies in its reporting are an illustrative case of some of the wider problems that were faced in coming up with an integrated clear picture, clear as possible picture of the threats posed by the Freedom Convoy. And I’ll just end by saying there is an extraordinary moment that was revealed in the IRG minutes and the IRG tracker, where the National Security and Intelligence Advisor felt that she had to turn to something called the Intelligence Assessment Secretariat at the PCO to try and pull together an Integrated Threat Assessment picture. I say this is extraordinary because the Intelligence Assessment Secretariat does not do domestic threat reporting. It has always, over decades, existed to produce strategic foreign intelligence assessments. The very fact that the National Security Intelligence Advisor felt, as Cabinet was beginning to consider its track one and track two and the potential invocation of the Emergencies Act, felt she had to turn to this unit within her office, I think is an important illustration of some of the problems that the system as a whole faced. So thanks.

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Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, Professor Wark. And Commissioner and the public should know that there is much, much more detail in Professor Wark’s excellent paper that he prepared over the summer, and that is available on the Commission’s website. So finally, on the issue of intelligence, and I’m only a little disappointed, I know Professor Wark could have talked about Grahame Greene, and John le Carré, and cultural ideas of intelligence, but perhaps Mr. Elcock will help demystify intelligence. Thank you.

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I’m not sure I can demystify it particularly. I would agree with what Dick has said about intelligence. It is -- it’s information. It is not necessarily, even if it’s collected by technical means, it is not necessarily accurate. It is simply information which you try and make an effort to bring to a level of greater certainty, or the greatest level of certainty you can get it to, but the reality is it is never evidence or proof of anything. It’s simply information that informs decision makers. Hopefully it does give them an advantage, but there are lots of cases where there is not intelligence, and therefore decision makers have no particular advantage as a consequence of it. I’m not sure I agree with the view that, in this case, there was necessarily an intelligence failure. The Commissioner has more information before him than I do. But it does strike me that listening to some of the information I did listen to, that indeed there was intelligence which was available to some of the participants, the Hendon process of the OPP, that would have provided pretty good intelligence about what to expect. The fact that the Federal Government did not have a wide swatch of intelligence reporting upon which to rely, one would like to have more, but the reality is the Service came to the conclusion, and I think rightly so, that it -- that the protest did not rise to the level of the section in the CSIS Act as a threat. Whether it would have risen to that level, one could argue that it arose to that level during the process itself, as the protest morphed into something more than the initial convoy. It’s an interesting question, but not one on which, frankly, I’m in a position to come to any conclusion. Although I would say that even if the Service had come to that conclusion, it really, at that point, would have made little difference, because the reality is the ability to collect information at that point would have been -- the question would be moot. One’s ability to actually collect any useful information would be pretty difficult. I think Professor Wark is right to note the importance of assessment. Assessment is crucial. But at the end of the day, if you don’t have information, there’s nothing to assess. In this case, there was no -- there was little information, apart from whatever information might have been gleaned from public sources or from police sources that would have allowed the assessment of -- or a really detailed assessment of the information for the Federal Government at the Federal Government level. In some sense, this was an issue which was not at the federal level. The Federal Government does not normally have responsibility for issues within a particular province. In this case Ontario, and would be the same in other provinces. It is a provincial jurisdiction. I think the Government on Ontario has pointed out on a number of cases, in a couple of cases in its existence, cities are creatures of the Province. The reality is, that is a matter for the Province, not a matter for the Federal Government. So it is not entirely surprising to me that the Federal Government was not particularly well informed about the issues surrounding the protest. And indeed, I’m not sure that one could necessarily expect that they should be well informed, because this is a matter for another jurisdiction, frankly. So again, the issue of whether there’s an intelligence failure, I’m not sure. Having said that, clearly there was a necessity, given what did happen, given the fact that the protests morphed into something else, whether because they were allowed to morph into something else, or just simply the passage of time allowed it is, as I said, an interesting question. But I’m not sure that there’s any point in pursuing that issue particularly. Apart from that, I think what -- I think it’s really important to keep in mind the reality of what intelligence is or isn’t, and that it is not an exact science. Even if it’s collected by technical means, it’s not an exact science. It’s still an art. You’re still dealing with untested information which you can’t absolutely guarantee.

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Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. At this point, and with the Commissioner’s indulgence, I will briefly step out of my role as a moderator and say a few things about the collection of intelligence by the police, as opposed to security intelligence agencies, which the panelists have addressed. Here I think it’s important to understand that the starting point is the 1981 McDonald Commission, which led to the creation of CSIS. The McDonald Commission warned that the RCMP Security Service, which had an intelligence function within the police, had trouble seeing the difference between dissent and threats to national security. And of course, this was manifest in different ways. At one point, reports of 800,000 files on Canadians at a time when our population was I think about 22 million or 25 million, the detention of almost 500 people under the War Measures Act. And so what the McDonald Commission recommended was what you’ve already heard, is the creation of CSIS with a statutory mandate, a fairly restrictive statutory mandate with words like, "strictly necessary" with it, and a really state- of-the-art external review at that time by CERC and the Inspector General, now by NSIRA and the National Security Committee of Parliamentarians. So when you look at police intelligence, I think it is important to realise that it is working in a less circumscribed way. Now, Justice O'Connor, in the 2006 Arar Commission, went back to some of the things that Justice McDonald and his colleagues observed in 1981, and there was a common concern that the police at that time, within the RCMP, were not adequately trained in national security matters. Now, obviously, the context was different. In 1981, the issue was knowing the difference between a staunch PQs and someone who would actually use or support political violence. In the post 9/11 environment, it was, was there adequate information among RCMP officers about the human rights situation in Syria and Egypt and the consequences of sending questions and cooperating with those people. But I think it is an important background to know that although Justice O'Connor accepted that intelligence is part of policing, indeed, you often hear about intelligence-led policing, which, as you panelists have indicated, could be seen as information-related policing, that Justice O'Connor recommended that the RCMP collection of intelligence should always be restrained by the role and expertise of the police in enforcing the law and in preventing crime. Now, Mr. Commissioner, you've heard evidence about the collection of intelligence by both the RCMP and the OPP. In my view, you should be aware that the police, and here I say especially the municipal police and the provincial police, are generally subject to less watchdog review than CSIS or even now the RCMP's national security activities, which can be reviewed by NSIRA, the National Security Intelligence Review Agency, which has access to all documents other than Cabinet confidences, and I should add, including documents covered by solicitor/client privilege. So there is a very robust relatively new oversight mechanism with respect to federal, but when it comes to municipal and provincial police forces there is not the same. This is not to say that there is none, but there is not the same. Justice Linden, in his Ipperwash Report, raised concerns about police at public protests receiving different and divergent streams of intelligence prepared by people with different levels of experience. And you've already heard about the importance not simply of collection but of assessment, so estimates are made about reliability and the importance of how it is communicated. Justice Linden was particularly concerned in the Ipperwash context that Natural Resources, perhaps not known as for producing intelligence, was producing intelligence that did not always jive with what the OPP had heard. And of course, the Ipperwash Inquiry is relevant because it resulted in what many have recognised was thankfully avoided during this emergency. Just finally in concluding, I will mention that you've heard about Operation -- OPP's Hendon intelligence operation, and was examining the convoy after first examining Indigenous protests, the Wet'suwet'en, Tyendinaga, Six Nation and Caledonia. We really don't know very much about how that started. We do know that in contrast to national security intelligence the OPP Hendon reports were, it's an exaggeration to say shared with everyone, but they were certainly shared much more freely than is normally the case with national security intelligence. You also have heard that the RCMP's ideologically motivated extremism intelligence branch also produced reports, but I've not seen them as exhibits. Finally, I would add that there has been much commentary, I don't know if you need to get into this to discharge your mandate, but from the 2010 Air India Report on down about whether intelligence is -- national security intelligence is adequately shared with the police. Generally, I think it's fair to say, in part because they operate with the expectation that matters can end up in court, are more generous in sharing intelligence where, to hearken back to perhaps the le Carré/Graham Greene vision of intelligence, which I recognise is partly mythologized, the sources and methods, and particularly the fact that Canada relies heavily on foreign intelligence which is not ours to share, is -- are some of the reasons why security intelligence tends to be shared less widely. I apologise for going over my own self-imposed -- - (LAUGHTER)

Volume 34 (November 30, 2022), page 29 34-029-22

Kent Roach, Prof. (Law – University of Toronto)

--- time limits. So returning to my role as moderator, we'll move to the next question. What are the gaps and -- unless there's a question. No. Okay. What are the gaps and challenges around sharing intelligence with law enforcement across the Federal Government and between jurisdictions? Professor Wark, can you take the lead here?

Volume 34 (November 30, 2022), page 33 34-033-12

Wesley Wark, Senior Fellow (CIGI)

Professor Roach, thanks very much. Maybe I'll begin by saying that challenges in the sharing of intelligence, either within a national security intelligence community, or more broadly, with law enforcement and first responders, is a perennial issue for any intelligence system that I am aware of, but it is an important issue, I think, for this Inquiry. And the gaps in sharing of intelligence was an issue highlighted by the National Security Intelligence Advisor as one of the two key gaps she identified, the other being problems with regard to capacity to effectively use open source intelligence, which I know Professor West is going to address in a minute. Why are these gaps important? And again, I would come to the significance of having, the necessity of having as comprehensive and integrated an intelligence picture as possible. And of course, various national security intelligence actors, including law enforcement, operate under distinct authorities and mandates. We can talk about gaps in the sharing of intelligence collection, or raw data if you'd like, but I think the most important gap involves the sharing of assessments. Just on the federal national security intelligence system, there are multiple intelligence assessment units that have sprung up, many since 9/11, across the government. An integrated intelligence picture means the ability to share across those units. The Intelligence Assessment Secretariat at PCO is a central hub for foreign strategic intelligence assessment but there is no real counterpart for domestic intelligence assessment. The mandate of what became the integrated terrorism assessment centre is far too narrow, so that is one problem. When it comes to law enforcement, threat assessment sharing with the National Security Intelligence community, I found it noteworthy that the National Security Intelligence Advisor felt that she wasn't getting the information she needed from the RCMP, which would be one important conduit. The most striking aspect for me of this failure to share threat reporting involved events at Coutts, Alberta. Although the RCMP Commissioner informed the Public Safety Minister on February 13th about the Coutts investigation and impending arrests, the National Security Intelligence Advisor, Jody Thomas, and the Assistant Secretary to the Cabinet for Security and Intelligence, Mike MacDonald, both testified that they learned about the Coutts threat through media reporting. A few other quick points to conclude. One, to come back to the OPP project Hendon reports, which have been mentioned, we do know a little bit about the history of this initiative, but I would say in the context of Freedom Convoy threat reporting, it was a remarkable effort. And as Professor Roach said, it had a wide distribution list for its reports, but a wide distribution list doesn't mean that people read it and take it in. Project Hendon reports simply failed to penetrate and didn't have the impact on threat assessment reporting at the federal level that it should have had. A second point I will make is both specific and more general. The Ottawa Police Service proved incapable of generating a sufficient threat picture about the Freedom Convoy. But at the same time, as far as I can see from the evidence, the OPS was unwilling or unable to draw on Hendon or other sources of intelligence. My conclusion briefly about this challenge of a sharing, in particular, of threat assessment is that I think the picture that was revealed is one of too many silos and engrained cultural practices that contributed to a dysfunctional intelligence ecosystem. But I did want to give a little bit of credit to the former Ottawa Police Chief Peter Sloly for his thoughts about this. And I commend the Commissioner to some of those remarks that the former OPS Chief made about his feeling in retrospect that there was a need for a much more integrated system of intelligence assessment sharing that the OPS, other law enforcement agencies and the entire National Security Intelligence community could draw on. Thank you.

Volume 34 (November 30, 2022), page 33 34-033-19

Kent Roach, Prof. (Law – University of Toronto)

Thank you. Mr. Fadden, what would you add?

Volume 34 (November 30, 2022), page 36 34-036-09

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Thanks, Ken. A couple of things. First of all, I think we have to start from the premise that Parliament has set up various national security entities for a reason. They have different priorities, they have different objectives, they have different authorities, so we should not be surprised if in the end they produce intelligence that is not exactly the same as all the others, thus arising the issue of coordination. But there's nothing inherently wrong with various entities with national security responsibilities coming up with slightly different conclusions. So I think that's the base of a lot of this. One of my hobby horses when I was still working was that national security is no longer national. I think that is beyond dispute today. Virtually any national security issue that's arisen in the last 10 years has had international components, and it has also had subnational and civil society components. So to suggest that national governments, in this case Canada, is uniquely or specially or God-given right to define and to deal with national security alone is dreaming in technicolor. They cannot do it. Civil society entities, provinces and municipalities are much closer to the people of this country than generally speaking is the federal government. So somehow, I think, we have to change the culture that while in the end the federal government may have some special responsibility for national security, they cannot do it alone, either from an international perspective, or a subnational, or a national security perspective. The coordination of security intelligence, I agree entirely with what Wesley was saying. It's fine and dandy to give the National Security Advisor the mandate to do all of this but they need staff support. She has it on the foreign intelligence side. It does not exist on the security intelligence side. One of the questions that often came up when I was still NSA was do you need a statute that puts in law your mandate to coordinate and to do all these sorts of things that everybody wants to do. I always answered no because I thought this was -- would conflict with ministerial accountability. But having said that, what's lacking in order to bring about this coordination is political will. Certainly, when I was working, I suspect it was true of Ward, but he can certainly speak to himself, we spent a lot of time getting people to do what they should have wanted to do on their own without our telling them, in terms of sharing information. And I found that in a particular crisis or particular circumstances, I had more than enough umph in my job as NSA to get people to do it, coordinate things, and to do it properly. I did not have enough umph in my job to do that systemically because there was no political will to do it. Prime Ministers have to accept, I think, that national security is more important than they traditionally do accept in this country. I mean, I started working in this area under Mr. Chrétien, who was driven screaming and yelling into having to deal with 9/11 because his priorities were social and economic. They weren't national security. Mr. Harper's were economic. They weren't national security, although he had to deal with Afghanistan. And I think it's fair to say that Mr. Trudeau became Prime Minister not expecting to have to spend a lot of time, money and effort on national security. Why is this the case? I think it's because Canadians don't feel threatened, and, generally speaking, there ain't no votes in national security. That's just a statement of fact, I think. So the question I would have for you, Commissioner, is how can you in your report convince the government that what happened with the invocation of the Emergencies Act is not likely to be unique. We're going to have future disruptive events over the course of the next few decades. They're not -- there are not going to be fewer. There will be more. Some of them will be generated inside this country, some of them will be generated outside this country. So somehow, the government, the politicians have to accept that this is important and provide their officials with the wherewithal to integrate because Ministers aren't going to do it. It's an unreasonable request to expect Ministers to do this. So I don't think there are enough coordinating resources available to do security intelligence coordination. Two last thoughts. I was told once by the Director of the CIA of the day that over 96 percent of the information his agency used was open source information. By open source, he did not mean something that was readily available, but something that, if you worked at it, you could get access to, and it wasn't secret as defined by governments. I suspect that's still true today. So coming to grips with how much this open source information, sometimes hard to get at, should form part of security intelligence and I think it's something that we need to consciously address. I can remember a circumstance, this is many, many years ago now, I'd like to think it doesn't apply today, I had a security assessment to approve, and it was relating to some specific activity in Africa. And I asked why a certain event wasn't reported because I'd seen it on television. And the analyst told me that, well, he couldn't put it in because he didn't have any intelligence confirming it. I mean, it's the sort of things that drives people to distraction, this cultural difficulty of dealing with open intelligence against, you know, a hundred years of secret intelligence, of the James Bonds of -- you know, all of the people that Wesley talked about. This is a cultural issue. You don't need legislation to deal with this, I don't think, but somehow, somebody somewhere has to pull a few levers or pop a clutch and convince people, I think, that there are real threats on the national security front in this country. We should talk about them more. I hope your report will help this because we don't talk about national security in this country and we’re not going to get the politicians to move. Last thought, which probably will not endear me with a couple of my colleagues, but I would just remind, that Parliament created the national security entities in order to promote the national security, not to provide opportunities for audit, review, and oversight; these are incidental. And sometimes I wonder that we get so taken up how we’re monitoring the collection of security intelligence and how we’re dealing with it, that we forget that the initial objective was to promote the national security. Again, that’s a cultural issue and there’s a balance to be had. But I’ll stop there. Thanks, Kent.

Volume 34 (November 30, 2022), page 36 34-036-11

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. Food for thought. Professor West.

Volume 34 (November 30, 2022), page 40 34-040-14

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

You’re very diplomatic.

Volume 34 (November 30, 2022), page 40 34-040-17

Leah West, Prof. (International Affairs – Carleton University)

Thanks. I’m going to focus on the specific question of gaps on sharing intelligence with law enforcement, and Kent already alluded to a lot of this. And I’m taking a big-picture lens here. So I think it’s important to really take away is that in Canada, domestic intelligence sharing, at least at the operational and tactical level, only routinely flows one way; it flows from law enforcement to CSIS, not the other way around. You heard from representatives at CSIS that they became aware of the Hendon report through the Integrated National Security Enforcement Team, so the INSETs. And through these teams, intelligence from law enforcement related to CSIS’s mandate is fed back to CSIS, and when necessary, information from CSIS regarding INSET investigations can be shared with law enforcement, but it’s through a highly centralized, strategic- level process, and what’s known as the One Vision 2.0 Policy. So lots of information flowing to CSIS from law enforcement, but only trickles of intelligence from CSIS to police. And generally; I’m not, again, narrowly focusing here on the convoy. But I do think in one sense this makes sense. CSIS’s investigative mandate, at least when it comes to national security threats, is far wider than law enforcement. CSIS’s job is to advise the government about threats, realized and potential; and it’s not to lay criminal charges. And you only have to look at the definition of terrorist activity in the Criminal Code, for example, versus the definition of what captures terrorism in the CSIS Act to get a sense of how much wider CSIS’s mandate actually is. And I do want to pause here and emphasize one point; the scope of political violence captured by the CSIS Act is actually quite broad, although I totally agree that how CSIS chooses to focus its activities can be much narrower than what the law allows for. And I think we have to remember that CSIS’s activities are necessarily proactive, other than law enforcement activities that tends to be reactive. A CSIS investigation needs not be tied to a well- identified threat actor or well-defined group. Moreover, CSIS can take numerous investigative steps to investigate threats before they need a warrant, which is something you heard a lot about. The threshold for obtaining a warrant is significantly more demanding than the threshold to start a section 12 investigation into threats into the security of Canada, and one only needs to look at reports of review bodies to understand that the number of warrants CSIS obtains is nowhere near the number of investigations the Service undertakes in a given year. And that’s precisely how the Act is set up to work. Kind of digressing, but my point is that the flow of intelligence between CSIS and law enforcement is far more restricted than the other way around, and while that is to be expected there can be instances where CSIS does not share intelligence relevant to criminal investigations for fear that its intelligence will cede criminal investigations and be subject to disclosure and testing in criminal proceedings, and this fear is often shorthanded as the intelligence to evidence dilemma. What’s the basis for this fear? Kent alluded to it; as a security intelligence service, every action taken by CSIS, regardless of the threat under investigation, is governed by what I consider to be three preoccupations, which is that security intelligence has national and international dimensions; the threat actors, the influences, the consequences, and the theatres of operations demand liaison and information-sharing with foreign and domestic partners of all types, and often under a demand for secrecy, and as a net importer of intelligence, maintaining strong relationships of trust with these partners is vital to CSIS’s success. Second, the constant fear of penetration by a foreign agency or threat actor demands unrelenting vigilance and creates, I would say, an obsessive need to safeguard employees, sources, and investigative techniques. And, third, the ultimate aim of security intelligence organization is not public recognition for its successes or to provide a sense of security to citizens; the aim is the collection of information about people and organizations who seek to obscure their true intent, which necessitates the careful use by CSIS of deceit, manipulation, intrusive technology, all without violating the rights and freedoms the Agency has been established to protect. So disclosing CSIS information in open court threatens all of that, and quite frankly, our evidence law is not well structured to balance those concerns against the rights of the accused. And so numerous proposals have been put forward over the years, starting with the Air India Commission and moving forward in an attempt to remedy that issue to allow for greater information flowing between CSIS and law enforcement. But, again, I would say that there’s a lack of political will to tackle this problem. And if a finding of this Commission is that there is greater need for intelligence sharing between federal and provincial agencies and municipal police forces, this problem is going to need to be addressed. And until it is, the reality is that intelligence between law enforcement and CSIS will continue to largely flow one way. Thank you.

Volume 34 (November 30, 2022), page 40 34-040-18

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. Mr. Elcock.

Volume 34 (November 30, 2022), page 44 34-044-03

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I think I’m batting cleanup here, so rather than try to respond to everything that has been -- much of which I agree with, let me just pick a few issues. I think Dick is right; one of the clear issues that creates problem in the national security area is that national security is not widely perceived as an important issue, both by governments, but also even by Canadians, which unsurprisingly, if Canadians don’t think national security is terribly important, their politicians are likely to think that national security isn’t terribly important either. I think, however, it is important, and it would - - I would hope, as Dick said, that to the extent that -- of your work that it does, in fact, engender a little more attention to national security, more attention to national security would in theory allow us to build a better system. I think also the issue of national security -- because we tend to focus more on review of the national security agencies is -- because we don’t necessarily worry about national security, we tend to focus more on reviewing those agencies and constraining their abilities and their actions to the point that I frankly think that there is a question of risk tolerance on the part of organizations such as CSIS. If you live in a world where you are heavily reviewed by, I would argue, three review agencies -- Professor Roach has mentioned two, there is a third, the Federal Court, which, frankly, acts sometimes as if it was a review agency. I think in the circumstances often the agencies are so reviewed that they become risk averse, to a certain extent. Perhaps more attention to national security issues, and less attention, as Dick said, to review of national security agencies would be a good thing. The issue of -- between police and the intelligence agencies, the flow, as everybody has said, is pretty one way -- pretty much one way, and has been described by Professor West, the reality is that for CSIS there is a constant question; can I share this information without risking both sources and methods? And I think in the context, one has to realize that the methods that the Service uses are frequently different, and sometimes much more advanced, than police forces use, and in some cases, is the identity of sources and particular methods that they might have used, beyond technical ones, that are at issue for the Service. So there is a great reluctance on the part of the Service to share information with law enforcement, both because it may compromise those sources, but also because frequently it compromises the criminal investigations. If the Service provides information to the RCMP or another police force, and that investigation is compromised because the Service refuses to share the information for the purposes of a prosecution, then the reality is we’re interfering with law enforcement. So there is a tendency not to share with police, and that’s inevitable. The issue of police sharing with -- that came up in the context of the NSIA and whether or not she had received enough information. I think the issue there, in fairness to the police, is that they’re in the process of criminal investigations and therefore are reluctant to share information that may compromise their criminal investigation. And that is a continuous refrain, and it is one, frankly, as counsel to the Privy Council Office, I was familiar with. To the extent that -- I have to say my experience in dealing with -- I think the issue of the flow of information, I think it has gotten harder than it used to be. Frankly, in my time in the Privy Council Office, I had fairly close relationships with the RCMP and they did share, on a fairly consistent basis, the kind of information that I needed to be able to provide Ministers with advice on a variety of issues, as the Coordinator for Security and Intelligence. I think that has become harder to do in the context of more circumscribed rules around all of those issues. But it also depends on the way that police forces see sharing. And in some respects, that’s a very personal issue. Often some senior police officers will be prepared to share. Others will not be prepared to share. It is how each individual sees it, to some extent. Unfortunate, but real. I think I’ve hit -- I mean, I agree with most of what has been said, so I’m not going to delve beyond that into the issues, unless there are questions that we come back to it at some point.

Volume 34 (November 30, 2022), page 44 34-044-05

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. And I’m going to have to call inaudible now, with apologies to the panel. What I’d like to do is move into, because we want to have time to look at the legislation. So if we can wrap this up by giving each of you three minutes to make one brief suggestion to improve intelligence gathering and sharing. But in doing that, Professor West, I’d like you to also address gathering and open-source. That was question 3, which is now gone. And Mr. Elcock, I’d like to have you address question 4, concerning how it fits into deciding whether there is a public order emergency. So while both of you think about that, why don’t we start off with Professor Wark? So this is your three-minute wrap up on intelligence gathering and sharing? And again, my apologies.

Volume 34 (November 30, 2022), page 46 34-046-27

Wesley Wark, Senior Fellow (CIGI)

Professor Kent, thanks very much. So I’m going to take us back to my cartoon illustration. We need, in this country, better intelligence. And as Mr. Elcock indicated, one of the challenges in getting there is the lack of public understanding and attention to the significance of intelligence and alongside that, often the lack of political will and political seriousness paid to this issue. But in thinking about better intelligence, we need and must consider the intelligence cycle as a whole. All the different elements that go into the intelligence function. And we need, I think, improvements across the spectrum. And this is not a conclusion drawn simply from the Freedom Convoy events. I think there are longstanding issues involved in improving the Canadian National Security Intelligence system. But I think that the Freedom Convoy events demonstrated were some particular gaps and deficiencies, especially in the context of threat assessment. And it is on the basis of an integrated and high- quality threat assessment that the success of the intelligence function I think ultimately depends. So there are some things that I think need to be done, and some of these are probably outside the scope of the Commission and the Commissioner’s report, but I will just put them on the table. One is we need a real review, not a compliance review, of the intelligence system, which is at the heart of much of what this new review system does. And a couple of my colleagues on the table have raised questions about the impacts of that review system. I’m -- when I’m talking about the need for a real review of the intelligence function, I’m talking about the need for a real look at its capacities and effectiveness. And I would say in that context that if you examine the entire history of the modern Canadian intelligence system since 1945, there has never been a systematic review of intelligence capabilities and performance. And that is a remarkable thing. I would say there’s no point in collecting intelligence if you don’t have the analytical system to make use of it. Sharing of intelligence that we’ve talked about is important, but it’s not as important as the sharing and coordination of high-quality analytical products to create a common and integrated foundation for what Sherman Kent called intelligence as knowledge. If we don’t have an intelligence culture which allows for intelligence to inform decision making, then the system as a whole is a waste of money and effort. And some of my colleagues with great experience inside the system have, I think suggested, if I am reading them right, that intelligence is only one part of a multiple stream of information that comes to decision makers. And that is absolutely true, but what intelligence has to be, thank you, Kent, is the most important part. It will never have a monopoly on the information available to decision makers, but it has to be understood as being the most important input. And in that context, and I’ll just conclude on this, I was puzzled and worried by some of the testimony provided by the Deputy Prime Minister and Minister of Finance about her views on the intelligence that was reaching her. She described it as finely sifted flour. That doesn’t sound like praise to me. She also said, “As Minister, I want my own sources of information. As Minister, I think I should get out and understand the situation on the ground.” Those are understandable, political objectives, but they diminish what I think of as the prime role that an intelligence system must play and it reflects the fact that we have not got to that point. Sorry, Kent, I’m wrapping up. Not got to that point where we really understand the significance of intelligence and its role in national security decision making. Thanks.

Volume 34 (November 30, 2022), page 47 34-047-16

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. Mr. Fadden, your three-minute takeaway, and also focused, if possible, on national emergencies and open-source. Thank you.

Volume 34 (November 30, 2022), page 50 34-050-08

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Thank you. I mean, there are any number of things that need to be done, and Wesley has mentioned a good number of them. I think what I would suggest in terms -- you know, the note here talks about a brief suggestion. I think that there must be recognition that intelligence comes from multiple sources. I come back to my national security being above and beneath the nation state. I think in fact, to get this to change, because it’s so culturally entrenched, it probably should be in the law. And then once that’s the case, that this is part of the definition of what security intelligence can concern itself with, there would be changes in policy and operations. And I think secondarily, there need to be clear agreements across the board in this country between the Feds, the Provinces, and Municipalities about the sharing of intelligence. I disagree a little bit with what Wesley said about the capacity of municipal police forces in dealing with intelligence. I think, for example, Montreal, Toronto, and Vancouver have just as many resources and capabilities as the federal government has, should they choose to use them. So ignoring them entirely, I think would be a mistake. The coordination issue then, beginning to share all this information, what the heck are you going to do with it? The usual response in the Federal Government is, “We’ll set up a federal coordinating capacity.” I think it should be a national coordinating capacity. One that’s not just federal, maybe even the Federal Government can finance it. But, you know, a great deal is being made about the nature of our federation, you know, and how, you know, at one level jurisdictions don’t overlap each other, and at another level, how they entirely overlap. But I think on national security, they do overlap. And having a national coordinating capacity, not an exclusively federal one, would encourage Provinces, Municipalities, and even some parts of civil society to share information. Just to finish off -- perhaps even earlier than Kent hopes -- Wesley’s view of a review -- view on a review, I take the point that we haven’t had a great review, but if we don’t consider, in this country, national security to be important, I’m not quite sure what a high-level review is going to give us. This current government and the previous one generally didn’t like reviews. And it’s a minor miracle that they finally got out the Indo-Pacific Review after, I think, three years. So putting it into review, or as the Brits used to say, “Into commission” I’m not sure it will give us what we need. I don’t have a solution, but I think if we start a review of this it’ll never come out, because -- and it won’t be useful because it will be so high level, because we tend to lowest common denominator a lot of the things that we think about on national security in this country, or they’re so politicized that you can’t have an effective dialogue. Anyway, my main point is, in terms of improving intelligence gathering and sharing, is recognize that it just doesn’t come from the federal government, and we have to have mechanisms to make sure that we can collect it from everywhere and then make sense of it on a national basis. Thank you.

Volume 34 (November 30, 2022), page 50 34-050-11

Kent Roach, Prof. (Law – University of Toronto)

Professor West, your last three minutes on intelligence gathering and sharing?

Volume 34 (November 30, 2022), page 52 34-052-20

Leah West, Prof. (International Affairs – Carleton University)

Sorry; I’m going to focus on open source, because that’s what I was asked to focus on. And so we know open source is derived from information publicly available; not readily publicly available, but publicly available, regardless of the type of medium. And in the testimony you heard from intelligence officials, no-one can convert -- excuse me; conveyed concern about the ability to collect, share, and analyze newspaper articles -- sorry -- or YouTube videos. The pressing question is about the ability to collect, share, analyze information shared on social media platforms. Moreover, I don’t think anyone would suggest that CSIS couldn’t follow its targets on Twitter or TikTok, or that it’s inappropriate to read pages on Reddit that are very clearly tied to the Agency’s mandate. And the same could be said for law enforcement investigating a criminal suspect. My understanding, based on many conversations with officials and the testimony you heard, is that what’s currently lacking within Canada’s national security and intelligence community is the ability to monitor social media for trends that could pose a threat to national security. They want to be able to understand social movements, and narratives and the motivations and intentions of those participating and promoting them. Doing this requires taking a very large lens to observe and analyze social media activity that is not immediately and may never become threat-related. It can also, depending on the technique used, require the collection and analysis of vast quantities of personally identifying information, which would trigger, you know, the Privacy Act, and potentially the Charter, but there’s still an area of legal uncertainty. So despite there being numerous private entities with these capabilities, there is no federal agency in Canada with a mandate or the legal authorities to conduct this type of OSINT. The closest thing that exists, and you heard a bit about this, was the Canadian Rapid Response Mechanism, the RRM, but the RRM monitors the digital information environment for foreign state-sponsored disinformation and provides the Government of Canada and its international RRM partners with open-source -- open primary-source data analytics about threats specifically to democracy. So the question troubling the intelligence community in Canada is; if we need this similar capability -- and I suggest that it would be worthwhile -- where should that capability reside? CSIS, I suspect, would be the first one to tell you that it’s not their job, and that they don’t want to be seen to be monitoring the population. Alternatively, you could think Public Safety, but Public Safety is not a collection agency; it’s primarily a coordination, and sets priorities and policy. So too for PCO; not a collection -- intelligence collector but does serve a coordinating function. One alternative I’m going to throw out there, but I think it is a little bit beyond your mandate, is the promise of establishing an arm’s length public-facing body that could publicly identify social trends and defamation as a form of warning and information to Canadians writ large, civic education. But there are pros and cons to that -- that proposal as well, and because I have limited time, I’m going to stop there.

Volume 34 (November 30, 2022), page 52 34-052-22

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much, and my apologies. Finally, Mr. Elcock, please take us home on intelligence gathering and sharing.

Volume 34 (November 30, 2022), page 54 34-054-27

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Okay. Again, you’re making me play cleanup. A few points. I would share the view that a greater degree of sharing of information between the federal government and -- between federal government agencies and provincial agencies, and municipal police forces and so on, is important. There have been some efforts to do that over the years; they have not progressed as far as they probably should have. They probably ought to continue to progress, and there ought to be more pressure to make them progress. Although, to some extent, I suspect that that is a result of the reality that national security, or security -- national security issues are not widely seen as crucial. The issue of whether or not some national coordination body, it would or would not be useful. My guess is, frankly, that since we haven’t managed to achieve a national regulator for securities issues, we’re unlikely to get to the point of creating a national coordination for -- or coordination agency for security and national security issues anytime soon. I have long, frankly, resisted suggestions, or have frequently resisted suggestions that there should be reviews of this or that; and, in particular, national security issues. Frankly, I’m not sure they’re all that useful. They’re often formulaic. They’re unlikely to -- it is unlikely to happen any time in the near future. Since an election is -- we’re in a minority situation and an election is two years away, I suspect that that’s not going to happen any time soon. And to be uncharitable -- my academic colleagues will probably not share this view, but sometimes I think that academics would like to see more reviews because it gives them something to write about, rather than achieving anything, in terms of real process. I think one of the things that is clear here -- because it’s not my view, frankly, that there -- this was necessarily -- as I said earlier, that this was necessarily an intelligence failure. I think one of the areas where there really needed to be better cooperation has nothing to do with the federal government; it’s really the issue of how Province of Ontario organizes itself and deals with its police forces. That, to me, in some respects, was much more important issue than whether we have any national coordination function or broader sharing. That seems, in this case, to have been deficient. It would be -- but that is a much more discrete issue. Clearly, in this case the RCMP did not see it as important to share as it might have. I think that is an inevitable consequence, as I think I said earlier, of the way in which police forces function. But if -- I think that it would be important for police forces broadly writ, since in some sense this, at a certain level -- certainly in its initial stages -- was much more a public safety issue than it was a national security issue, or seen as a public safety issue rather than a national security issue. The issue of police sharing and of, perhaps, funding of better police analysis capabilities, in some cases would be more important than trying to build some national structure, which I’m -- suspect we won’t get any time soon.

Volume 34 (November 30, 2022), page 55 34-055-03

Kent Roach, Prof. (Law – University of Toronto)

Thank you very, very, very much. So for our last half hour, we’re going to drill down on two separate but interrelated statutes. The Commissioner has heard much evidence about threats to the security of Canada, the 2(c) definition, and whether it should include serious threats to economic security, serious threats to critical infrastructure, and threats posed by ideologically motivated violent extremism. Those issues are actually dealt with a bit in the 2001 Anti-terrorism Act, but in a highly subscribed way. So the first question will be to ask all the panellists, should the CSIS definition be changed? What are the consequences for CSIS and Canadians? And do you think the Commissioner should make that recommendation or make, as is contemplated also in the Order in Council, further study? So that's the first question. And then the second question, which you can also address, is should the CSIS definition of threats to the national security of Canada, whether it's the current or a new one that you may support or not, should that be part of the definition of a Public Order Emergency, or should those two things be decoupled? So Mr. Fadden, do you want to start, and I'll leave it to you to untangle those two questions.

Volume 34 (November 30, 2022), page 57 34-057-04

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Okay. I will in fact try and deal with the two of them at the same time. So in terms of changing definitions, I mean, I just remind us that the CSIS Act was brought into place in 1985, where the main preoccupation was the Cold War. Once we got over the Cold War, by and large it was terrorism. After that, we started becoming very preoccupied with cyber threats of one sort or the other, and today, we seem to be drifting into extreme violence by one group or the other. Just listing these three or four main preoccupations suggests to me that the definition set forth in 1985 clearly needs updating, but I would argue that it should be totally decoupled from the Emergencies Act. The definition of threats to the security of Canada, either renewed or not, is appropriately very precise and very narrow for a security intelligence agency. The last thing we need is an open-ended definition that would allow CSIS more flexibility than it needs. I think security intelligence agencies, with very, very extensive powers of investigation, intrusive powers of investigation, need to be constrained. I sometimes think they're already too constrained, but that's for another time. But what this has to do with the declaration of a Public Order Emergency escapes me entirely. I think the preoccupation with the various things that Kent listed, infrastructure, cyber issues, and the economy, are quite realistic preoccupations in a Public Order Emergency context, not necessarily, if at all, in the same way under the CSIS Act. So I would totally decouple the two, and I would broaden the definition being given to a Public Order Emergency, and either perhaps expand the one given to the CSIS Act slightly, but still remember that a security intelligence agency needs more constraints than a declaration of an emergency by the federal -- by the Governor in Council. Leah raised one issue that I think is important in all of this, and that's the changing view that we have to the right to privacy, you know, the reasonable expectation of privacy. I think it's changed since 1985, and it's one of the things that preoccupies a lot of people in CSIS because they worry the instant they come up against this whether the barrier or the threshold, however you want to call it, is reasonable or not. And I would say that under the CSIS Act the right to privacy is pretty important. When you're talking about a Public Order Emergency, privacy still remains important, but I think it's less important if you're really talking about, you know, significant threats to public order. And so I would include the definitions of -- I would include somewhere in the Emergencies Act a way of addressing the right to privacy, such that it is separated for that -- in the way that that right is set out in the Privacy Act and the way how it's used by other entities in the Federal Government. So I think I'll stop there and give Kent a bit more time, but I just stress my meta-issue here is the Emergencies Act should have no reference whatsoever to the CSIS Act. They're two entirely different things, and whatever motivated Parliament at the time, since 1985 a lot of things have changed, and we should recognise that. Thanks, Kent.

Volume 34 (November 30, 2022), page 57 34-057-28

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. Much appreciated. Professor West, same sort of question. So modernisation of CSIS threats; decoupling, good or bad idea;, and how Public Order Emergency ought to be defined if there is decoupling?

Volume 34 (November 30, 2022), page 60 34-060-03

Leah West, Prof. (International Affairs – Carleton University)

Sure. So on the should the threat of the security of Canada be changed, as I mentioned in my Opening Statement, I'm uncertain that what happened qualifies as threat to the security, as defined in the CSIS Act, and so to suggest that it did, by definition, as it's clearly written in the CSIS Act is inadequate. To (inaudible) activities I would argue is to accept that perhaps the legal threshold wasn't met. I think the question of whether the CSIS Act ought to be modernised is the important one, and I would tend to agree that it does, but like I said earlier, I don't think the facts of what took place this year or the Commission is the place for that discussion. I think the role of this Commission is to honestly assess what went wrong, and respectfully, I don't think the cause of prolonged blockades in Ottawa or at our borders was because the CSIS Act doesn't adequately capture those activities. In my opinion, the Commission should identify the reasons why protesters were able to establish blockades, what challenges law enforcement had in ending them, and make recommendations according to that, rather than suggest ways to make it easier for the Executive to invoke the Emergencies Act. On the second question, of should the definition of Public Order Emergency be tied to the CSIS Act, yes and no. Currently, as Dick mentioned, what currently falls under the heading of a Public Order Emergency is an emergency caused by a national security threat actor, it doesn't really capture public order disturbances. So if Parliament is of the view that what we want to be able -- we want to be able to invoke the Emergencies Act to respond to Public Order Emergencies caused by unlawful protest, blockades, and interference with critical infrastructure, then I believe the entire section of that Act needs to be rewritten for that specific purpose. Not only do we need to change the triggers, but the powers and authorities available to the Executive once a public emergency is invoked. Alternatively, the Government could introduce separate legislation to create new offences and new police powers and prevention orders related to the protection of critical infrastructure and the maintenance of public order. The UK Government has recently introduced a piece of legislation that does just that, it's the Public Order Bill, and it's currently committee in the House of Lords. That said, I suspect Parliament will still want to ensure that emergencies arising from threats of terrorism, espionage, sabotage, foreign interference and subversion can be addressed through the Emergencies Act, and in that case, I would not recommend decoupling the definition from the CSIS Act. These threats are already difficult for the public to assess, let alone identify. Canadians can see the effects of a flood, a pandemic and a blockade in a war. Images and stories of those impacts fly across the country in real time. But espionage, covert efforts to overthrow the Government or influence our democratic processes, terrorist -- foiled terrorist plots? Often the only one that has the knowledge of those threats will be Canada's intelligence and law enforcement agencies. Moreover, the target of these threats is in most cases is going to be the Government itself. So we have potential for an unseen threat against those with the power to invoke the Act, coupled with the fact that any such decision to invoke it will be given significant deference, and the intelligence used as the basis for that decision can be withheld on Cabinet and national security privilege grounds, although not in this case. But this section of the Emergencies Act, and if we want to protect emergencies from them, is already ripe for abuse. Tying the invocation of the emergencies, of the emergency, excuse me, tying the invocation of an emergency caused from those types of threats to the CSIS Act in my opinion creates some level of objectivity to the legal test. The definition there is one that is routinely applied, understood, and subject to lots of review, as we've heard, and the whole point of including it in the EA was to eliminate questions about what does and does not amount to a national security threat that could trigger the EA, and I'm talking about threats from terrorism, subversion, espionage, et cetera. Using some novel or wider definition that would capture those threats, I think would render essentially a legal threshold meaningless. Thank you.

Volume 34 (November 30, 2022), page 60 34-060-09

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. I'll turn to Ward Elcock now. Same two questions. The one thing I'll just remind everyone is if there was decoupling do you have any thoughts about section 3 of the Emergency Act, which here defines a national emergency as an urgent and critical situation of a temporary nature, and I think we're dealing mostly with (a), seriously endangers lives, health or safety of Canadians, and as such of a proportion or nature as to exceed the capacity or authority of a province to deal with. And then, of course, where CSIS threats to security comes in is in the definition of a public order emergency, which has to meet that first definition that I have read, but also, the section 2 definition. So, Mr. Elcock, could you address, one, CSIS Act, two, Emergency Act, should they be separate or joined in some fashion.

Volume 34 (November 30, 2022), page 63 34-063-02

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Some of the issues that come up here are -- a comment that Dick made suggests to me that I may have been around for too long. I do in fact recall the passage of the emergencies legislation and Dick asked the question what was the driver for it, and in some respects, the driver at the time was constitutional discussions with Quebec in which the issue of the War Measures Act was an irritant. And as much as anything, the driver for moving the emergencies legislation forward was the need to get that irritant off the table in the context of those constitutional issues. And that was, as I'm sure some of the people in the room will recall, was a time of considerable constitutional ferment. It was a very difficult period. I think that was the driver, and obviously, they were looking for a fast solution to the definition of an emergency, and they were at an earlier time before a lot of other issues, before 9/11, before our economy became closely interlinked with the United States and the consequences of border closures became a huge issue as they did with 9/11, although why they left out things like national disasters, I'm not quite sure. But I think the definition was too narrow, but I think it was a quick fix. I agree with Dick entirely that there is -- there's no connection between the CSIS Act really -- a real connection between the CSIS Act and the Emergencies Act. There not -- need not be any close connection between the two. I think if one were to move to amend the definition and preserve the connection with the CSIS Act, and I think the Emergencies Act definition needs to be broadened to cover things like potentially economic issues, like potentially economic disasters, what will climate change mean, what would an earthquake in British Columbia that takes a good chunk of British Columbia out to the ocean mean in terms of disaster and a necessity of the federal government taking some action under some authority. Clearly, there are things that people need to think about. I don't have any particular advice on what are the sensible -- what are the things that should be added at this point, but I think they do need to be broadened. If those things were to be imported into the CSIS Act definition and retained in the CSIS Act, that some of those would have consequences for CSIS that I think are well beyond the purview of this Commission. So as Dick said, I think it would be a great -- I think that it will be really important, and as I said at the beginning of this, to separate the definition in the Emergencies Act from the CSIS Act, particularly if there's any contemplation, as there should be, to change the definition and broaden it. It makes no sense to have the connection -- to preserve that connection between the CSIS Act and the Emergencies Act, in my mind.

Volume 34 (November 30, 2022), page 63 34-063-18

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. So we now have two former directors of CSIS saying decouple. That may or may not be related to Mr. Fadden's admonition that intelligence should be policy neutral. We have Professor West saying that there are some connections. So, Professor Wark, where are you on this continuum?

Volume 34 (November 30, 2022), page 65 34-065-12

Wesley Wark, Senior Fellow (CIGI)

So I get to play cleanup here as the only non-lawyer on this panel. So I thought actually we were all going to agree. I thought we were all going to agree that the CSIS Act definition of threats to the security of Canada performs a different purpose than anything that we would want to see in the Emergencies Act. And so I'm going to go to that decoupling argument in a minute, but the first thing I would say is that I suspect there's widespread agreement that the CSIS Act itself needs modernisation. And the Commissioner may decide that that is not central to the scope of his work, but any encouragement he could give in that direction I think would be welcome. And, of course, it is an idea that has already been floated numerous times by the CSIS Director and indeed by the Minister of Public Safety. So there is a lot of work to be done to modernise the CSIS Act passed in 1984 and passed in 2 contexts, which are I don't think any longer relevant. One context was scandal, the other context was the Cold War. But the first argument I'm going to make about now focussing on modernisation of the Emergencies Act, and this is maybe a little bit out of scope, so I'll be very brief about it, but while I recognize that there could be public welfare emergencies, I actually think that part of the Emergencies Act should be dropped, because I don't think it is ever going to be usable in the context of a federated system. I also think the international and war emergency parts could be consolidated into one. This would leave a slim-down Emergencies Act with just two branches, and one of which would be a public order emergency. The second argument I would make is that there will be a need for a definition of threats to the security of Canada to be included in a public order emergency. Just again, in my view, that should be uncoupled from a modernised CSIS Act. And such a definition of threats to the security of Canada would also need to be involved in a consolidated international war emergency crunch. The -- I think certainly as I've learned, the Emergencies Act serves a different and wider purpose than the CSIS Act. It involves a different set of decision makers. As we move to considering how to reframe a definition of threats to the security of Canada in an Emergencies Act, I think it will be important to include explicit references to cyber threats, to threats to democracy, to replace old-fashioned concepts about subversion, investigations of which CSIS for understandable historical reasons is very loath to undertake, economic security threats and critical infrastructure threats. Now there are elements of the old CSIS section 2 threshold that I think would be just inappropriate to carry over into a modernised definition of security thresholds in the Emergencies Act. References to espionage, 2(a), however pervasive espionage might be, continues to be, might become in the future. I find it hard to imagine that it would ever amount to a public order emergency. I also find it hard to imagine that threats of foreign interference, the current CSIS section 2(b) clause, short of war in international crisis again would ever amount to a public order emergency. So I think we can tighten the thresholds as we build them. Ideologically motivated violent extremism is a component of a recently defined lexicon of extremist threats, and in my view, should not be directly incorporated in a public order emergency definition including the security threshold. Threats to property needs to be properly defined, modernised in references again to -- in reference, excuse me, to economic security and critical infrastructure protection as opposed to the kind of classic terrorist-oriented concern about things going boom. So as we revamp the Emergencies Act, I think we need to add new elements and remove old ones. But as a final thought, excuse me, three perhaps very obvious points. One is that Charter compliance has to be key. The procedural safeguards built into the original Emergencies Act must be maintained, and I think many of them, from my perspective, were brilliant. I would encourage one possible change, and that would be to think about passing the parliamentary review baton to the National Security Intelligence Committee of Parliamentarians, which of course did not exist when the original Emergencies Act was passed. And there are reasons for that that I would be happy to discuss. But whatever the outcome, and I think we will agree on this panel about this, and I suspect the public will agree more broadly, whatever the outcome of a modernized Emergencies Act, it must not be to make the Emergencies Act any easier to use, not one iota easier to use, or to make it anything other than a last resort. So thank you.

Volume 34 (November 30, 2022), page 65 34-065-18

Kent Roach, Prof. (Law – University of Toronto)

Well thank you all for accommodating the changes. I think we’ve heard a lot here. We’ve heard a lot about the need for coordination, both within the Federal Government, the NSA needing staff on the domestic side, and having new staff from the foreign side. We’ve heard the arresting statement, I think it was by Professor Wark, that the NSA heard about the Coutts arrest on the media. We’ve heard both for and against issues of the utility of policy, efficacy- based reviews. We’ve heard a lot about intelligence being policy neutral. And we’ve also heard about the danger of both overusing the 2(c) terrorism mandate and making emergencies too easy to declare. So given that we have eight minutes, I would give each of the panelists the last two minutes, if they have anything else, or if there’s something that one of their fellow panelists said that they would particularly like to agree or disagree with? And then after the break, other people will be asking those questions. So Professor West?

Volume 34 (November 30, 2022), page 68 34-068-21

Leah West, Prof. (International Affairs – Carleton University)

Okay. Well I wasn’t expecting that. I’m going to take this opportunity to be nerdy about the Emergencies Act law for a minute, if you indulge me, Commissioner. So Roberts v Canada, a decision in 1989 of the Supreme Court of Canada interpreted the phrase “any other law of Canada” as it’s used in section 101 of the Constitution, and held that it includes either federal statute or federal common- law. Typically federal legislation uses the term “any other law of Canada, or a province, or any other law”, if it’s used to denote wider application than just federal statute and common-law. And I would say that we’ve heard different types of interpretations of that phrase put before you and since the Act was invoked. And I would say that this more narrow reading of that is actually more consistent with the definition of national emergency in the Emergencies Act. And if you look to Part A, it already stipulates that an emergency has to be beyond the authority of a province, and it would be redundant to require that an emergency be both beyond the authority of province, and also require that it not be effectively dealt with under any law of a province. And as you’re aware, and your counsel is aware, there is an interpretative presumption against redundancy. And Part B of the definition already considers matters that fall outside of provincial jurisdiction, so it wouldn’t be subject to resolution through provincial law in the first place. So once Cabinet has determined that there is a national emergency under A or B, and it’s so therefore beyond the authority of a province, the question is simply whether there are federal legislative authorities that it can rely on to deal with the emergency. Now, I don’t think this actually changes the facts that Cabinet needs to establish in order to meet the legal threshold, but I do think that there’s been a lack of clarity around this element of the definition, and I wanted to take this opportunity to try to clear it up.

Volume 34 (November 30, 2022), page 69 34-069-12

Kent Roach, Prof. (Law – University of Toronto)

Well as a fellow statutory interpretation nerd, Professor West, thank you very much. Mr. Fadden?

Volume 34 (November 30, 2022), page 70 34-070-25

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Just a couple of points that either I made or have not made and my colleagues have made, one of which is the importance of judgement in all of this and the invocation of the Emergencies Act. I think the government’s judgement has already been sustained by the House of Commons, and in our system of government, that’s final. I can remember being told of a story arising out of the United Kingdom Parliament, where a Home Secretary was being harassed for some reason or other by the opposition, and he finally stood up and said, “Her Majesty’s Government is preoccupied with the defence of the realm and public order. If you do not agree with how we’re dealing with it, case us out.” I’m not advocating that position here today, nor with the U.K., but there has to be something in the political judgement that is sustained or not by Parliament not to -- I actually think, despite my criticism of reviews and what not, that this Commission is very useful. But I think in the end, the political judgement of the government has been sustained, whatever you conclude on the law. The threat definition. I just wanted to add one element that we haven’t talked about, which I take from international law, which is control the borders. You know, we lost control of our border, whether we like it or not. And I just wonder if something like that shouldn’t be included in some of the definitions. Also, the element of apprehended violence, which the Prime Minister pushed a fair bit in his conversations. There’s a real difference between violence occurring and apprehension of violence, and surely one of the objectives of government, writ large, is to avoid violence, if they can. So I just have that. Next to last though, I think a lot of the issues that we’ve all talked about do not necessarily involve legislative change. They involve policy change or cultural change. And those of us who have worked in the government will know that sometimes cultural change is harder to get than is legislative change. So I would commend to you, Commissioner, the importance of emphasizing that just because the law has changed doesn’t mean things will change on the ground very quickly, if at all. And lastly, this may seem like a strange point to make, but I’m going to make it anyway. Government, by definition, is very messy. And we all try, in our different ways, to make it less messy, with definitions, and criteria, and processes, and what not. And I think, as you work your way through everything that you’ve heard, an acknowledgement that democracy requires some messiness would not necessarily be a bad thing. You can’t have a democracy with preoccupations about transparency, and rules, and different people doing different things, without some degree of messiness, which I don’t think is ever going to go away. So I think we just have to acknowledge it and try and l'encadrer, as they say in French, as much as you possibly can. So I’ll stop there. Thanks, Kent.

Volume 34 (November 30, 2022), page 70 34-070-28

Kent Roach, Prof. (Law – University of Toronto)

Thank you, Mr. Fadden. I’m going to henceforth refer to my office as democratic. Professor Wark?

Volume 34 (November 30, 2022), page 72 34-072-28

Wesley Wark, Senior Fellow (CIGI)

Kent, thanks very much. Let me begin just by relaying an experience I had with regard to the Public Order Emergency Commission. So I turned up on Friday morning, that foggy, slightly miserable morning, to hear the Prime Minister. And while we were waiting at the entrance, I decided to sort of don my amateur journalist hat and I just asked people that were waiting in line with me why they were there. There were lots of different reasons, but the common theme was that those folks from all kinds of backgrounds, and some from considerable distances away were there because they felt that this was a historic moment. And certainly it was a historic moment to hear the Prime Minister testify, but I think more broadly, the work of the Commission is itself a historic moment. It’s the closest thing that I think we’ve had in terms of examining a national security crisis since the McDonald Commission. And I appreciate that the work ahead is going to be very, very challenging. But I want to make two points, they’re really related, in closing. And one is just to ask this question. How can you have effective national security policies and institutions without a clear definition of what you mean by national security? We do not have that definition either in law or in any kind of common understanding in this country. And this is something, again, that was pointed out by the National Security Intelligence Advisor. And the second point I would make is that how can you have effective institutions and laws without any clear policy guidance? We have no national security strategy. We are unique among our Five Eyes partners in that deficiency. The last national -- I’m making Ward wiggle here. The last national security policy was issued, as counsel and the Commissioner know, in April 2004 and it has never been upgraded or modernized, and it’s a challenge to find it even, archivally. I think, and encourage the Commissioner to the extent that he feels it’s in the scope of his report, that we need to draw attention to these two key lacuna, the lack of a definition and understanding of what national security is for the government, for Canadians, for all levels of government, and the lack of any policy guidance whatsoever. Thank you.

Volume 34 (November 30, 2022), page 73 34-073-03

Kent Roach, Prof. (Law – University of Toronto)

Once again, Mr. Elcock, you're the cleanup hitter.

Volume 34 (November 30, 2022), page 74 34-074-18

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Yeah. I agree with Professor West, since she raised that comment. I share her view with respect to the issue of any other law of Canada and how it ought to be interpreted. I agree with that Dick said. I don't entirely agree with Professor Wark. Again, I love strategies as much as the next person. I would remind people that the original strategy, which was published in -- just after 9/11 or shortly after 9/11, was as much as anything not about national security policy, but was more about ensuring that our neighbours to the south knew that we were actually engaged and doing something. We also changed the title of the Coordinator for Security and Intelligence because all of us had gotten tired of going to Washington and trying to explain to people what a Coordinator was to the Director of the CIA. I suspect Dick had the same problems I did. I'm not sure that a strategy is the issue extant. I think the issue is to go back to something that Dick said earlier, and with which I agree and I expressed the same view, national security is not perceived as a central issue in this country for a variety of reasons. I participated this year, and as Dick did as well, I two exercises to look at national security problems in Canada, and in every single one of those we struggled with how do you encourage people with the idea of -- with the question of how do you encourage people to pay more attention to national security, care about national security. I'm not sure a study does it. I'm not sure a strategy does it. I don't have an easy answer to how to accomplish that, but I think that many of the problems that we have talked about here or are being talked about here would fall by the wayside if we actually had governments and a population which cared about national security regardless of whether we did a strategy or did a statement or whatever. But I'm not sure how to get there. I think the other problem, frankly, that we all struggled with in those two exercises is how do you define national security? And I do not think in either of those exercises we reached a real conclusion about what an acceptable or agreed definition of national security was. I think that to some extent that's kind of a wild goose chase, diving -- or diving down the rabbit hole, whichever metaphor you want to use, that actually probably achieves not very much in the process.

Volume 34 (November 30, 2022), page 74 34-074-20

Kent Roach, Prof. (Law – University of Toronto)

My sincere thanks to all the panelists. And Mr. Commissioner, I hope that that is of some assistance to you.

Volume 34 (November 30, 2022), page 76 34-076-04

Kent Roach, Prof. (Law – University of Toronto)

Okay. Thank you. So before the break, there was a consensus that CSIS's approach to threats to security of Canada is not necessarily determinative. I would ask Dick Fadden and then Ward Elcock to talk to us, based on their experiences, about some of the other inputs that would go through Cabinet, PCO, and the like in determining whether the threshold for a Public Order Emergency has been met. So Mr. Fadden?

Volume 34 (November 30, 2022), page 76 34-076-19

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Can I suggest that Ward start because we're always making him last, and I don't think it's fair. (LAUGHTER)

Volume 34 (November 30, 2022), page 76 34-076-28

Kent Roach, Prof. (Law – University of Toronto)

Fair enough. Okay. Mr. Elcock?

Volume 34 (November 30, 2022), page 77 34-077-04

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Then I can rely on you to answer the question first. Can you repeat the question because I was expecting Dick to deal with it.

Volume 34 (November 30, 2022), page 77 34-077-06

Kent Roach, Prof. (Law – University of Toronto)

Sure. Sure. So can you tell us about some of the factors other than CSIS's determination of whether there was a threat to security of Canada that would go to Cabinet in determining whether there was a national order emergency?

Volume 34 (November 30, 2022), page 77 34-077-10

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

The other sources, to be, I guess to be specific if that answers the question, I think the key one would be a point that Dick made earlier, which is that it is the judgement of ministers. I mean, the reason we have a Cabinet is for them to have a discussion about a range of issues and exercise their judgement on all of that -- those issues as a result of that discussion and come to a conclusion. We go through a long process to elect MPs to become Cabinet ministers to become part of Cabinet, that's a pretty important part of our process. Having said that, what feeds into that process, the advice of the Attorney General, the Department of Justice, there will be as well pieces of advice from a variety of parts of PCO that go to the Prime Minister and some other ministers. Other departments will have provided advice to their minister on the basis of their participation at some level in the events. Different departments will have more capacity, others will have less, but there will be a whole range of things that will before ministers, quite apart from whatever ministers -- whoever else ministers are listening to, their perception of events in Canada. Their conversations with their -- with electors, with people in their ridings. There are a whole range of things that ministers will have in their minds and before them as they go through these discussions, but again, as Dick said, it's the issue of judgement that they're there to exercise, that's why we elect them, that's why they get appointed to Cabinet, and hopefully they'll exercise that judgement as part of that responsibility.

Volume 34 (November 30, 2022), page 77 34-077-15

Kent Roach, Prof. (Law – University of Toronto)

Thank you. Final word to Mr. Fadden on this question.

Volume 34 (November 30, 2022), page 78 34-078-14

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Thanks. I agree with what Ward was saying. The only thing I would add is the practical reality of the Prime Minister and minister listening to their political staff. I mean, public servants always say this is not a great thing because they're not subject matter experts, but inevitably, almost always the last people the ministers and prime ministers will talk to are their political staff. I tend to think that if they don't try and set themselves up as subject matter experts there's no harm in that, but what they do bring I think is the operating philosophy and values of a particular political party, and there's nothing wrong with that. I mean, if Mr. Poilievre had been prime minister as opposed to Mr. Trudeau I think some of the decisions would have been differently. There's nothing inherently wrong with that because they bring an operating construct that's different and their political staffs often push that forward. I guess lastly is I wouldn't underestimate the importance of the media in all of this. I mean, if ministers and the Prime Minister are connected to anything, it's on what the media is saying, and that has a not insignificant influence, I think. Thanks.

Volume 34 (November 30, 2022), page 78 34-078-16

Kent Roach, Prof. (Law – University of Toronto)

Professor West, you suggested that we should have an open source mandate, but that it shouldn't be in CSIS or Public Safety. Could you elaborate on where you think it should be or whether a new agency of some sort should be created?

Volume 34 (November 30, 2022), page 79 34-079-10

Leah West, Prof. (International Affairs – Carleton University)

Well, that is the million dollar question, I think. And I -- as someone coming from a -- someone with a strong civil libertarian streak in me, I would like to see it be an organisation that is not directly tied into security intelligence because of the power of social media monitoring and assessment. And what we're looking at, when you think about what you're looking at when you're assessing social media is not necessarily reality. There are a lot of augmentation, there's a lot of, you know, bots pushing things, there's a lot of people saying things that they would never act on or ever really say out loud in public. And so as a real strong source of intelligence that's credible and reliable, there is, you know, inherent difficulties in anything that you're just getting when you look, at a broad sense, at social media. But it is important to get a sense of political movements and political grievances and, you know, the scope of anger around certain issues and whether that has the possibility to, you know, be unleashed as violence, you know, and to get a sense of the social concerns of Canadians, especially when they may pose a risk to public order and national security. So I think there is a good use for it, but it is a very different type of intelligence than what I think, you know, we want CSIS to be relying on, but it can help narrow the focus of our security intelligence agencies on potential areas of concern. So I think there’s a use for it, but because of the concerns about it, and because of the sheer fact that you really are monitoring people’s conversations, right, their free expression and their exercise of that online, we have to be really careful about who has the responsibility for monitoring that. And so that’s why I think a public facing organization that is not a security or intelligence organization, but is an organization that is responsible for understanding public discourse and potential threats to -- threats arising from disinformation or understanding trends that are happening online, and then sharing that publicly with Canadians, rather than just simply sharing it with CSIS, right, would be very helpful. Clearly if an organization like that were to come across very highly threat related type of analysis, you know, we already have capacity for information sharing between agencies of that kind under the Privacy Act and under SCIA. So I would envelop it under that. But I think it’s more important that Canadians have an understanding of what’s happening, because we do get such a siloed interpretation of what’s happening. So having some sort of arm’s length public facing body that can take a scan of the pulse of Canada and talk about these really important issues, or at least put them forward and then identify where there’s some disinformation happening could also be a really useful tool. And so maybe that’s a place for something associated with Heritage Canada, because it’s taking up that mantle. But I just -- I do have a hesitancy to say that that type of intelligence analysis should be resident within a solely public safety or one of its portfolio agencies.

Volume 34 (November 30, 2022), page 79 34-079-15

Kent Roach, Prof. (Law – University of Toronto)

Thank you. Your thoughts briefly, Professor Wark?

Volume 34 (November 30, 2022), page 81 34-081-17

Wesley Wark, Senior Fellow (CIGI)

Kent, thanks. First of all, just to emphasize just how important open-source intelligence is for the national security intelligence system. And the way we do it at the moment I think is far too diffused, and siloed, and fractured. I think there is a need for a central organization that is responsible for open-source collection, and especially analysis. And I’m thinking about Professor West’s comments. I think it should be public facing to a degree. But I think it is only going to be truly useful if it is within a place within the national security and intelligence community. I would not put it in CSIS. The CSIS director has made it clear he doesn’t want it there. The obvious home for it is the Privy Council Office, operating alongside the Intelligence Assessment Secretariat, and to a certain extent, connected to the Intelligence Assessment Secretariat. But to address, you know, concerns about what we might broadly call democratic legitimacy, which I think is a real concern that Professor West has raised, its mandate would have to be very clear, it would have to be accountability mechanisms, and there would have to be real transparency about its work so that Canadians could be reassured that what it was doing was lawful, that what it was doing was in the public interest and serving national security. So it certainly couldn’t be built and hidden away. I’m not saying it needs to be created through statute, I’m not sure that would be a good idea, but in order to be useful, it does have to be in the national security intelligence system, and providing that open-source intelligence product to decision makers so that they can exercise, as Dick has said, their judgement.

Volume 34 (November 30, 2022), page 81 34-081-19

Kent Roach, Prof. (Law – University of Toronto)

Okay. Back to Professor West. Both you and myself have talked a little bit about police intelligence. And we’ve heard the issue of the origins of Operation Hendon in collecting intelligence about various Indigenous protests. And of course, there are distinct concerns about the monitoring of Indigenous protest. I wonder what you could say about, on the one hand, the evidence that the Commissioner has heard or the submissions that there is this deficit, a structural deficit in supplying intelligence that may be, in some ways, easier for the police to supply, than security agencies that are concerned about sources and methods, and on the other hand, the threats to civil liberties in downloading that intelligence collection to the police, the threats to both civil liberties and Indigenous rights?

Volume 34 (November 30, 2022), page 82 34-082-23

Leah West, Prof. (International Affairs – Carleton University)

Well I think the history of why we have CSIS exemplifies that risk, is understanding the difference between potential threats to the security of Canada and actual criminal offences, and where the line to be drawn is when you’re collecting intelligence. Again, obviously there is some level of proactive police -- law enforcement intelligence; right? But for the most part, it should be reactive. You can be proactive in assessing past trends; right? So if you are thinking about where crime is most likely to occur, you can look at past trends and think proactively about where you might see crime into the future. But it shouldn’t be about crimes that have yet to manifest entirely, and potential individuals who have not yet started to take the action towards criminal offences. And so figuring out that line when you’re talking about ideologically motivated extremism versus ideologically motivated violent extremism is particularly challenging. One is illegal. The other one is not. And so I have strong concerns about downloading that responsibility to law enforcement, whose job it is to investigate crime with an eye towards criminal prosecutions, not advise the Government of Canada about potential threats. And I think especially with IMVE, figuring out where that line is is really challenging and I hesitate that we wouldn’t get into a situation where we err on the side of caution when collecting intelligence about potential IMVE actors.

Volume 34 (November 30, 2022), page 83 34-083-10

Kent Roach, Prof. (Law – University of Toronto)

Okay. So Mr. Fadden, you’ve suggested to the Commissioner that we need a kind of national collection of intelligence. What about this danger in the context of IMVE, Indigenous protests that Professor West has spoken about? Is there a danger that while CSIS may be too circumscribed, it could be a bit of the wild west when it comes to provincial and municipal police deciding where the line between extremism and violent extremism, or wherever the line is? So how would civil liberties and Indigenous rights be protected, in your understanding of a kind of national clearing centre that would include municipal and provincial police intelligence, as well as the federal products?

Volume 34 (November 30, 2022), page 84 34-084-09

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Well I understand, and I guess accept some of the concerns that you’ve just listed. But I have a problem with the underlying premise that provinces and municipalities are children in our system of government. I think they have challenges and difficulties, much like the Federal Government has. So if we were going down the path that I was suggesting, I think you’d need a fairly clearly articulated framework with criteria and objectives about how things were to be done. And I’m not suggesting, as well, that every municipality in Canada be instantaneously involved in this. But, you know, you start off with a pilot, the Federal Government and, I don’t know, Ontario, or in Quebec, or B.C. And then a couple of municipalities. And if it doesn’t work, you disengage. But I think one of the difficulties in the national security area generally are people are afraid to try anything new, for a whole variety of reasons. Some I would consider good; some I would consider bad. But I do think that you raise a reasonable concern, and I think that it should be taken into account if we go that route. And Mr. Elcock said in response to my comments that he wasn’t convinced that national coordination was any better than federal coordination, and he may well be right, but somehow we have to find a way of involving these other levels.

Volume 34 (November 30, 2022), page 84 34-084-21

Kent Roach, Prof. (Law – University of Toronto)

No. Thank you very much. So we’ve also heard about -- and this has come up in the hearings -- a lack of a definition of “national security”. Are there international or other models that we should look to? Professor Wark?

Volume 34 (November 30, 2022), page 85 34-085-20

Wesley Wark, Senior Fellow (CIGI)

Thanks very much. There are, and I suppose it’s important to say where we find them because it -- that intersects with other arguments, at least, that I’ve made. Generally where you’ll find definitions or concepts of national security are in national security strategies, which all of our five Is partners have in one form or another and tend to keep up to date, most regularly in the context of the United States. And the importance of having these definitions is partly to guide policy, it’s partly to align with law and lawful authorities, but it is principally in terms of public education. And the point that’s been made by many of my colleagues, and I agree with entirely, is that one of the challenges for Canada is that national security is not taken seriously either at the political level or at the public level. I would make the argument that that is going to change dramatically as the threat environment changes, but it is important, I think, to try and help the public understand what the meaning of national security is, what the threats might be, what the response capability of different levels of government might be and to outline that both as a piece of public education and as national security policy guidance for the government. So this is a little bit different than simply giving academics something to write about. This is a serious mission, I would say. And what is -- and Ward is absolutely right referring to the two projects that were undertaken recently with regard to thinking about national security strategy. It is very difficult to define what we mean by national security, but it’s a worthwhile enterprise because what it does has to do and does do, I think, in other doctrines adopted by our allies, is to align a concept of national security with the public interest, in other words, to spell out why should this matter for ordinary Canadians. And so the models are there. In the best Canadian practice when it comes to national security, as my colleagues will know, we can adopt those models as a late responder, study them and think about them. But I think the idea is just so important.

Volume 34 (November 30, 2022), page 85 34-085-26

Kent Roach, Prof. (Law – University of Toronto)

Mr. Elcock, could you weigh in on whether we need a definition of “national security” and where we should get one?

Volume 34 (November 30, 2022), page 87 34-087-10

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I think the issue of a national security definition, I mean, it’s -- as I said earlier it’s really hard to come to an agreed definition on national security, not an easy discussion. I think borrowing from abroad, I think you have to be careful when you’re borrowing from abroad because definitions of national security almost inherently reflect the circumstances of the country where that definition is developed, and so you want to be careful that you’re not buying yourself problems or issues that, actually, you don’t want to. So choosing a definition, I’m not sure that I would import a definition from a foreign country. I think it’s a question of informing oneself about possible definitions and coming to a conclusion. Whether it’s wise for the Commission to come to a conclusion about a definition of national security, I think that that probably is ultimately a better -- that Parliament is probably the ultimate decider of what the definition should be and I think if the Commission were to come to a conclusion about what the definition was, that would probably freeze the issue in terms of how government saw it going forward, and that may not be the right -- the right course of action. But ultimately, there will have -- a definition is not a bad thing. It’s a question more of how you arrive at that definition than whether or not there should or shouldn’t be one.

Volume 34 (November 30, 2022), page 87 34-087-13

Kent Roach, Prof. (Law – University of Toronto)

Thank you very much. And of course, as one of the parties has raised, if there was a legislative definition that might involve consideration of Canada’s obligations under the United Nations Declaration of Indigenous People. I have one specific question and then one more general question which I think we can end up. So Professor Wark, you suggested that in looking ta accountability mechanisms -- and there will be another panel that looks at accountability -- that it makes sense for the National Security Committee of Parliamentarians as opposed to the Joint Committee, which is currently looking at this, to play a review function. Could you elaborate on that?

Volume 34 (November 30, 2022), page 88 34-088-11

Wesley Wark, Senior Fellow (CIGI)

Sure, Kent. Happy to do so. And the reason I point to the National Security Intelligence Committee of Parliamentarians as possibly the body that could act on Parliament’s behalf to conduct a Parliamentary review, really, is threefold. One is that the National Security Intelligence Committee of Parliamentarians has, in my view today, proven itself in terms of the kinds of reports it’s done. A second point is that the National Security Intelligence Committee of Parliamentarians throughout its history -- and it’s gone through, you know, many different members from different political parties, the House and the Senate, has always adopted and sustained a non-partisan approach to national security issues which, of course, you will not find in a Parliamentary committee. The third is that the National Security Intelligence Committee of Parliamentarians, as I think you’ve referenced, has wide access to classified information and classified briefings not available to an ordinary Parliamentary Committee. And finally, unlike an ordinary Parliamentary Committee, the National Security Committee of Parliamentarians - - sorry to keep, you know, not using the acronym -- has a dedicated secretariat research staff, which is, in my view, highly professional, highly competent and capable of being the kind of engine room for a study that it might conduct. So I think there are a lot of advantages to putting it there. Would Parliament accept that? I’m not sure. There are different views among parties about the legitimacy of the National Security Intelligence Committee of Parliamentarians, and we’ve seen that played out. But in my mind, it would be the ideal solution.

Volume 34 (November 30, 2022), page 88 34-088-25

Kent Roach, Prof. (Law – University of Toronto)

Professor West, I’m going to spring this on you because you’re the author of the leading text on national security law. What, if any, role should the NSIRA, the National Security Intelligence Review Agency, should that be built into amendments to the Emergency Act? And I’m thinking in particular, of course, that NSIRA has jurisdiction to see the legal advice that -- in relevant investigations that the government acts upon and this Inquiry has not seen the legal advice that was given to the government.

Volume 34 (November 30, 2022), page 90 34-090-02

Leah West, Prof. (International Affairs – Carleton University)

I don’t think NSIRA should have a role here, and I -- I’ll step back and say I tend to agree that in terms of whether or not Canadians accept the position put forward by the Government of Canada, Parliament has already had to speak on that issue and I don’t know that having a detailed analysis of the actual legal opinion by a separate body will really advance anything. I think this Commission has its own purposes and it’ll do its work and it should be left to do its work and not have a separate agency doing something on the side. I will, however, push back on -- and also, NSIRA’s just not really structurally set up for that. NSICOP, I agree with all of the benefits of NSICOP be the ones to conduct the Parliamentary review. However, there are serious deficits with it as it is currently structured as a body of Parliamentarians and not a Parliamentary Committee, for example, the inability to compel witnesses or evidence before it. It does not have that capacity. And Ministers, for example, can say, “I’m not going to testify or provide you with that information that you want right now because it continues to be operationally relevant”, which I think when you’re dealing with an ongoing emergency, which is one of their tasks, would be really problematic for the committee. So if we wanted to give it to NSICOP, we would need to make it a full-fledged committee of Parliament, it could not do that function as a committee of Parliamentarians.

Volume 34 (November 30, 2022), page 90 34-090-12

Kent Roach, Prof. (Law – University of Toronto)

Thank you. And last question, open to all: At various times the issue of intelligence failure has been discussed; the Commissioners heard a variety of views. To what extent is that a helpful term; is it influenced by hindsight bias, and do you have any last thoughts you would like to share with the Commission about the issue of intelligence failure? So I’ll start with Mr. Elcock, so he doesn’t go last.

Volume 34 (November 30, 2022), page 91 34-091-11

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Intelligence -- by definition, you have an intelligence failure when you don’t actually provide the information in advance. So in a sense, intelligence failure is something that every director of an intelligence service -- and both Dick and I have done that for a few years, is something you live with all the time. You have probably more intelligence failures than successes. Fortunately, most of them are probably not in the public domain. Having said that, it’s not entirely clear to me here that an intelligence failure is the real issue. I think the reality is that the issues here are much more complicated than an intelligence failure. There was some intelligence that probably should have given the Ottawa Police Service pause for thought. Clearly, analytical capacity failed in some way because that didn’t get transferred through. One can look at the national security agencies and say they should have come up with information, but the reality was it was not a subject that, in their view, rose to the level of national security -- a national security threat, and therefore it probably, apart from some analysis from ITAC or some other assessment agency, would not have -- would not have given rise to the collection of additional information. So whether there’s an intelligence failure here or not, I think is open to question.

Volume 34 (November 30, 2022), page 91 34-091-20

Kent Roach, Prof. (Law – University of Toronto)

Professor Wark, and again briefly.

Volume 34 (November 30, 2022), page 92 34-092-16

Wesley Wark, Senior Fellow (CIGI)

How can I be brief on this, Kent? Thank you, though. Listen, I would say, first of all, discussing intelligence failure is just an inescapable reality. You know, the challenge for the Commissioner, I think, is deciding how real this was; how serious it was, what was the nature of the impact was on the absence of critical pieces of good intelligence, whether it’s early warning intelligence or intelligence, for example, on the fact that slow-rolling convoys might turn into border blockades. And I would also say not only is it an important thing to think about, but it’s out there in the public domain. It is a question that has to be answered because it has been raised in the public domain and in the media; it cannot be avoided. Is it the real issue? You know, I think it is. I guess it just reinforces a point that I made at the beginning; I think that there is a direct link between intelligence failures, policing failures, and the circumstance in which the Cabinet found themselves in a rush of decision-making over a few short days before the Emergencies Act was invoked. And it’s important to remind ourselves that the Incident Response Group was only called for the very first time on February 10th, and the decision to invoke the Emergencies Act was issued on February 14th. That is crisis decision-making in its purest form. And I think it is clear, at least in my mind, from the evidence that we’ve heard, that there was a lot of uncertainty about the threat that was being faced, particularly the future manifestations of that threat. So, yes, intelligence failure is a big issue, and I’ll finish on that, Kent. Thank you.

Volume 34 (November 30, 2022), page 92 34-092-18

Kent Roach, Prof. (Law – University of Toronto)

Thank you. Mr. Fadden?

Volume 34 (November 30, 2022), page 93 34-093-22

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

Thank you. I don’t like the expression, not because I worked in intelligence, and as Ward said, I certainly had my fair share with my colleagues, but I would think of it more than an advance warning failure, because we -- or at least I articulated the view that government was in receipt of information from any number of sources, not just intelligence. And, seemingly, none of these sources, be they from the police or anywhere else, you know, sort of got up and rang the alarm bell. Part of this is, I think, structural; part of it is I think people just couldn’t believe this was going to happen in Canada, which is one of our problem with these issues. But also, in terms of failures, I think it’s important to distinguish between what I would characterize as operational failures; you know, something didn’t happen in the context of, you know, the public order Order, or what might be termed more strategic. I mean, did we have, as a country, a general view of where right-wing extremism was going in its opposition to the COVID mandates or not? I don’t think we did that particularly well. And for that you didn’t need the secret intelligence and the intrusive methods of collection that CSIS have to do. Any number of people cold have done this; some thinktanks could have done this better than was the case. So I think I would -- I would dilute, a bit, your question by saying; were there failures? Absolutely. I’m not sure it was exclusively intelligence; I think we could spread the blame. Also remembering that intelligence is advice; it’s not determinative, and I think sometimes people forget that. Thanks.

Volume 34 (November 30, 2022), page 93 34-093-24

Kent Roach, Prof. (Law – University of Toronto)

Thank you. Professor West.

Volume 34 (November 30, 2022), page 94 34-094-25

Leah West, Prof. (International Affairs – Carleton University)

So I would agree that I -- from what I’ve seen, to me, didn’t seem to be an intelligence failure, but a failure to act on that intelligence. And what we really had was a federalism failure. The Emergencies Act is based on the premise of everyone doing their jobs at the municipal, provincial, and federal levels.

Volume 34 (November 30, 2022), page 94 34-094-27

Richard Fadden, former CSIS Director and National Security Advisor (formerly Government of Canada)

That’s a good point.

Volume 34 (November 30, 2022), page 95 34-095-06

Leah West, Prof. (International Affairs – Carleton University)

And that didn’t happen. I think, to me, that is the biggest failure that we need to take away from this.

Volume 34 (November 30, 2022), page 95 34-095-07

Kent Roach, Prof. (Law – University of Toronto)

Well, thank you very much, and my sincere thanks to the panellists for your patience and brevity. And again, Mr. Commissioner, I hope this is of some use.

Volume 34 (November 30, 2022), page 95 34-095-10

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Commissioner. My name is Michael Williams. I’m a professor in the Graduate School of Public and International Affairs and I will be moderating this panel on the policing of public protests. I’ll keep my remarks very brief. I guess it’s obvious to say that the Ottawa protests, as well as those that took place at the border, provided significant, if not almost unprecedented challenges to the questions of policing public order and public protests in Canada. I think we have a superb panel to examine some of the policing dimensions of this today. The crucial element of this panel is it is designed to be forward looking. That is, we’re not so much interested in precisely what happened. The Commission has been looking into that in extensive detail. We’re very much interested in what we can learn from these events, what kinds of reforms might be useful, what kinds of strategies might be effective, what kinds of lessons in general can we learn for the future in terms of both public capacities for dissent and protest and also for the policing, if necessary, of precisely those kinds of actions of dissent or protest. Because of the breadth and complexity of the issues that are involved, the panel has decided to divide the issue into three different sections. The first we’re going to deal with as a question or a series of issues around policing strategies. The second around questions of interagency collaboration, or lack thereof, cooperation. And the final one, around questions of regulatory legislation or regulatory instruments. I’ve asked each of the panelists to take the lead on this -- on different areas. So I will ask them to come and speak to those areas for about 10 minutes each. And then we will open it up for discussion on that issue for about -- for the remaining period, up to a 35-minute limit, and then we will flip over into the next issue. So without further adieu, let me introduce our panelists. We have four of them in the room with us today and who unfortunately has come down, I believe, with a cough, and is therefore going to come in virtually to us. So the first person I will introduce you to is our virtual panelist, Cal Corley, who is the Chief Executive Officer of the Community Safety Knowledge Alliance. He is followed by Robert Diab, who is a professor in the Faculty of Law at Thompson Rivers University in Kamloops, B.C. We’re also lucky enough to have Bonnie Emerson, Superintendent of Community Engagement of the Winnipeg Police Service. Followed by Colton Fehr, Assistant Professor in the Faculty of Law also at Thompson Rivers University. And finally, Michael Kempa, Associate Professor in the Department of Criminology at the University of Ottawa. I’d like then to turn first to the question of policing strategies and the lessons, the implications, the consequences of the Ottawa protest. Michael, perhaps you could lead us off on that topic?

Volume 34 (November 30, 2022), page 96 34-096-20

Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure. Thank you very much, Commissioner, and all the counsel who are here. I very much appreciate being included. What I wanted to do, essentially, today was some briefer comments on overall strategies for dealing with mass protests and really focus my comments on opportunities for integration, integration planning, some of which are, as yet, under exploited, but where there may be directions for improvement in the future. In an over-sweeping type statement, we can say that the lessons of policing mass protest that were learned at the G20 in Toronto in 2010 were in many ways applied in the mass protests in the Ottawa region, and across Canada for that matter, but the lessons of G20 were, in many ways, not applicable to the nature of protests that we saw this time around. Simply stated, very much the lesson of G20 was to have police work on more of a stand back type strategy of containment, where over a period of time, protests would run their course, dissipate, and ultimately, where an enforcement action may be necessary, it would be on a smaller scale. That type of approach in Ottawa was heavily criticized, as we all know. And we spoke in terms of a new paradigm in protest type, for which many of the lessons of the past do not seem to apply. So in terms of meeting that new challenge, pooling collective knowledge, pooling collective resources is a major issue. And of course, we’ve covered the ground thoroughly that coordination across policing agencies, coordination between police agencies and their civilian oversight bodies, and political overseers is extraordinarily difficult. So the comments that I’ll make, I’ll mostly focus on the framework in Ontario for the reason that Ontario was very much a focus in terms of police coordination for this Commission, but also, very often, what we see in Ontario legislation finds its way into police frameworks across the country over time. So the current reality in Ontario is that police interaction and police governance is ultimately governed by the Police Services Act of 1990. The most recent piece of legislation, 2019’s COPS, the Comprehensive Ontario Police Services Act, of which the Community Safety Act is a part, is as yet unproclaimed. Some of the institutions that are created by that legislation are in sort of semi-operation at the moment, such as the inspector general of policing that we began to learn about the other day in the testimony of Mr. Weatherill. But we’re still waiting on the development of regulations prior to that legislation coming into full effect. So in terms of coordination across agencies and particularly at the level of planning and sharing resources, there are obviously the proactive and reactive dimensions to integration. At the proactive level, it is clear that where police services boards, by the authority of the Police Services Act, 1990, as made clear in the Morden Report, although this is mostly the subject of other panels, do have the authority to ask questions, and even offer input or advice, which chiefs are free to take or leave, on matters of operational planning for most issues, but most especially for major events, what Justice Morden calls “corporate events”, which is to say events that are large enough that the entire police service is implicated in dealing with that particular event. So there is certainly a role for boards working proactively with their chiefs to ask if the possibility, the need to coordinate with other police organizations could be on the table, and perhaps leading that conversation with their chief and linking up through currently the OCPC by the 1990 Police Services Act, and moving forward, that same role, I understand, will be taken over by the Inspector General with the new legislation. My understanding is that the IG would serve as a type of quarterback role for police services boards, with the Solicitor General coordinating messages, offering mostly procedural advice, rather than policy advice, to boards from the Inspector General. Where there’s an anticipation that there might be the need for a major event of resources and coordination, ---

Volume 34 (November 30, 2022), page 98 34-098-23

Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Certainly.

Volume 34 (November 30, 2022), page 101 34-101-22

Michael Kempa, Prof. (Criminology – University of Ottawa)

Certainly. Where there is a need, or there’s an anticipated need for coordination with other police organizations, boards could reach out through the OCPC, or later the IG, to discuss the matter between their chief and the heads of other police organizations and pose questions as to what types of coordination or resources might be needed. In terms of post hoc or reactive coordination, however, there is certainly the possibility of this type of discussion between chiefs, their boards, the OCPC, or IG and other police services within the Police Services Act, but the thresholds for when this might happen and who might lead these conversations is left as an open question in the legislation, which is to say, there’s a lot of ambiguity as to who would drive these particular discussions. So it’s very clear that boards set policy, boards are involved in questioning on operations and offering input the chiefs are free to take or leave, but at the time that a chief of police would indicate to their board that things have gone sideways and they're not capable of providing adequate and effective policing given disturbances associated with a major event, it would fall to the Board or the Chief to approach another police organization, in the case of Ontario, that would be the OPP, seeking for the resources. At the moment, the IG, the Inspector General would be intended as the body that should be notified of this move that a Board and/or their Chief would be making. Where a Chief makes the request directly to the Commissioner of the OPP, the Commissioner of the OPP is obligated to provide support to the OPS, in this case, but it would be within that Commissioner's interpretation of what type of support would be appropriate. Where a Board maybe doesn't agree with their Chief and would be making a request directly to the OPP, for example, the Commissioner of the OPP is not required to necessarily provide support, but if he or she decides that support is necessary, again, it is within their discretion to decide what type of support might be appropriate. This system, while it allows for this type of discussion and coordination, is silent on what exactly the thresholds would be to move the discussion if there's not agreement, for example, between a Chief of Police, a local Chief of Police, municipal, their Board and the OPP in the example of Ontario. So this is to say that our system works well where the stress test or the event is not so difficult to handle that it stresses that particular system, or where there's an alignment of opinion or personalities or priorities of the personalities involved. In other words, if there's good working relationships between Boards, Board heads, Chiefs of Police and Commissioners of the OPP and those who are either on OCPC but more later -- or when the legislation is updated, the Inspector General, it works well where there's agreement between these particular players. What might be suggested though would be a series of thresholds where automatic degrees of either coordination or either transference of decision-making authority might move between organizations depending on the nature of the ask and the nature of the circumstance. So we heard testimony from Commissioner Carrique of the OPP, for example, that there are over 200 requests of the OPP for various forms of assistance over the course of the year. Most of them are quite small in scope and size, and most of them come with very few strings attached on the part of the OPP. As the ask gets larger in terms of number of police officers, the OPP explains that it has a responsibility for influence over what will be done with its resources. And obviously, for reasons of collective agreement of having to ensure the safety of their officers and membership, they want influence over what will be used with their personnel resources. It's been suggested in some of my conversations with police professionals in these organizations that perhaps as the ask increases and the size of officer or resource request increases, the degree of OPP influence would increase in a commensurate way. So for example, and I'm not sure what the thresholds would be, these would be open questions, if a municipal police service was asking for a percentage of officers relative to its own membership in greater of a certain threshold, it would come with automatic integration of OPP involvement in the planning stages. And if that threshold was to increase further to a certain percentage, it may then be an automatic threshold where the OPP would simply take over responsibility for operational planning entirely. The suggestion being that if these were automatic thresholds, and I’m not sure what they would be, this would remove the implication, implied or otherwise, that the municipal police service was in some way failing, and it was just the scope and nature of the operation and the request of the OPP that would dictate their level of influence over planning moving forward. The last thing I'll say is -- before we move on, is simply I've been asked whether the issue of bias within police organizations can influence the execution of their operations. I would say that that is almost certainly the case. We are confident that there was and are across police services in Canada, at minimum, significant levels of sympathies for anti-vaccination movements, as there would be for various political positions moving down to the extremes of the polls, to the extent that the police are drawn from society, they would reflect the attitudes that exist in society. We simply don't know the end at this time. It has not been measured. So what was put to me by a member of OPS, which I thought was very insightful, was they said that less than 10 percent of officers can impact more than 90 percent of operational outcomes, where if you have a small number of officers with sympathies to various causes, it's quite easy for a small number to have an outsized impact on the execution of an operation. So a little bit in the way that the CAF has undertaken measurement of the position of different political ideologies within their ranks, it is a priority area to actually map the N, the size of these sympathies within police organizations. I'll leave it there.

Volume 34 (November 30, 2022), page 101 34-101-24

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Great. Thank you, Michael. I'd like now to turn, please, to Bonnie Emerson.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

I'm just going to start the time. Good morning, or afternoon. Since I'm in Ottawa, I'd like to start by recognizing that I'm on the traditional unceded territory of the Algonquin Anishinaabe people. I'm an Indigenous female, community advocate, and as the reason I believe I was invited here today, a police officer. I share all of these things because they assist in shaping my worldview and they're going to impact what I see and how I react. I'm currently a superintendent of community engagement with the Winnipeg Police Service. I'm part of the Canadian Association of Chiefs of Police CACP, Policing with Indigenous People's Committee, PWIP, and the Social Justice Committee of same. The Committee, as I believe you know, has created the National Framework for Police Preparedness for Demonstrations and Mass Assembly. It's considered a best practice document. And CACP has in the last three years been approved to teach a police liaison training course under the CAPC certificate course for police liaison training where the National Framework is utilized and taught. So I'm going to reference that a little bit later on here as I continue my conversation. My expertise in police and community engagement and police liaison is a lot more granular, I think, than the presentations and the expertise at the table, but I hope to bring some operational perspective and experience to sometimes what is a very theoretical discussion in dynamic situations. Mass demonstrations and assembly are very dynamic. And as you've heard, they're changing in real time. There's no realistic way to prescribe and plan for every possibility. People in protest or mass assembly situations are increasingly less predictable. Experience suggests this is intentional. Disruption is often sought. The larger the impact, the more your underlying interest may be served. The CACP training and PLT trained officers are impartial but not neutral. Impartial to address bias that may exist, it really should not matter what a police officer's personal views are, but not neutral means once safety is compromised, we are obligated to act. The primary role of the police in any demonstration or assembly is to preserve the police, protect life and property, and enforce the law. Police to accommodate rights, it's our job, but it's also to maintain peaceful, lawful and safe assembly. PLT, Police Liaison Team, is more -- or, sorry, is relationship building, but it's also more than just talking. PLT play a role and are trained -- again, I'm talking in the context of the CACP training course -- to test resolve of leadership where leadership is identified in present. I believe there's been some papers and some presentations that addresses that we are often seeing on an increasing nature fragmented leadership, in fact, conflicting leadership in a number of mass demonstration and assembly situations. But consequence and responsibility is communicated to participants and to leaders alike, and that could and should be a role of our PLT trained members. The majority of events this Commission is discussing, through the Commission and papers and testimony, often occur in large cities where municipal police services, such as, where I am from, Winnipeg Police, but when they reach a scale of public disruption and disorder, in many, almost all of the cases, provincial police and federal police are utilised because they have the resources or the mandate to respond. So often it is this municipal to provincial to federal response and coordination that is required, and how do we prescribe it but still allowing the flexibility and adaptation that is absolutely essential in a dynamic situation? Communication, interconnectedness, and training is what I propose. Communication. I watched a little bit of the expert testimony and read the papers. Words used across organisations do often mean different things. Personally, as a community advocate, I often engage with other systems and utilise a certain word, community policing, systemic racism, police liaison, thinking that my audience understands the same thing, and quite often it's different. I'm going to focus just on police liaison. I threw those other two in there just more for reaction. But we, systems and people, use words believing that we are engaging and talking about the same thing. This is not the case across systems, and it's certainly not the case even within systems, and within police systems. Police organisations across Canada have a number of liaisons, community liaison, diversity liaisons, so now we're adding a layer of a Police Liaison Team, and I've clarified a number of times that I mean in the context of the CACP training course utilising the national framework. I believe we need to be clear what we mean, and explain it. So the CACP national framework for a police response is a best practice document. It was based on OPP PLT training, RCMP DLT training. They're liaison training. It went under the umbrella of the CACP because you have the municipal, provincial, federal components who belong under that national umbrella, who can provide a best practice document that allows the flexibility for smaller organisations to adapt within your own community context, but also have the consistent language and interoperability amongst police organisations to know what we're talking about and how we are responding across organisations. Manitoba, Winnipeg just hosted in June our -- the first CACP PLT training course outside of Ontario. We've been planning it a couple of years, and we were finally able to do it this June. We planned it under the MACP, sorry about the acronyms, Manitoba Association of Chiefs of Police, model, our members, and we included First Nations policing. So we had a training course with the concept of let's have our police colleagues in Manitoba aware of using the same language, having the training, and also, on a national scale, because we have seen with mass demonstration and assembly that the local goes national, international in some cases, and vice versa, so we have to have that flex and common understanding. There is communication and information shared across borders and boundaries by organisers, participants of mass demonstrations and protest. Many times police and systems don't have this freedom and flexibility. Common training and language would facilitate better information understanding across systems and police. It would clear up some ambiguity and it would actually provide public transparency and accountability that I believe that the public and Canadians expect from their police services. So we have seen movement travel across provinces and municipalities. If information or intelligence received is a risk or a threat, we must respond quickly to address this risk. Allowing organisations to utilise and implement response, with some flexibility to adapt as required for their own community needs, but consistent language and understanding, would, I believe, be very forward-thinking and allow an accountable and transparent response. So the community of practice, that I was anecdotally sharing, as far as the MACP model, and what, sorry, CACP is trying to do, is building a community of practice of consistent language and training, but also incorporate it now across systems. The understanding of what a liaison officer is, in my experience with community policing and community organisations, I think there's some disconnect for what some would consider the soft approach where it's only talking, it's not response or it's not accountability, and that is simply not the case. To that end, I believe in mass demonstrations you've heard as far as Incident Command training, PLT and liaison training needs to be incorporated into that within the police systems so that you have multiple units within police organisations who have an understanding, because the Incident Command model, PLT is only a part, but if your Gold or Integrated Command doesn't have understanding of that, they may not utilise it appropriately. So I started with the role of the police and safety. In the end, safety is the bottom-line. Staying current, understanding constantly shifting dynamic, social media has increased exponentially the volatility, the reach, and the impact of what we're seeing in mass demonstration. Technology has only amplified this. There's evolving factors and means for people to communicate. We have to be able to adapt, and sometimes police tactics in order to respond, we need to have that flexibility. We know there's backlash, increasing backlash against government, police, media, academia in growing numbers, it's on the rise, and I think that needs to be considered from a safety component, not just for the public but also for police officers. Police officers, government officials, high profile individuals are being targeted. How we incorporate our training and our members going out to respond may involve looking at how do we identify them in a way that may not include something like a nametag to recognise that security risk and impact? So finally, Canadian history and our historical context is relevant. It's necessary. We must pay attention to the "nothing about us without us". This means something. Indigenous leaders, leadership, the Canadian experience in context must be taken into consideration, and it has more to do that just the history of police and our Indigenous peoples. It involves all of our systems. So it's significant with police interaction, it also has significance for almost all areas that have been put before the Commission. Indigenous community leadership and governments should be acknowledged and considered as we go forward and make plans. Thank you.

Volume 34 (November 30, 2022), page 105 34-105-23

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Commissioner, would you have any questions before I open it to the panel?

Volume 34 (November 30, 2022), page 112 34-112-01

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

No?

Volume 34 (November 30, 2022), page 112 34-112-05

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Right.

Volume 34 (November 30, 2022), page 112 34-112-07

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Would anyone like to respond, react, comment? I have a number of questions that I would like to ask, but I want other people to have a chance to go first. Michael, is there anything that you wanted to come in? Cal, I can't -- I don't want to ignore you down there on the screen. No? Okay. Can I ask you, then, Bonnie Emerson, I'm really curious, where you ended with "nothing about us without us" in terms of liaising with the leaderships of various protest groups. But you also stressed at the very beginning of your talk, the fragmented leadership nature of many contemporary, especially mass movements. How does one try to think about bringing in those two things together? With -- how do you think about who the “Us” ---

Volume 34 (November 30, 2022), page 112 34-112-09

Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Well ---

Volume 34 (November 30, 2022), page 112 34-112-25

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

--- you need speak to is, if you have a fragmented leadership in a movement that is difficult to speak to?

Volume 34 (November 30, 2022), page 112 34-112-26

Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

So Indigenous leadership I used in the context of a nation-to-nation relationship, and looking at the leadership there’s special provisions, of course, in Canadian law, recognizing and acknowledging our Canadian history. So Indigenous leadership for land claims, and I believe Ipperwash was one of the papers studied and presented where there is a significant context that must be considered in response and in planning in this context. If you are looking at Indigenous land, then the leadership would be their governance structure and model, much like the political leadership is considered in a city context or a provincial context. The fragmented leadership that I referenced for mass demonstration and assembly is within a demonstration or protest capacity where, in one case, it is the evolving nature, I believe, of social media where people are responding, and so they have multiple different underlying interests on why they choose to participate. But it’s also a response to accountability and how the police are responding and warning and holding people accountable. We see adaptation to cause and effect. So having a fragmented leadership and no one person saying, “Yes, I’m organizing this event,” means there’s further requirements and/or work that needs to be done by the police or the groups. So two different things, but I’ll be quick and just say the final is in the context of my work, within community organizations and within Indigenous organizations. The historical context I reference is that there’s lots studying of Indigenous people without that information belonging to, or there’s government or state or police advocating and saying, “For them”. So the “Nothing about us without us” is in reference to if we’re going to be talking about the special provisions in Canadian law, then the people that that law affects should be involved in the discussions.

Volume 34 (November 30, 2022), page 113 34-113-01

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much.

Volume 34 (November 30, 2022), page 114 34-114-08

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Cal Corley, please.

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, thank you, Michael. And I apologize if I go on mute here periodically, just dealing with a bit of a chest cold. I’d just like to pick up on Bonnie’s comments as pertaining to Indigenous involvement, and I’ll speak to it a bit more concretely later. But I think it’s important for a couple of reasons. One is, the recognition today that our First Nation governments are recognized within the system, are consulted on a number of things; it’s just the right thing to do. On a very pragmatic level, in terms of dealing with conflict at public order events, I think there’s also a perspective that’s brought from Indigenous communities and Indigenous leaders, in terms of ways and means regarding -- excuse me -- the resolution of conflict, that I think it’s an important perspective that could be brought to bear. And as I’ll speak later, the involvement of Indigenous leadership from the -- from the planning through to implementation, developing the strategies, tactics and operations and the implementation thereof, I think it’s an important perspective that is, for both those reasons, very important. Thank you.

Volume 34 (November 30, 2022), page 114 34-114-14

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Excellent. Thank you. Does anybody else want to come in on that? Michael, ---

Volume 34 (November 30, 2022), page 115 34-115-08

Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure.

Volume 34 (November 30, 2022), page 115 34-115-11

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

--- please.

Volume 34 (November 30, 2022), page 115 34-115-12

Michael Kempa, Prof. (Criminology – University of Ottawa)

I would just add, in terms of overlapping the question of Indigenous involvement with questions of resources, the involvement of protest groups in self-policing initiatives within protest was under-discussed in the current context and is something that has come up as a major trend in policing mass protest over the last 20 years. Very often this has been tied to questions of PLT and negotiation of so-called protest green zones, where in exchange for moving protest into agreed areas after a period of time in symbolically important areas; this can be done in exchange for the involvement of protest leadership in taking some responsibility for the groups over which they have control. This obviously works better in situations where protesters are more unified, in terms of factions on the ground and so forth, which often is the case in Indigenous protests, as opposed to mass protest of the type we saw in Ottawa. And further, something that fell out of use around the current protest was the involvement of private security entities in protest policing. This was a major feature of the G20 security planning in Toronto, and it’s been a major trend for the last 25 years or so. This has been something that did not come up and was not a part of the current policing response or security response around the current issue. And this comes up, both at the level of private security potential involvement at the lower level of street enforcement, just enforcement of bylaw, or the guarding of physical space, all the way up to the high end of strategic planning. And also, critically, the digestion of intelligence and its -- sort of the laying out the options for the operationalization of that intelligence. So what the operational implications of different types of intelligence may be. It’s just something that, curiously, was completely absent from the current situation across Canada.

Volume 34 (November 30, 2022), page 115 34-115-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

And is it your suggestion, then, that a coordinating device needs to be put in place to bring that kind of -- what in the jargon is called a policing assemblage together; ---

Volume 34 (November 30, 2022), page 116 34-116-19

Michael Kempa, Prof. (Criminology – University of Ottawa)

Yes ---

Volume 34 (November 30, 2022), page 116 34-116-23

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

--- a public, private positioning in that way?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Yes, and that becomes part of the proactive dimension of coordination that was missing this time, on the basis that people explained. It was a paradigm shift that nobody fully comprehended its implications as it was approaching. But the idea that would again be that the fulcrum of all of this seems to be, unambiguously, it is police services boards that lead these conversations, whether they currently have the capacity to do so at the moment or not, and to be asking their Chiefs and facilitating perhaps with other groups, who can be involved in the policing assemblage. So just for example, there’s been some discussion that police services boards might take on the role more of community safety and wellbeing boards, to fit in with that type of municipal-level planning which -- of which policing is a part. It would be a similar type approach for public order proactive planning.

Volume 34 (November 30, 2022), page 116 34-116-26

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Great. Would anyone else like to comment on that before I turn it over to Cal? Okay. Cal, please, you’d like to -- a number of these issues are obviously going to intersect with each other. Could you please talk a little about interagency interactions and the issues arising, and anything else that you want to come off the discussion so far?

Volume 34 (November 30, 2022), page 117 34-117-14

Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, very much so. So first of all, thank you, Commissioner and team, for the invitation to participate in today’s panel. I’m Cal Corley; I’m the CEO, as mentioned earlier, of the Community Safety Knowledge Alliance. We’re a small non-profit that supports police agencies and governments in developing, implementing, and assessing new approaches to improving community safety outcomes. I’m calling today from the National Capital Region, and of course, on the unceded territory of the Algonquin Anishinaabe Nation. I’m also a former Assistant Commissioner with the Royal Canadian Mounted Police. My policing career includes time in the National Capital Region, in both Protective Operations and also a couple of years heading up the National Security Investigations function in the NCR back in the 1990s. Today I’ll focus my initial remarks on a couple of areas, but they really centre around improving both structural and institutional capacities and capabilities across the public safety system as it pertains to public order policing. More particularly, I’ll argue -- or, rather, my arguments will centre on, first, the importance of national standards, national protocols in support of effective policing of public order events. Secondly, importance of considering the full scope of, as to use the nomenclature that Michael just used, policing assemblages, with particular emphasis on the involvement of private sector security at all levels, as Michael Kempa just mentioned, from planning and organizing through to the implementation strategies and tactics at the front line. I’ll speak as well to how we hold those two first points together from concept to practice to support positive community safety outcomes, and I’ll talk there in terms of multi and bilateral agreements, and the vital importance of joint learning on the part of all of the actors. And finally, I’ll offer a few observations as it pertains to thresholds for leadership, responsibility, and accountability at major public order events and public order emergencies. Institutional failures in either public order policing or other emergency or national security situations are nothing new in our country. I can think of some of my own experiences and some of the lessons I learned, including here in the National Capital Region during protests, and violent protests in fact, during the first Gulf War back in 1990/1991 at Parliament Hill, at the Embassy of Iraq, and at a number of other locations in the City of Ottawa. We can also think back, for more of a national security context, April 1986, the hostage taking at the Bahamian High Commission in Ottawa that featured or that had two senior police officers from two organizations on the street in front of the event engaged in a yelling match over who had jurisdiction. I could go on with examples, but I really want to have a future focus here. Notwithstanding those instances, we generally have a history in Canada of trying to learn from these situations and improving our individual and collective efforts and responses. I’m confident that this Commission is sure to contribute to further improvements across that ecosystem. So let me begin with national standards and protocols. Major public order events are typically complex and multi-faceted. They often cross multiple jurisdictions, as we saw in January and February of 2022, and involve more than one police agency. As we saw in that instance, they may also involve a combination of multiple causes and multiple groups. Sometimes these coalesce, but often they don’t. There’s often no single leadership structure within the protest group or groups. These can be -- these groups can be incredibly nimble. They leverage technologies very well, as Bonnie mentioned a couple of minutes ago, as they adapt to changing circumstances in real time. In terms of preparation for these events, some of them, such as the 2010 G8 and G20 conferences, were preceded by months of in-depth planning, coordination of governance, of strategies, tactics, capabilities, and capacities. Others, such as the events last year, or earlier this year, particularly those in Ottawa, which have the initial thrust of events, offered considerably less time for authorities to plan, prepare, and coordinate their efforts. A third category are those that are quite spontaneous, at least in terms of the authorities being aware and being ably prepared. Regardless of which category a public order event falls into and whether authorities had months or days to prepare themselves, situations on the ground can evolve or devolve quickly. I’ve experienced this myself. It requires the public safety apparatus, and particularly the police, to be able to respond and adapt with nimbleness and acuity. This is clearly, in my view, an area of policing that warrants national standards and protocols. We’ve benefited in Canada for many years at the provincial and national levels from standards in other areas of policing. The two that come right to mind to me are in relation to Critical Incident Command, which you heard a little bit about a couple of minutes ago, and Major Case Management. Just as with major complex criminal investigations, responding effectively to major public order events requires skillful leadership and structured coordination. The importance of common tools, of common terminology, and methods cannot be overstated. The Province of Ontario developed its regulation and its Major Case Management manual in the wake of the Paul Bernardo investigation all those years ago. British Columbia has its own framework, which evolved from the Missing Women Commission of Inquiry. There’s a common thread there. These emerged from an external lens looking in at policing. Major Case Management is a proven methodology. There is a national standard that’s overseen by an advisory group of very senior police experts. It meets regularly, looks at recent cases, makes adjustments as and when required. The Canadian Police College’s Major Case Management Course is the Canadian standard for training in that domain. The MCM model emphasizes accountability and a multi-disciplinary approach to complex and serious investigations. Importantly, the approach provides for sound structure for these investigations, it establishes clear lines of responsibility and decision making, and creates rigorous approaches and infrastructure to record, document, and share information. The bottom line, in my view, is that interagency coordination and cooperation can be difficult. Personalities and egos sometimes get in the way of formal -- get in the way and trump formal arrangements. And on top of -- so on top of clear national standards, we would also benefit from equally clear agreements, both multilateral and bilateral, that support effective responses and operations at the cold phase. I’ll move on now to speak a little bit about joint multi-jurisdictional agency exercises. This is the glue that holds all of this together. So assuming that formal standards are in place, supported by appropriate agreements between levels of government and between police agencies, et cetera, it’s crucial that these standards and the elements of such agreements be practiced and stress tested. At minimum, it strikes me that today’s policy makers, police leaders, and public order response practitioners must share a common lexicon, a common base line of knowledge of the relevant law, federal and provincial and local policies, including but not limited to the relevant legislation, such as emergency acts, both provincial and federal, the Security Offences Act, those critical elements of the Criminal Code, as well as private property law. And I’ll come back on that one in a moment. During my years in operational policing in the National Capital Region, then Solicitor General, now Public Safety Canada, coordinated and hosted major multi-agency and multi-jurisdiction training exercises for precisely this purpose. While these had a central emphasis on national security, they’re certainly applicable in instances such as we witnessed in Ottawa. These exercises were typically two or so days in duration. They involved multiple agencies in the National Capital Region, including the OPS, the RCMP, the OPP, Sûreté du Québec, Gatineau Police, CSIS, Solicitor General, PCO, and relevant agencies within the Province of Ontario and the City of Ottawa. These exercises serve to, as I mentioned, to stress test all aspects of the enterprise, from governance, information sharing, and other protocols, leadership, tactics, and operations. Not only did these improve individual and collective capacities and capabilities, they also helped iron out a number of kinks within the system. It’s one thing to have these written in formal agreements, et cetera, et cetera. Where it really matters is how they play out on the ground. We’ve developed a good understanding of grade two procedures and a better understanding of one another’s agency capabilities, equipment, technologies, et cetera. It improved, ultimately, information flows and responsiveness in often very dynamic environments. And equally important, these experiences allowed for certainly my experience was it allowed to working over a couple days with my colleagues from these other organizations, to start to develop relationships with them that really carried forward when you needed it when the rubber hit the ground. I’ve recently learned that these extensive and in-depth exercises have not been undertaken in the National Capital Region for several years, and it strikes me that in the absence of such exercises, the risk is that formal standards, protocols, and agreements often, you know, don’t survive “first contact with the enemy.” And so those -- exercising this is highly important. I’ll move on quickly just to cover two other areas. Private security. If I refer today to private sector, I’m inferring by that, private security, which has long been a key actor providing for safe and security communities across Canada. There's just a ton of literature on that. It offers in a policing context lower-cost alternatives often to fully trained and equipped public police officers in attending to certain lower risk to harm duties. But they also bring perspective, know-how and capabilities that the public sector often don't have, and I'm thinking there particularly but not exclusively as it pertains to private property laws, et cetera. At the 2010 G2, the private sector was intimately involved right from the get-go in terms of planning, strategic, tactical as well as certain operational aspects of the security response. I'm not aware of any such arrangement in terms of the events in Ottawa in 2022. There's a couple of potential barriers that I believe warrant examination in that regard in terms of why not. In the G20 circumstances with months to anticipate, there was an agreement between the Toronto Police Service Association and the private actors in terms of what that agreement would look like. Barriers when trying to put these together in shorter order, such as was the case in Ottawa, I'd be looking at Ontario's adequacy standards under the Police Act, particularly around sections 11 to 14 or so, that limit what non-police officers can do. For example, under -- and related to that under Ontario's Highway Traffic Act, only sworn police officers can direct traffic at an intersection. Collective bargaining agreements also have some stipulations typically that can get in the way of these. So developing national agreements, national protocols, certainly in the national capital region that sees so many of these events over the course of the year, dealing with the police associations and developing appropriate protocols to enable more effective cost-effective responses certainly would benefit. Finally, the last area that I have, and I'll only take another moment here, has to do with thresholds of leadership responsibility and accountability. And the question that I've been pondering a bit lately is whether there are or could be unique circumstances together with a corresponding threshold at which the federal government, as in the case of the Security Offences Act, could or should exert federal primacy in the carriage of a response into part 2 of the Emergencies Act. I'm thinking about particularly situations that could involve, on one hand, a major public order event that gets out of control and a related simultaneous national security incident, whether it's a hostage taking of an IPP, or otherwise, but something that falls under the Security Offences Act. We have federal primacy in the case of the invocation of the Security Offences Act but not on the other. And where they're directly related, and I don't think it's a stretch to envision the potential for a situation like that, it could be very advantageous I think to be thinking this through in terms of whether there could be a threshold at the very highest level that could warrant that. And the final point in terms of thresholds that I'd like to make, and it's not related to that, is the present situation we're predominantly dealing with major cities, Ottawa, Windsor, et cetera, together with some locations like Coutts, Alberta that are policed by the RCMP. What if the local police of jurisdiction was a small or medium-sized municipal service that didn't have many of the sophisticated procedures and abilities to exercise those such as many of the larger centres do? And I'm thinking here in terms of the province of Quebec, which has contemplated these issues and have years ago instituted a six-level of policing model. And I won't go into details on that now, but suffice to say that if you're, for example, the City of Gatineau, the threshold they're at as it pertains to public order policing is that they can respond and attend to crowd control issues that could contemplate there being -- getting out of control or turning into a riot. But it takes a level four, five and six, ultimately level six being only the Sûreté du Québec, that can really take over and respond to incidences such that we saw here in Ottawa. And as I say, I won't go into that. If anybody has questions, I'm happy to, but this may be an area that the Commission would see worthy of exploration. So I've spoken about national standards and protocols, a regular regimen of joint exercises, sometimes costly, but the cost benefit analysis on this given the economic and other implications of what happened in Canada certainly need to be factored in there, together with the role of the private sector in all aspects of this and by extension back to the earlier comment, I would include in that the importance of Indigenous governments, and finally, the question of thresholds, which I suggest might warrant some additional exploration. And with that, Michael, I'll cede the floor.

Volume 34 (November 30, 2022), page 117 34-117-22

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Cal. I'll open it up to any other members of the panel. Anybody want to make an intervention, ask a question, comment? Michael Kempa, please.

Volume 34 (November 30, 2022), page 127 34-127-18

Michael Kempa, Prof. (Criminology – University of Ottawa)

Just to add or to build on what Cal Corley was saying is the main benefit of specified thresholds for when provincial, or if the RCMP provides provincial policing on contract to take over some influence or all control of operational planning for a jurisdiction, if it's set to a threshold, it removes the implication that the municipal police service is failing in some way. So this can be tied either to or some combination of the threshold of security threat, such as in Quebec with the levels one through six, or/and to some proportion of total request of personnel power coming from the provincial or federal authority that's providing provincial policing via contract. So you might imagine, just for example, that if a police service was asking for personnel somewhere in the range of 10 percent to 50 percent of its total size, that would automatically kick off integrated planning between the 2 police agencies. If it was a request that went to a larger -- an even larger number, something on the order of more than 50 percent of the size of the service making the request, it might be a situation of ceding operational planning to the agency that is giving the personnel support. Now I don't know what the precise numbers would ideally be, but some sort of proportional formula might work well, and just create that expectation that this is simply what happens. It's not an implication of an inferior police service or poor management, a lack of confidence in a police leader, and it also takes some of the pressure off of the current situation on police services boards to be the deciders in these circumstances. In the end, if there's disagreement, for example, as a complete hypothetical, if a chief of municipal police did not want to cede operational control to a provincial police authority and the board of that municipal service thought it was a good idea, the board could force the issue by threatening to dismiss their chief, which is their prerogative. It is an extremely harsh response to bring about the desired result, and probably not one that many boards would feel confident to make, given that very often they don't even have the confidence that they have the legal authority to ask questions of operational planning, let alone dismiss their chief for not ceding operational control to another police agency. So by rendering these formulaic, you are relieving some of the pressure over what is ultimately a group of civilian overseers who don't have that level of expertise on technical matters in police planning.

Volume 34 (November 30, 2022), page 127 34-127-23

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Excellent. Thank you. Bonnie, I'm assuming you'd like to come in on this.

Volume 34 (November 30, 2022), page 129 34-129-10

Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Yeah, I just wanted to say that regardless, as far as jumping, like, a solution, the multisystem training standards is optimal. How that is accomplished, if you were to prescribe a percentage, the police executive are going to be aware of this percentage and they're going -- it's just as easily as not asking if you're saying the threshold is 10 percent, then I'll just ask for 5. And so when we know that, it's simply a matter of -- I mean, again, my experience as a municipal service who -- there's a large-scale incident we're going to partner, it makes sense in having a national standard and that flexibility for the experts I think is recognizing the experience. The one part that I didn't cover when I had mentioned training was also the adequacy or adequacy recertification, meaning you can have your training once in a variety of areas, but there's no standard as far as how you maintain it. Recognising that we're one incident away, often we say, of the world changing again, and all the planning and preparation and/or tactics may need to be updated, and so you want that training to be updated as well, at least on some level of basis. I think these dynamic situations require the openness and the community of practice, allowing the people who have the expertise, and not just police but within these systems, to engage in these conversations.

Volume 34 (November 30, 2022), page 129 34-129-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Cal, did you want to come back on any of those issues?

Volume 34 (November 30, 2022), page 130 34-130-08

Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, just very briefly. It strikes me that the beauty with the Quebec model is, and I go back to conversations over the years with the former Chief of the Gatineau Police, Mario Harel, what he really liked about it was that at Level 3 this is precisely the parameters that he had to ensure his police service was prepared for to deliver excellence. He didn't have to think about any of those issues that were at Level 4, 5, or 6, but he knew that when he called upon either the, for example, SPVM or the Sûreté du Québec, that they were prepared at those levels to come in and provide the requisite assistance. So it's a -- it's an interesting model. I know that there's a couple of provinces that have looked at it in terms of their policing structures. No one's taken it up yet, but as it pertains to public order policing an important area to think about. And I would agree with Bonnie in terms of multi- system training, you know, how it's done is less important than a commitment that it be done with appropriate standards to attain.

Volume 34 (November 30, 2022), page 130 34-130-11

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Robert Diab, please.

Volume 34 (November 30, 2022), page 131 34-131-03

Robert Diab, Prof. (Law – Thompson Rivers University)

Sure, thank you. Cal, I have a question about the decision about whether thresholds are met. So you spoke earlier about the idea that different police agencies in the future could police large protests by having a set of standards and protocols that would work out in advance, you know, who would do what, when, and where, and on the one hand, and maybe also a set of thresholds that would determine, you know, when this agency or -- would step in or not. Who do you envision deciding whether those thresholds are met? And what I have in mind is what would guarantee or what would suggest that in the future we wouldn't have the kind of confusion we've seen in these earlier events arise in the event of a dispute over whether the threshold was met?

Volume 34 (November 30, 2022), page 131 34-131-06

Cal Corley, CEO (Community Safety Knowledge Alliance)

So ---

Volume 34 (November 30, 2022), page 131 34-131-21

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Cal Corley, please.

Volume 34 (November 30, 2022), page 131 34-131-22

Cal Corley, CEO (Community Safety Knowledge Alliance)

Yes, thank you. So Robert, just to begin, one of the most difficult matters when we're doing these exercise back when it was in that transfer, for example, under the Security Offences Act, that's one of the most difficult and awkward things because -- and from an RCMP perspective, assuming those responsibilities we always felt it important as a matter of practice that you continue to keep the local police actively engaged and involved, but the locus of accountability and responsibility shifted and you tried to keep it workable like that. In terms of when I spoke about the thresholds, and I'm thinking as I say specifically about an absolutely out of control situation where we're just short of, for example, calling in the military, that everything else has been exhausted. But on the other hand, you've got the Security Offences Act, national security investigations taking place. And if, as if by fiat or otherwise, the Attorney General has invoked that and the RCMP assume responsibility, if it was related to a public order of significant magnitude event, is there benefits or -- is there benefit in having a single line of command on the two of these or is it appropriate to keep them separated? And that's what I was speaking of in terms of that threshold. Under the SOA, I believe it's the Attorney General of Canada that exercises that authority and makes that determination. I wouldn't venture -- I don't come from a constitutional or a legal background, so I wouldn't venture to say who in this case would make that decision. But just with the dynamic world we're living today and what we've experienced and the propensity for large-scale civil unrest in the future, it struck me that it's something that's worth thinking about.

Volume 34 (November 30, 2022), page 131 34-131-23

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Anyone else? Commissioner?

Volume 34 (November 30, 2022), page 132 34-132-26

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

All right. I have a question, as I often do, for you, Cal. Your suggestion of bringing in the private much more extensively, would you include the -- those private security actors also in your planning groups, and in your practices?

Volume 34 (November 30, 2022), page 133 34-133-02

Cal Corley, CEO (Community Safety Knowledge Alliance)

Absolutely. Absolutely, and particularly, but not exclusively, but I think about the National Capital Region, which is, you know, I couldn't -- we couldn't -- I can't guess how many protests in a contemporary society we have here in the NCR. Obviously many fewer than that are of a very significant magnitude. But engaging the private sector early in these is very important. We're crossing from private space, public space, back into private spaces. We saw what happened at the Rideau Centre in Ottawa, for example. Most of the police in the Rideau Centre is actually private sector undertaking. But there's tremendous benefits, I think, from that in that the private sector comes well with levels of legal authorities that the public police simply don't have. And so for the greater public good, how can those be used in concert? So absolutely, yes, from planning, involvement in joint exercises, ultimately on many protests that may or may not be required, but can't discount the cost of public policing as it pertains to these. Just a little sidenote, Michael. During the events in January, February, I was crossing the bridge from the Quebec side over to the Ottawa side, and a considerable way from Parliament Hill, but there was roadblocks on the parkway. And I was driving through, and five or six sworn police officers there, and you know, part of the argument is that's relatively low risk to harm manning the barricades that distance away. Could those police officers or at least five of the six or whatever the numbers were, be redeployed to greater purpose and have private security there at much lower cost? Much better effective use of resources than what we saw.

Volume 34 (November 30, 2022), page 133 34-133-07

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Anyone else on this topic? We'll come back to some of these issues I think. Right. I'd like, finally, to turn to the issue of regulation, please. And begin, first of all, with Robert Diab, and then turn to Colton Fehr.

Volume 34 (November 30, 2022), page 134 34-134-09

Robert Diab, Prof. (Law – Thompson Rivers University)

Thank you. Well, thank you to the Commissioner to begin with, and the Commission for inviting me to speak. So I provided a background paper to the Commission, and in it I make two main points that speak to lessons that may be learned from the February event for police in future protests. The first pertains to exclusion zones. So the Government of Canada, as I understand it, found it necessary to invoke emergency powers partly to authorise the police to create an exclusion zone, and the government found it necessary to rely on emergency law because of a gap in ordinary law allowing for this. I believe this was the correct assumption. As I note in my paper, the only authority to create large exclusion zones, you know, zones where the police can, you know, close large areas of public space for not only vehicles but also pedestrians, is found in emergency legislation, emergency acts across the province, and also in the Foreign Missions and International Organizations Act. I'll call it the Foreign Missions Act, which is a power that only applies to intergovernmental conferences. Incidentally, I understand the Commission has heard evidence about powers in municipal or provincial traffic law that allows for street closures. So again, these -- my understanding is that these deal with vehicle traffic closing roads, not closing or regulating, you know, big areas of public space. So one takeaway is that, as with other major public events in the past two decades, creating exclusion zones is something important for police at these events at the moment, outside of these -- outside of intergovernmental conferences, the only source for doing this is emergency law. So to avoid relying on emergency law in the future, we need to give police the authority to create these zones in ordinary legislation, if we want police to have these powers. What would this add to existing law? Well, the power in emergency law and in the Foreign Missions Act to create these zones is vague. So police can create them under these Acts, but the law provides the police no guidance as to the size, the duration, the rules about, you know, passes; it says nothing about compensation for disruption, that sort of thing. So police at present, when these powers are invoked, they decide all of this in, essentially, a vacuum, and they do so behind closed doors so there’s very limited transparency or accountability. An ordinary statute would rectify this. A second lesson pertains to a topic that’s taken up a lot of time today; how -- what lessons for the future should we draw about how police agencies work together? The gap in the law I pointed to about exclusion zones is part of a larger gap on the policing of public order events generally, and a big part of that gap pertains to the way police agencies work together when these -- when they’re policing a big event. So the Commission has heard a lot of evidence about whether, when, and how the Ottawa Police or agencies across the country should have worked with outside agencies. The very same issue, as I believe Cal mentioned, and maybe Michael as well, the very same issue has come up in numerous other inquiries about big public order events, including the G20, and even as far back at least as the APEC meeting in Vancouver in ’97. All of these events, possibly including the trucker convoy, suggest that when police agencies don’t work together effectively what follows is disorder on the ground, rights violations, and limited accountability in how they decide to regulate the protest. Now, I believe what I’m going to propose here is consistent with what Cal has proposed, perhaps a little different; I think it may be a bit different from what Michael has proposed. I’m going to suggest the problem may be straightforward. The problem may come down to the fact that in all of these cases, it’s unclear who has lead command. If we assume that that’s the problem; that the lack of clarity on who had lead command is the real reason that coordination was ineffective or even broke down, there are, I think, generally speaking, two inferences to draw. One is that we need better -- a better set of rules or protocols on how they should coordinate; that we should go no further than that; then, you know, working out a set of protocols or standards, but let the police decide when those standards are met or thresholds or what have you. Let them -- do not tie their hands about how they should work together. Another inference to draw, one I advocate, is that the law should clearly state that in a certain kind of event, one agency has authority. The Foreign Missions Act does precisely this. Section 10.1 of the Act says, and I’m quoting: “The Royal Canadian Mounted Police has...primary responsibility to ensure the security for the proper functioning of any intergovernmental conference...” Sorry; I’m just losing my place. So for this kind of event, this agency should take the lead, full stop; no confusion. You know, it’s not a protocol that would risk being tucked away and neglected, you know, relatively quickly. The section does go on to say that the RCMP can make arrangements with other forces, but it’s clear that for this kind of event, they’re in charge. So this points us, I think, at two things that happened in February. The first is that before the emergency powers were invoked, there was no ordinary legislation giving one agency a lead authority over what we might call a nationwide protest or, you know, a national-scale protest. So if we were to assume that there was legislation, that had given -- that had named something, given a name to a species of public order event that we could call a national protest, among others; like, for example, the World Cup, you know, a major sporting event, among other kinds, if it had done so, what difference would that have made? A second problem is that when the emergency was invoked, the Emergencies Act did the opposite. Section 20 of the Act says, contrary to what section 10 of the Foreign Mission Act says -- I’m going to paraphrase but it says something like nothing in a emergency declaration will derogate from the ordinary chain of command over the police of a city or a province. I would suggest that the February emergency compels us to ask whether this is a good idea; whether instead section 20 should give a specific agency lead authority over a public order emergency. In my view, I think that would avoid the confusion that is likely to follow over, you know, who does what when, or when should this agency start working with that agency, and so on. Another way to put it is; try to imagine how this might have worked had there been ordinary legislation that said, for example, not necessarily the RCMP but in the event of a nationwide protest, the RCMP has lead authority. Maybe they could have been involved earlier on; maybe they could have coordinated more effectively; maybe there would not have been a different approach in places like Toronto, downtown Toronto, or Ottawa. So to close, in my view an important lesson for policing future protests of a national scale or other large events, is that we can avoid resorting to emergency powers; we have ordinary law setting out who has lead authority over specific events, and precisely what police can do. I advocate drawing on the example found in legislation from Australia, discussed in the paper. But the Act I point to there carefully circumscribed police powers to create an exclusion zone, how it would work, what they were allowed to do. So that, that piece, along with a law giving one agency authority over specific -- a specific kind of event would, in my view, go a long way to avoid the confusion about, you know, who should be involved and when. I’ll stop there.

Volume 34 (November 30, 2022), page 134 34-134-15

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Excellent. Thank you very much. Colton Fehr, please.

Volume 34 (November 30, 2022), page 139 34-139-22

Colton Fehr, Prof. (Law – Thompson Rivers University)

First, I’d like to thank the Commission for having me. And in addition to Robert’s comments, I think that that’s sort of a law you propose you seems to be something that falls into the POGG, or Peace, Order, and Good Government national concern emergency grants power and seems quite prudent. But I, too, authored, with my co-author, Professor Steven Penney, a paper for the Commission. And in that paper, we co-author -- we detailed the available police powers for responding to public order emergencies under federal and provincial legislation, some select municipal bylaws, and then also under the common law. And today I want to focus on two major themes that arise from the paper; so the first is institutional, and the second is constitutional. So first I’m concerned about which institution, courts or legislatures, should craft police powers to address existing gaps with respect to public order emergencies. And under something commonly called the ancillary powers doctrine, the Supreme Court has granted judges broad authority to craft common law police powers; a tool that many judges have not been overly shy in using. And for some authors, judges should craft extensive police powers because it is, and I’m quoting the former Chief Justice of Ontario, Justice Roy McMurtry: “It’s impractical and unnecessary to legislate an extensive code of police powers.” (As read) And with great respect, I'm not sure that such an approach is prudent. I think it overlooks problems that are inherent to judges crafting police powers, so sanctioning police powers after the fact renders it impossible for citizens to know the scope of police authority before they are subjected to that authority. And in my view, this is troubling from a rule of law perspective as citizens do not know the actual extent of police power. And further, the Canadian experience has shown that courts often make these types of criminal procedure rules in inadequate evidentiary environments, and I think this occurs in large part because the evidence upon which rules must be based in the adversarial system of justice must come from the parties pleading their respective cases. And a host of limitations can result in that evidence failing to raise interests or facts that are pertinent to developing the law. So I think it's thus prudent for courts to require legislatures who are not hindered by the adversarial process to craft rules in the criminal procedure context, and then have courts use the Charter to rigorously analyze the scope of those powers as informed by both the judicial and legislative records. Second, I have concerns about the constitutionality of the available police powers that can be employed in the context of public order emergencies and the fact that a good many of these laws just simply haven't been amended or updated, looked at sometimes in more than a century. So, for instance, my reading of the relevant Criminal Code provisions suggests that if an antiquated provision commonly known as the Riot Act is read, police may resort without fear of criminal or civil liability to potentially unlimited force against anyone who resists state efforts to suppress the riot, and the stakes here are obviously quite high. So this power, which I think is substantively similar to the English Riot Act first adopted in the early 18th century threatens to deprive individuals, in my view, of life, liberty and security in a manner that is inconsistent with fundamental justice. And also troubling is a power in the Criminal Code allowing police to arrest anyone found or about to join in or renew a so-called breach of peace. And importantly, breaching the peace is not an offence under the criminal law, rendering it the only non-offence for which a citizen may be arrested under the Criminal Code. And to my mind, permitting police to arrest for non-criminal conduct sits uncomfortably with the rule of law. The provision arguably fails to give people fair notice of the possibility of arrest, and it's also largely immune from judicial review as citizens would need to bring what would be an expensive civil suit to the courts before the issue can be legally resolved because it's unlikely to get there in the criminal justice system because we're not dealing with a criminal charge. And that renders the provision what we would call low visibility; in other words, it's unlikely to be scrutinized in a public forum. So if it's kept on the books, I think that that really has the potential to facilitate abusive use of arrest powers in the context of these public emergencies, order emergencies especially, a fact that has actually been well documented during the G20 protests. So I also share some concerns with Professor Diab about whether Canada should rely too heavily on models for regulating public order emergencies adopted in other countries such as public order acts authorizing exclusion zones, and Professor Diab cited a -- or an Australian example, but he also wrote about a UK example. And I think authorizing these laws is prudent in one sense as it communicates, again, the scope of police powers in advance, which is a good thing. But it also appeared quite valuable in bringing recent protests to an end when invoked pursuant to the Emergencies Act. But I also think such a power must be carefully crafted to ensure freedom of expression, assembly and other fundamental liberties are duly protected. So, for instance, requiring individuals to give notice of their protest to the state as occurs under the UK legislation doesn't sit all that comfortably with me because it could very well chill fundamental democratic rights. And then similarly, other proposals such as requiring protesters use alternative protest sites when the initially chosen protest space is deemed problematic by the state would also, to my mind, engage constitutional assembly and expression interests because the place in which a protest takes place, say in front of a government building or on contested lands, can also convey meaning in itself, thereby engaging some constitutional interest. So any such policy would, therefore, need to ensure that it arises only in response to a need to protect vitally important public interests such as upholding public safety. So just to summarize, I think it's prudent for legislatures to both fill any existing gaps in police powers and to update existing police powers to accord with the Canadian Charter. And while courts may serve that latter role if an appropriate case arises and also provide a check on any legislation that the -- that is passed, I do think that a proactive approach here by legislatures is preferrable as that could avoid rights violations before they happen, especially when some of these violations could be very serious. Thank you very much for hearing me.

Volume 34 (November 30, 2022), page 139 34-139-26

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Colten Fehr. Comments, reactions. Michael Kempa, please.

Volume 34 (November 30, 2022), page 144 34-144-09

Michael Kempa, Prof. (Criminology – University of Ottawa)

So I just -- to respond to some of the comments of my colleagues, in particular, I have sympathy for the idea that you might have a definitional threshold to decide who would have responsibility for taking the operational and planning lead on a particular type of event. Two precisions that come up around that are, number one, there may not be an agreement around the table as to what type of definitional situation you are in. So, for example, some players around the table may say we are in an instance of a mass protest that poses a serious security risk and, therefore, by this definition, planning would fall automatically to the provincial agency, or a federal agency; whereas, other players at the table may say, no, this is an ordinary protest that stays within our jurisdiction of primary planning. So I would just say, even if you were to take a definitional threshold, you would probably have to tether it in some way to a magnitude threshold of some form. So protest is typically the domain of the municipal police service, unless there is a request for personnel support exceeding a certain number or proportion; whereas, something different, you know, a national security issue to do with a bomb -- a coordinated bomb threat might automatically, no matter the amplitude or size of that situation, might automatically pass to another agency. But I do think that to avoid confusion around the table, you would have to tie it in some way to a size issue, size measurement threshold.

Volume 34 (November 30, 2022), page 144 34-144-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Colten Fehr, please?

Volume 34 (November 30, 2022), page 145 34-145-12

Colton Fehr, Prof. (Law – Thompson Rivers University)

I wonder if that problem would always come up just because if, say, the federal government says we can declare that this is something of national concern, or emergency, thereby giving us, the feds, it would have to be litigated after the fact as to whether they were wrong on that question. So in the moment of the protest, would that be an issue? I’m curious as to your thoughts.

Volume 34 (November 30, 2022), page 145 34-145-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Michael, do you want to comment?

Volume 34 (November 30, 2022), page 145 34-145-20

Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure. So to answer, I would just say, but obviously before we get to the question of the involvement of the Federal Government, the chain of planning would pass from Municipality to Province, to the Federal Government. So I think the thresholds that I was speaking of was more in terms of the primary response before we got to any situation ---

Volume 34 (November 30, 2022), page 145 34-145-22

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Okay.

Volume 34 (November 30, 2022), page 146 34-146-01

Michael Kempa, Prof. (Criminology – University of Ottawa)

--- of emergency. So proactive planning. Do we have any idea that we may be asking for resources from other police organizations and therefore a need to coordinate command on some level? And then afterward, things are going poorly, we are making a request, what is the level of integration automatically? Is it coordinated or does the other agency take control? This is before you get to a situation of the Federal Government saying it’s completely broken down.

Volume 34 (November 30, 2022), page 146 34-146-02

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Robert Diab, please.

Volume 34 (November 30, 2022), page 146 34-146-11

Robert Diab, Prof. (Law – Thompson Rivers University)

Michael, I think that’s a great, absolutely great criticism or question to raise about what I’m proposing. So the way it works right now in the Emergencies Act is that the decision maker is the federal government. It must decide whether it thinks the standard is met, and then the Commission is the after-the-fact referee. But I think if we had ordinary legislation, maybe the model would be something like a warrant, where you have an independent decision maker. So you know, if there were a dispute about whether we were in something called, you know, a nation-scale protest, we could maybe -- there could be an independent figure who we quickly consult and, you know, on the basis of something like a warrant. You know, some sort of brief report, and then that figure would provide an independent decision quickly based on, you know, objective evidence, or evidence seen in an objective way. There are many mechanisms like this in the world, in legislative frameworks of national security and counter-terrorism, and just in ordinary criminal law as well. But that’s a great, absolutely great point.

Volume 34 (November 30, 2022), page 146 34-146-12

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Bonnie Emerson, please?

Volume 34 (November 30, 2022), page 147 34-147-04

Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Okay. Thank you. I would just comment that accountability is important. The community of practice, the issues may be the assessment of the information and how does a, in most cases, a municipal service, be able to adequately assess what the threat is outside of the fact that you’ve already got tens of thousands or more people there. So that would be that building of community of practice and sharing information under oversight rules, community of practice, to be able to share from interprovincially interagency in a responsible, ethical, legal way. Right now, you have many different such communities of practice within police organizations for what I would consider sort of established and understood roles of police. Because of the liaison work, and the organizing, in this mass demonstration assembly is evolving fast, the mechanisms to adjust to it, I believe, need to be. There is, obviously my bias is on the table, I believe extensive oversight of police organizations, and I don’t know of many people who would suggest that that’s not appropriate. It is. So recognizing that, I think it’s now a matter of how do you plan and prepare to be able to effectively make those decisions? And then you look at the question of what would the thresholds be? Because you can’t even make the decision unless there’s going to be a mechanism for police to share information from interprovincially. There is a number, many, increasingly, demonstrations and assemblies that we see are moving from one province to another province, and that the local and the solidarity movements are such that it will affect it. And so even if the underlying interest is local to start with, the exponential factor of technology and social media, a solidarity effect is exponential, and so we need that -- the police need that ability to be effective.

Volume 34 (November 30, 2022), page 147 34-147-05

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Robert, did you want to come back on that point? Okay. Cal, I don’t want to leave you out just because you’re not in the room. Thank you.

Volume 34 (November 30, 2022), page 148 34-148-10

Cal Corley, CEO (Community Safety Knowledge Alliance)

Thank you, Michael. A couple points, and perhaps first on Bonnie’s in terms of where she started off in terms of local police being able to appropriately assess risk. And a couple of points there. And one is -- one has to do with confirmation bias. And so confirmation bias, of coruse, you know, we discount the current intelligence that’s coming in and give greater weight to our past experiences. And, you know, we heard -- at least my reading of some of the testimony we’ve heard of some of that here. So those -- it speaks to me in part to the importance early on of, you know, back to the whole gambit of what I forward earlier, I suppose, in terms of standards and protocols, and one of which is around issues like that, would be locally have a broad-based leadership group that’s helping guide these. It can help counter, it can be certain to ask the right questions, et cetera, to support, ultimately, whoever the decision maker is at an institutional level. I’d also -- while I’ve got the opportunity, Robert, you raised two important points, I thought, that I want to respond to. One, you spoke a few minutes ago, in terms of being able to define, on a national scope event, that single authority that would be responsible and accountable. And again, that speaks to me to the importance of standards and protocols with significant precision. And I’ll come back on that in a moment. And the reason being, even in a center like Ottawa, where the Ottawa Police Services, the police of jurisdiction, I can see circumstances where, for example, under one scenario, if, just by way of example, that single authority you spoke of was the RCMP, I think we’d want to build in very clear, concise, pragmatic, protocol around that transfer of responsibility that tends to the hugely important of local context and local knowledge being maintained. So in that decision making and while most leaders would tend towards that partnership approach, I think it’s really important that, you know, clear, very concise, and practical, pragmatic language we use, we tend sometimes to rely on too much that’s reasonably concise, yet artfully vague, and that just leads us to problems in leadership and ultimate implementation of these strategies. Those are my comments. Thank you.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Anybody else? Great. I would, if I may abuse my position for a minute, Robert, I’d like to explore the relationship between your idea of exclusion zone legislation and Colton’s concerns particularly about symbolic spaces. And it ties us back, actually, to something Michael said right at the very beginning, that one of the policing strategies one might be able to consider in these cases is a certain period of time at a symbolically significant space, and then a move to a green zone or what everyone wants to call it, where one can continue to protest, however, one is no longer occupying that particular space. I would like to understand how you think about Colton’s concerns about what this does to the nature of the protest itself, which is, after all, tied to a symbolically significant space; right? It is not the same, to use the Ottawa context, having a protest on Parliament Hill, and having a protest in the empty parking lot of a baseball stadium. Right? It simply doesn’t do the same thing, if you’re a protestor, even for the protest and for the public message you’re trying to put forward. So I was wondering if you could just reflect on that issue for a minute? Then I’d like to ask Bonnie if she could put that specifically in the context that you spoke about earlier about Indigenous spaces in particular; right? Where these things are often very, very tied up, not simply with the protest itself, but with where the protest takes place. And if you could talk about what the implications of that would be? Secondly, I’m most interested in this idea of what are the civil rights implications, if you like, of an exclusion zone? I know, although it is not my area of expertise, that the U.K. situation has come under -- the U.K.’s proposed use of these has come under very, very sustained challenged; right? People who worry that it will fundamentally curtail the public's right to dissent. And I was wondering if you could just speak to that general -- those general issues, please, and start off that discussion?

Volume 34 (November 30, 2022), page 150 34-150-01

Robert Diab, Prof. (Law – Thompson Rivers University)

Shall I go first?

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Please.

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Robert Diab, Prof. (Law – Thompson Rivers University)

Sure. So very briefly, the exclusion zone, sorry, the protest zone raises its own set of issues distinct from exclusions. I agree with my college, Professor Fehr, that you know, they engage expression rights and assembly rights and even liberty rights, and -- but on the other hand, they have been considered already in Canada in a number of cases, and in some cases, they are deemed, you know, not to violate rights or reasonable limits on rights. Because among other things they do, is they facilitate, you know, the safe expression, like the safe conduct of a protest. So they're not simply restrictive, but they are - - on the other hand, they are restrictive and they are -- they do -- they may have a chilling effect. And -- but so those are really case-by-case and they're factual and so on. Exclusion zones, I think, raise a different set of issues, and they can be, I think, enormously invasive or, you know, contrary to our rights. So I'm just -- my understanding is from, you know, the media coverage prior to the Commission conducting the fact-finding Inquiry, was that the exclusion zone in Ottawa was something like 70 blocks, and you know, there were, according to one news source, something like 100 checkpoints. This is an extraordinary thing in Canada to -- so -- and like another example would be Quebec City where several - - at least a few square miles of the Old City were closed off. If you lived in the Old City, you needed a pass, you had to register to get one, and you couldn't have visitors. Like, you know, you couldn't have like your friends over for the weekend, or at least not without a lot of... This is -- you know, this is a extraordinary thing. It's an extraordinary incursion on our liberty. Whether it's necessary and justified is one question, but the light I'm trying to shine on the issue is not to say it's not justified, it can never be justified, it's to say that the decisions about whether in this one case it was reasonable are made in the dark, are made in the dark, like legally in the dark, no guidance, and also, behind closed doors. And that that's -- that seems contrary to the rule of law and to Canadian traditions that the place to do -- to make these decisions is the legislature. The only, I think, alternative we can point to is something like the Olympics in 2010, where somewhat similar issues were decided quite effectively in advance, but in public forums, mainly City Hall, but -- which wouldn't be ideal going forward for, you know, small protests in small towns or smaller cities that can't afford to conduct the kind of preparation that we saw in 2010. So I hope that addresses the question.

Volume 34 (November 30, 2022), page 151 34-151-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Very much so. Colton, did you want to address any of those issues?

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Colton Fehr, Prof. (Law – Thompson Rivers University)

Yeah. I think I'd agree with Robert that even though it addresses the -- or impacts the expression interest, that what I'd like to see from a legislature is some sort of clear set of guidance as to what threshold would be in place before -- what type of interest, public interests are being jeopardised before we should shift or allow the police to require a protest to be shifted. And if that was defined more clearly in legislation that seems like it could be the type of thing that withstands our justifiably infringed right under section 1 of the Charter. So that is the, perhaps the main response I would have to Robert.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Right. Bonnie Emerson, please.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Okay. Thank you. I would first say that, again, the expectation of what you can expect from the police as far as cause and effect we have seen in the last -- most recently that there is a big disconnect, different understanding, and actually different expectations of police in response to protests. And most recently, talking about in the last winter and spring, it -- I was very surprised to see that a number of my experiences and conversations were based on what the underlying cause of the demonstration and the protests were, and that if people disagreed, go to the bias, with the underlying cause of it, they expected a greater police response, and that the police need to be able to be clear and articulate that the response will be same and "this is what you can expect." Whether it's from, in this context, exclusion zones or pushing them on. And why when you're looking at the totality of the situation, because I had started with PLT training as far as peaceful, lawful, safe, lawful is in there. Peaceful is, and safety, of course, underpins everything that we should be doing, but there is a lawful component in articulating that. I, again, this is me, but with our police they should not be using force on citizens unless we have tried what is reasonable to the extent that we can to mitigate that, and that is the bottom-line. Now, did we communicate that? Maybe it's a matter of having some community practice and training. To answer your questions as far as Indigenous space, I think there is two components. One is you're going to have jurisdictional issues. So Winnipeg has now the largest urban reserve in Canada, and it's going to be developed shortly. So a jurisdictional issue would be what is to happen if there's a police response on what will be an urban reserve in municipal policing in the middle of Winnipeg? How do we respond to that? I think that's a significant new area of -- to be considered because it's in the middle of an urban centre and there is unique considerations. In the PLT training, we do, again, take a nod to the Indigenous history and the history of Canada as part of the training, but it's not meant to be Indigenous exclusive or specific. That cultural component and expectations that police officers educate and inform themselves of the underlying or interspaced reasons for the mass demonstration is expected, in the Winnipeg context, looking again back to where I said Incident Command models within policing, you have often a briefing for large incidents or large, well, incidents where you're going to plan, our liaison teams on a number of incidences it might be -- well, the lead, it might be me, where we're talking about cultural components, to make sure we look at appropriate response to regalia or ceremonial items. But that could be broader to a particular interest or a cultural component or sensitivity that a mass response by policing, not everybody is going to have the same training or knowledge base, so you incorporate the PLT into that briefing, incorporate the local knowledge so that your response is measured, consistent, lawful, safe and peaceful.

Volume 34 (November 30, 2022), page 153 34-153-22

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Michael Kampa.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Just similar on the point of exclusion zones when we speak about moving people to green zones for protest and the importance of allowing people to access symbolically significant space. It's -- again, it's not in terms of a strict time limit where people would have 48 hours in a significant space before being required to move along. Rather, there would, of course, have to be legitimate legal reasons for which a threshold to be met where a protest or members of a protest would be asked to go to a green zone perhaps as part of a self-policing arrangement. I mean, long before we get to a situation of a mass protest threatening national security or any -- within even earshot of an Emergencies Act conversation, there are issues of threat to public safety, threat to officer safety, and lower standards where there -- that might be the bar for beginning to open up green space for a protest, partially as a strategy to begin to separate the very -- the vast majority of honourable protesters that are there to make a point, from the smaller number, who over time become a larger number attaching themselves to a protest with other objectives and less honourable intentions.

Volume 34 (November 30, 2022), page 155 34-155-24

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Yeah, please.

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Colton Fehr, Prof. (Law – Thompson Rivers University)

And just building on Michael's point. I think also that the state should be required to use the vast amount of police powers that they have, and in some instances, the criminal law to catch those problematic protesters early on so as to show the protest that the state means business. You know, we have all sorts of tools under federal criminal law, under provincial regulatory statutes, and so on, that can be used to kind of send that message first. And I would want that to be something that would be considered first before we start saying, “Here’s a green space and let’s make people go there,” just because of the importance of protesting in a symbolic space. Thank you.

Volume 34 (November 30, 2022), page 156 34-156-18

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. I notice we’re coming to the end of our time. I wanted to give everybody the opportunity. Is there a final point or two points that you would like to make, either arising from our discussion; something we haven’t spoken about that you would really think important to put on the agenda before our time closes?

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Colton Fehr, Prof. (Law – Thompson Rivers University)

We have ---

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Colton Fehr, please.

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Colton Fehr, Prof. (Law – Thompson Rivers University)

Thank you. We haven’t spoken about some of these very strange, antiquated police powers that you find in the Criminal Code. And some of these I just wasn’t aware of, as a person who is a professor in the field of criminal law, before I started taking a deep dive here. And this -- as with many criminal justice issues in Canada, legislative reform is direly needed, and we don’t see that reform coming very frequently. And hopefully this Parliament takes the opportunity to reflect on some of these very troublesome powers. And again I point to the -- this antiquated Riot Act, which derives really from the English Riot Act from the early 18th century. Why do we have this? If you look at other states in the Commonwealth; the New Zealands, Australias, even the UK, they’ve repealed this type of legislation long, long ago. It’s time for us to follow suit, I think.

Volume 34 (November 30, 2022), page 157 34-157-13

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Cal Corley.

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yes, thank you, Michael. My comment is one we haven’t touched on yet, is just around the self-policing among protest groups. And it’s a concept that has been brought about elsewhere, and maybe one that’s worth exploring by the Commission. It’s basically the idea that the police work right from the get-go with the protest organizers and involve them in policing, regulating their behaviour throughout the course of it. It can tend to work very well, usually with those who are there with honourable intentions to protest peacefully and make their points. Sometimes less so, but it can be a differentiator and reduce the police effort as these groups multiply and such, as Michael mentioned earlier.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Michael Kempa?

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Just, Commissioner, if I could, I would just end on the point; I know it’s been very alarming for people to see what was widely seen as the collapse of the civil policing system in the face of what began as an honourable protest. I would just -- there is a reassuring point to make, and that’s that major public disorder episodes have always been major turning points in how policing is set up and delivered. Even the advent of modern public policing came on the heels of major civil disturbance; which is simply to say, it’s entirely within our power to reorganize the policing system to meet these challenges. It’s a small reassuring point.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Robert? Do you have any final point? No. Bonnie Emerson? No? Commissioner, any final questions?

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

I think we have three minutes. We -- can we come up, Michael first, and Robert second, please. Yeah, Michael.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

So Michael Kempa.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Quickly, yes.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

So just very quickly. Commissioner, I absolutely agree. I think that the thresholds that I’m speaking of are for when consensus were to break down. The system works well when there’s agreement at the moment. It’s where there’s disagreement, the ambiguity leaves it open and nobody’s quite sure who has the final say. So perhaps you could have it that if there was an agreement on how to proceed, you would only move to thresholds when things would begin to break down, just for clarity.

Volume 34 (November 30, 2022), page 160 34-160-08

Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Robert Diab.

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Robert Diab, Prof. (Law – Thompson Rivers University)

Maybe two quick points. One is that I’m not sure that every kind of major event is truly new and unique. I would suggest instead that there’s a finite number -- there’s a finite variation. There’s only, you know, certain kinds, there’s a -- techniques or strategies in this current protest were interesting and new, but the general idea of a national protest; a protest unfolding on a national scale was not new. The second point is that history suggests that they don’t just work it out. So if we look at what went wrong in all -- like, in a series of major events that have generated inquiries, one thing I’m trying to show in my paper was that a common motif in all those inquiries was that coordination broke down because the nature of the leadership or of the arrangement was unclear. So to just take one example, in the G20 event, the Foreign Missions Act said to the RCMP, “You have primary responsibility over the meeting.” So they created a zone, a small zone around the conference centre itself, and there were, like, not many problems in around that. Most of the problems -- the civil unrest, the confusion, the rights breaches and so forth -- unfolded around the areas that were larger, where it wasn’t clear who could do what where, when, what the police powers were. So another way of putting it is to say that this question of a lack of clarity is closely related to a lack of clarity about what they can do. So I’m really calling for -- I’m suggesting we’re going to keep seeing this confusion and disorder unless we have clear leadership, and also, a clear delineation of what police can do; what tools are on the table for what kinds of events?

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Do we have time?

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

You do. You have one minute.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Bonnie Emerson. I would suggest that because of the dynamic situation of mass demonstration and assembly, if you look at Scotland Police, they have one police service for municipal and federal. I recently met in the spring with a couple of their liaison members, just looking at their training and best practices. They are experiencing, within that model, much of what we’ve already discussed. And a lot of it is -- from their perspective, is also what we’re experiencing here, where it is the volatility and the training and the intent of, again, the 10 percent of people, organizers, looking to do as much disruption as possible to undermine whatever systems are in place; they’re adapting and moving with that specific person. And just for emphasis, I’m not suggesting that’s the majority of lawful protesters, and -- at all. But I know from a -- I did a Peace Fellowship globally in Thailand three years ago. The global perspective, there is global training for professional protest, and the response they train. It was fascinating, as far as what to do when the police come. These are organized systems. And so the adaptation and that dynamic nature, I think whatever will be put into place, there will be mechanisms and situations where people try to circumvent it. Thank you.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. On that note, Cal Corley, I saw that you had your electronic hand up, but technically speaking, we are now over our time. So thank you very much, everyone. I’ll call this session to a close. We will reconvene in 30 minutes. And thank you for your contributions.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you, everyone, for that really, really useful session. We have a number of questions that have emerged for further consideration, one of which has come in directly, and I will simply read it out. So perhaps we’ll begin with that. It’s a rather technical question. So I would like people to deal with that, if they can. The question runs as follows: can the panel assist in framing a recommendation to address the establishment of a framework for drawing upon resources to deal with protests where required? This may be a more pressing issue in the NCR, the National Capital Region, where there are multiple police services. Is it desirable to develop a protocol to establish first, second, and third, and subsequent ports of call, or is it best left to the police of jurisdiction to deal with each situation on an ad hoc basis in response to each particular protest? Anybody have suggestions, thoughts, questions on that? Michael Kempa, please.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Well sure. I think that the difficulty that has come in Ottawa has to do with just simple confusion over who may bring -- who may ask whom for resources, in what order of -- what order of request. So where it started with the police of jurisdiction, it always starts with the police of jurisdiction. In Ottawa, the main point of coordination as it exists, is the Police Services Board. So where that board determines with their chief that they have a need for further resources, it is unclear at present to whom that board is supposed to go next. There is -- the Office of the Inspector General is intended to develop into the role, is my understanding, as the next point of call. But those regulations are not yet written, and the authority for the IG to act is not yet established by the new COPS Act in Ontario. So if that office is currently working only by the delegated authority of the Solicitor General’s Office, it’s only doing part of its functions right now. So boards have not gone to the IG for that support as to who they would then ask for resources. Would they go to OPP? Would they go to Protective Services for the Parliamentary Precinct? Would they go elsewhere? So it should be the IG that would be the first point of call to provide that advice, to advise, in the circumstances, where the first port of call would be.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Cal Corley?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Thank you, Michael. Just building on that, and to the question, if it was asked, I think the short answer is yes. but consist with good practice and being proactive about it, these are things we shouldn’t leave to happenstance or in the heat of the moment trying to arrange and determine where those come from, but plan for it. And that’s part and parcel of the purpose of why a national framework or national standards are important and would cover off this very type of thing, based on best practice and prevailing practices. The local practice, for example, in the National Capital Region, the OPS would typically reach out to the RCMP, who have a good size contingent locally, together with the OPP, and in some cases, across the river. I think in addition to that, a framework such as the question posed, one should be thinking about not only public resources, but again, depending on the nature of the event, the nature of the duties required, consider how the private sector can play in that as well. So back to a more comprehensive look at this. I was thinking about when Robert reminded us that, you know, in the other perimeter in Ottawa, there are 100 check points. And if those are manned 24/7, let’s just assume that they had three officers at each of those. And if you could convert even two of those to private sector, in the course of a day, you’re looking at 600 resources, police resources that could be deployed to other functions. So I don’t think it’s a question of just what other police services can we look at for these events, but looking more wholistically across the region, potential contributors, again, depending on the nature of the event.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Excellent. Thank you. Bonnie Emerson, please?

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Yeah, thank you. I agree with Cal. With the -- you have a national framework right now, best practice document to build on. What I understand is, given the complexity right now, it’s already causing, or has caused a significant amount of confusion and different levels of interpretation. If you add another level on to it, I don’t -- I would only think that would exacerbate it. You have a framework that exists right now that is partially utilized, and it becomes the national standard in modernizing and have required training across police services. That becomes part of the Incident Command model that is accepted police services, but I understand there’s different models. So that would have to be clarified. And you have the PLT at the Incident Command table. So you’ve got a framework that is considered best practice exists, you have the flexibility to, or the police service of jurisdiction, to reach out where it’s required, but you have that now the liaison framework at the Incident Command table, which currently right now, that will exist in some police organizations, and there will be different levels of how that’s incorporated in different police organizations. So in Winnipeg, the experience was informally, a couple of years ago, because I was trained in this model, we incorporated it as best practices. We didn’t have the formal training for our members to have a formalized liaison team until June. So the practices that I’m suggesting were incorporated into our model because of the Incident Commanders and now we’re looking at the right people in the right positions to make this happen. So what I would prescribe is that this should be a standard so that you have that consistency.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

So in your view then, it’s more a matter of clarifying and rolling out what already exists, as opposed to inventing anything new?

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

It is clarifying, mandating what exists so that it is consistent. Incorporating in a practice that is utilized and accepted within policing systems, the Incident Command Model is accepted and understood. The liaison component is fairly new, in a formalized way, for police services, generally, even though philosophically I think there was lots of research talking about Peelian principles and how this truly is at the heart of community policing, liaison work, all of those principles coincide. But it’s not a matter of reinventing the wheel. It’s a matter of coalescing it so that we are consistent and it’s easily articulable.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Excellent. Thank you. Cal, your hand is up. Did you want to jump back in on this?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, thank you. I’d just like to pick up on that, and just what I suggest would be a friendly amendment to what Bonnie suggested, is as much as the CACP developed a national standard, as it were, it seems to me that given the nature and scope and the dynamic times we're in that they would warrant being refreshed by a much broader group that would include the police, that would include those involved in police governance, that would include, and I'm speaking there at the municipal, provincial, territorial, and federal levels, Indigenous participation, private sector participation, and of course from the justice and AG side at the federal and provincial levels. The good workings of a national standard like that should be the responsibility of a multi-disciplinary group of experts, and again, crossing some of those various domains, and that's supported by training standards, established with the Canadian Police College, which provides advanced and specialised training to all police services across Canada, and supported by exercises of the type we've spoken of earlier, coordinated nationally by, I'd suggest, Public Safety Canada. And then with a feedback loop that feeds right back up to the top to ensure that those standards are refreshed on a regular basis, as and when required. Thank you.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Robert Diab, please.

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Robert Diab, Prof. (Law – Thompson Rivers University)

So I take this question to be asked in the absence of a plan or the approach that I was proposing a minute ago. So in other words, like I assume that the question is really prefaced by saying something like assuming we don't do what you're -- what I'm proposing, assuming we don't have either provincial public order police acts or a federal or both that define kinds of events and then set out, like, you know, who leads and what they're allowed to do and so on. I think -- so that -- this is a good question. What then would happen? How would we deal with resource allocation in dealing with protests of various scales that involve more than one agency? And I think the interesting part of the question to me is if you wanted to give that any teeth, if you wanted to make that viable in a meaningful way, rather than just have a set of standards where we agree we might do X, Y and Z when this or that happens, you'd have to amend the provincial police acts and you'd have to amend -- and/or you'd have to amend the RCMP Act. Put another way, you'd have to find places to put this in federal, provincial legislation that create the obligation on the part of one or more agency to -- or one more government to commit resources. And I don't know how that would -- I don't know what that would like, you know, in a way that didn't become some version of what I'm proposing. In other words, in order for that to happen you'd have to have some sort of definition of the kinds of events that trigger these obligations and what the money should be used for if that makes sense. So -- or at least, you know, those questions would be in the picture. And so I'll leave it at that. Thanks.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Robert, could I just follow up on that? Because it seems to me that the key issue you're circling around there is that somebody has to be able to make that decision, right, and that that needs to be specified in advance. It can't simply be assumed that it will come out in a complex and evolving situation. Where would you suggest one begins to think about locating that point of decision?

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Robert Diab, Prof. (Law – Thompson Rivers University)

You know, I don't know the answer to that question. Again, if we, in the absence of something like an approach from the ground up, or for, you know, to go back to square one and say to create -- to treat public order policing as a special thing that requires, you know, its own law and so on, in the absence of that I don't know the answer. I'm simply pointing to the fact that policing straddles both heads of government or both powers. And so you're -- we're getting into an area where both governments may be in a disagreement about who should pay, and really this is question about money. I mean, it's been couched of a question of, you know, who is going to commit so many officers to this protest and so on, but really it's about money, I think, but it also, as you suggest, involves decisions about what's appropriate. "Do you really need 200 more officers?" "I don't think so." And who makes that decision, and so on. It's thorny, and I don't know the answer, but the tentative one I proposed was that maybe acts -- events of a national scope, a national nature, like the Olympics, the World Cup, national protests, maybe they belong in -- you know, maybe the Federal Government should take -- should assume authority over them, and conversely, you know, events of a provincial nature should be something that the provincial governments assume authority for. So -- but nevertheless, I just think you can't divorce these two questions. You know, you can't -- if you reject the approach I'm contemplating, you're really dealing with the same problem. Thank you.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Anybody else?

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

But I ---

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Bonnie, please.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

I just wanted to clarify just to agree with Cal and Robert, that currently the CACP model, like our training, the training program isn't resourced, you're right. Right now, the current trainers are from police services, municipal, provincial, and federal, so WPS, OPS, Ottawa or OPP and RCMP, and it's not sustainable for me to go and train multiple organisations across Canada. So it is a question of resource. And going to something like the Canadian Police College would be, I think, appropriate.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Another question that came up, and I'd like to address this one first to Cal Corley, if I may, since you brought it up specifically, I think, in your remarks, Cal, is whether or not the major case management model provides a framework or a basis for thinking about the way in which interagency coordination could take place across Canada. Could you speak a little bit to the strengths and weaknesses of thinking about that as a model for alternative ways of institutional coordination?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, very much so. And first and foremost, it provides a mechanism that provides rigour to planning, implementation, supports leadership and sound decision-making across -- typically across multiple agencies. So there's clarity in terms of leadership, there is clarity in terms of the methods by which where it's done, but I must say that it also does not hamstring a leadership team or the investigative teams in any way. They still have plenty of latitude to adapt and respond to local circumstances, it's just within a very well constructed framework. And by way of using that as an analogy, I think, you know, it wouldn't be a difficult thing at all to take a framework like that and convert it, apply it to the current circumstances.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Anybody else like to comment on that question? No? Okay, great. Thank you. I'd like to return us, if we can, to the very beginnings of our discussion, and talk about concrete policing strategies of the protest itself. Someone I think mentioned it, it may have been you, Michael, that it was a rather old fashioned way of policing this protest. And given that on-the-ground policing is obviously connected to all of the institutional kinds of questions we're talking about, can you reflect on what you think the lessons ought to be going forward in terms of the way in which policing was actually handled on a day-to-day basis on the ground as the protest evolved here, and how you think it might have implications in other contexts in the future? I realise that's a very big question.

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Michael Kempa, Prof. (Criminology – University of Ottawa)

Sure. Well, I think that the main point that emerged in terms of the strategies that police services deployed in Ottawa, Coutts, Alberta, in the earlier protests, and then Toronto and Quebec City going in a different direction, having observed what happened in Ottawa, is that the initial strategy was from a standard playbook that was essentially drawn up after the G20 in Toronto of containment and allowing protests to sort of fizzle out on their own time prior to any enforcement or apart from very dangerous behaviours, but for minor enforcement to not be undertaken until protests had dissipated. And we heard a little bit about that in terms of even on the interpretation of intelligence that came in where police officers said, "Well, when we filtered that through our experience of typical protest, our typical experience is that protests last for a finite period of time, focussed on an identifiable set of issues." So in this case, that strategy just is in no way designed for a multi-layered protest with different objectives with no particular end date in mind, other than the achievement of a long list of particular mandate and broader political objectives. So the stand-back approach, police officers put this to me in terms of, “We simply followed the playbook that came out after the G20 in Toronto, and it was completely inappropriate to the circumstances.” So where I’ve spoken with police officers about, “Well, where is the sort of in between; between aggressive policing, which was the old style of handling mass protest, versus the containment strategy?” They all came back to early engagement with PLT; negotiation at an earlier stage to do with what people might -- where they would begin to identify problems such that they might be willing to move at a future time if certain things were observed, so there was almost a pre -- there would be a pre-understanding of what behaviours wouldn’t be acceptable and when there might be a need to move; and preparation for enforcement of more minor violations at an earlier stage so that things like the bedding in a vehicle simply wouldn’t be able to happen. And police officers subsequent to the Freedom Convoy in February have pointed to using some of these things in more recent protests in Ottawa around Rolling Thunder in April and the Canada Day protests that followed along. So just simply that that containment strategy, which was lauded in many cases after the G20, was inappropriate in these circumstances.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Right. Bonnie, would you like to comment on that?

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Well, sure. I’ll just say that without getting into specifics, but I think it does speak to training. The Manitoba context, we did have two mass demonstrations at the same time, and they were approached -- I’ll speak for Winnipeg but there was one at Emerson, Manitoba border. With the pre-intervention, with the understanding of PLT in that pre-engagement is not solely for relationship building and waiting it out. It is consequences knowing, eyes wide open, “Here is what your responsibilities are; here’s what the consequences is,” and testing leadership when they’re identified as an organizer of an event. So I agree that -- with Michael, as far as looking at what is the strategies for police officers, why are they -- and how are they trained, as far as looking at what they need to do, and continuously updating that body of practice and knowledge is completely necessary.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Right. Cal, I see you nodding. Did you want to come in on this point?

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Cal Corley, CEO (Community Safety Knowledge Alliance)

Yeah, I nod well. I was -- no, I was just reflecting, and I agree entirely. I mean, this is -- responses to events such as this involve an ecosystem; multiple agencies, multiple actors, and strategies and tactics that are not practiced, not stress tested are bound to fall short of expectations, to one degree or another. And I think as we’ve heard over the last number of months that we should expect better. One question that resonated as I was listening to Michael was, you know, had there been any after-action reviews to date, for example, involving the parties? An event such as this typically would if it fell under a national standard, that would be a key element of it, and it’s just a question I ask.

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

That I have no answer to. Anyone else? Great. Those exhaust the questions that we have received. Does anyone have any final comments that they want to make that are particularly important; things that they want to put on the agenda, that the Commissioner, the Commission ought to consider? We have exhausted both the issue and our knowledge of it? Excellent.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

Well, you prefaced it with anything particularly important. (LAUGHTER)

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Yeah.

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Bonnie Emerson, Supt (Community Engagement – Winnipeg Police Service)

I was just going to say thank you. I can’t imagine how exhausted you are, but this is exciting times with great opportunity, so...

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Commissioner, do you have any final comments?

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Michael Williams, Prof. (Public and International Affairs – University of Ottawa)

Thank you, everyone.

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