Cara Zwibel
Cara Zwibel spoke 303 times across 14 days of testimony.
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Cara Zwibel, Counsel (CCLA)
It's my job to be the comic relief. So good morning, Mr. Commissioner, and good morning, Commission Counsel, members of the public. My name is Cara Zwibel, and I, along with my Ewa Krajewska, who is participating remotely, are representing the Canadian Civil Liberties Association. We will be participating primarily remotely starting next week, but do anticipate attending in person for portions of the coming weeks, and we look forward to participating in the fact-finding role of the Commission and expect to play a particularly active role in the Commission's policy phase and forward-looking functions. The Canadian Civil Liberties Association, or CCLA, is a national, independent, non-governmental organisation that is dedicated to the protection and promotion of fundamental rights and freedoms in Canada. The CCLA has been engaged in this important work since its founding in 1964, and is known for taking principled stands on difficult issues that require reconciling fundamental rights with other competing interests. The Commission is aware that the CCLA has sought judicial review of the decision to declare a Public Order Emergency, and argues that the Act's legal threshold was not met, and that the emergency orders that were put in place by the Government breached constitutional rights in a manner that was not reasonable or justified. The CCLA's interest in the Commission's work comes from our concern about the use of emergency powers that circumvent the parliamentary processes and allow the Executive Branch to rule by fiat. It is a concern that has been around for as long as the organisation has existed, and although the excesses of the War Measures Act are now well understood, during the FLQ Crisis itself, the CCLA was one of the lone voices critical of the use of that law. As a result of that experience, the organisation participated actively in the process that led to the passage of the current Emergencies Act. In particular, the CCLA encouraged Parliament to build meaningful oversight and accountability mechanisms into the Act and to require a high and judicially- reviewable threshold for declaring a national emergency. There are many issues that the Commission will be examining which are central to CCLA's work, including the lawful scope of the right to protest; the role of police in facilitating protests while protecting public safety; the relationship between policing authorities, civilian oversight bodies and government actors; and the surveillance of those involved in dissenting social movements. More broadly, the CCLA's interest in the Commission's work goes to the core of the organisation's mandate, protecting the rights and freedoms of Canadians and demanding transparency and accountability from our governments. The CCLA views the Commission as an instrumental part of achieving the goals of transparency and accountability, and our participation in the Commission's proceedings will be aimed at supporting those goals. Thank you.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Mr. Kanellakos.
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Cara Zwibel, Counsel (CCLA)
Can you hear me?
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Cara Zwibel, Counsel (CCLA)
Sorry. Can you hear me, Mr. Kanellakos?
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Cara Zwibel, Counsel (CCLA)
Okay, great. My name is Cara Zwibel. I am a lawyer for the Canadian Civil Liberties Association.
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Cara Zwibel, Counsel (CCLA)
We're a non-profit organisation. I just have a few questions for you. Sorry, just give me one moment, and I'm just going to note what time it is because I know my time is limited. I just want to ask about in your testimony when you were being questioned by Commission Counsel earlier today, you talked about the agreement that was being worked on with some of the convoy organisers. I just wanted to ask about communication of that agreement to the federal government. I think you said in your evidence that you had passed that information along to Mr. Stewart and is it Minister Mendicino's office; is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. And so you passed along the correspondence between Ms. Lich and Mayor Watson. And did you ---
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Cara Zwibel, Counsel (CCLA)
And did you communicate -- was that on the -- do you recall whether that was on the 13th or the 14th when the ---
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. And did you have discussions with anyone else, discussions or email correspondence with anyone else at the federal level about that agreement?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. And did you have any discussions with anyone from the federal government, any of your contacts, or receive any notice before the federal government announced the decision to declare an emergency under the Federal Emergencies Act?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. And I think in your -- the witness statement that was introduced earlier that you gave to Commission counsel, you mentioned the Emergencies Act providing some assistance to the City. And I think the way you put it was that it discouraged people from attending and helped to shrink the size of the protest; is that accurate?
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Cara Zwibel, Counsel (CCLA)
Okay. So it was sort of a deterrent role, in your view?
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Cara Zwibel, Counsel (CCLA)
Okay. And you felt that people were discouraged from attending that area because the announcement had been made about the Emergencies Act?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you, Mr. Kanellakos. Those are all my questions.
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Cara Zwibel, Counsel (CCLA)
Good evening, Superintendent Morris. Can you hear me okay?
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Cara Zwibel, Counsel (CCLA)
My name's Cara Zwibel. I am a lawyer for the Canadian Civil Liberties Association. I have also just five minutes with you and I know I'm the only person now keeping everyone from their dinner, so I will try to be as brief as possible. If I could get the document actually that we just had up on the screen, OPP0000789, please? And I just want to -- -
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Cara Zwibel, Counsel (CCLA)
Sorry, it's OPP0000789.
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Cara Zwibel, Counsel (CCLA)
Yeah, I don’t think that was it. It was the email we were just looking at,
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Cara Zwibel, Counsel (CCLA)
Oh, five zeroes, I'm sorry. Thank you. So I just want to take you to -- if you can just scroll -- okay, that’s great, thank you. And here you're sort of explaining why you're writing this email, that you have a somewhat unique view into the intelligence that was gathered leading up to these events. And in the middle of the paragraph that begins "Further", you say: "By way of example, I see a marked increase in the conversation of extremists participating in these events, and Canadians with extreme ideologies leading the charge. Although there are exceptions, I have not seen evidence of this; in fact, Hendon received and reported very little of this activity. It was not in evidence at the Ambassador Bridge, nor events related to the Blue Water Bridge. Further, the events in Toronto did not illustrate this. By way of example, the Canadian Security Intelligence Service had very little to report on. I noted that their targets were not engaged. INSET --- " And sorry, can you just tell us what INSET is?
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Cara Zwibel, Counsel (CCLA)
Okay. And so: "INSET reported that the activity did not meet their threshold in national security. So I do not know where the political figures are acquiring information on intelligence on the extent of extremist involvement." So here, just, you're expressing the concern that this narrative around extremism is not consistent with the intelligence that you gathered, collected, reviewed over the course of, you know, the weeks leading up to these events?
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Cara Zwibel, Counsel (CCLA)
Okay. And is it fair to say, I think Commission counsel took you to, I think it was the February 7, the February 7th document where you had a discussion about sort of the use of the term "a threat to national security" and why you were careful about that term, and how you explained that to some of your colleagues within the OPP. Is it fair to say that at no point during the convoy protest did you receive reliable intelligence that would lead you to conclude that there was a risk to national security, that would rise above the potential threat to national security that you identified in that report?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. Can I get document OPP000850? I think it’s four zeros, maybe it’s five. This is going to be an email that you sent to -- is it Deputy Commissioner Cox?
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Cara Zwibel, Counsel (CCLA)
Okay -- Deputy Commissioner Cox and you’re expressing -- you’re expressing here -- this is dated February 2nd so we’re in the midst of these events and you’re saying that your office: "POIB, is increasingly receiving requests for information, intelligence, open-source scrapes, background checks, et cetera, on a wide array of societal actors. Many of these entities are social movements that have perspectives that divert from the mainstream. They may not be engaged in criminal activity, nor do we have grounds to believe or suspect that they are. These requests are emanating from many clients internal and external to the OPP at an escalating rate and with great urgency." And you’re expressing some concerns here. And maybe we can scroll down. Can you explain the nature of your concerns about these requests for intelligence about various entities? I think this gets a little bit to the point that you were making and the questions you were just being posed a moment ago.
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. And on the ethical front, you noted you were concerned that the targets of these requests were not engaged in criminal activity or there was no reasonable and probably grounds that they were; is that right?
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Cara Zwibel, Counsel (CCLA)
Sure.
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Cara Zwibel, Counsel (CCLA)
Okay, thank you.
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Cara Zwibel, Counsel (CCLA)
Thank you. That was my timer. I’m just -- if I can get the Commission’s indulgence for just one more question. You distinguished earlier between unlawful activity, civil disobedience -- or civil disobedience and criminal activity. And am I right in saying that the -- you don’t view all acts of civil disobedience as rising to the level of threats to national security, or rising to the level of threats, of acts of violence, or even criminal activity.
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Cara Zwibel, Counsel (CCLA)
No, sorry, this was in relation to a question you were posed by Commission counsel. I think in one of your reports you noted that there was a serious of sort of a mass amount of civil disobedience and you distinguished between those acts and acts that amount to serious criminal activity or that could pose threats to national security. There’s a distinction between those things; is that right?
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Cara Zwibel, Counsel (CCLA)
Yes, it does. There’s a proportionality to these things?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Thank you very much. Those are my questions.
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Cara Zwibel, Counsel (CCLA)
Sorry. Good afternoon, Chief Bell. I'm also coming in from Zoom. Can you hear me and see me okay?
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Cara Zwibel, Counsel (CCLA)
Oh, that’s because I have not turned on my camera. My apologies. There we go.
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Cara Zwibel, Counsel (CCLA)
My name is Cara Zwibel. I am a lawyer for the Canadian Civil Liberties Association, and I just have a few questions for you. You were asked earlier about the Ottawa Police Service's authority to really pre-emptively stop traffic from coming into the city. And I think you said that police have the ability to prevent vehicles from entering an area, and you mentioned that the Charter of Rights and Freedoms doesn’t protect, you know, vehicles; it protects individuals. But you also said that it was clear that the truckers were coming to Ottawa and that part of their plan was to be in the Nation's Capital; is that right?
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Cara Zwibel, Counsel (CCLA)
And part of the role of the Ottawa Police Service and any police service in Canada is to facilitate the right to peacefully protest. Would you agree with that?
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Cara Zwibel, Counsel (CCLA)
And in some cases, the manner in which a protest is carried out is a core part of the message that’s being conveyed. So as an example, if you had individuals who wanted to protest insufficient bike lanes and they wanted to ride their bikes, the use of the bikes is an important part of the message of the protest; would you agree with that?
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Cara Zwibel, Counsel (CCLA)
Okay. And in the case of the convoy, when the trucks -- we heard from other witnesses -- when the trucks entered Ontario, there were some OPP, PLT teams that were in touch with some of the convoy organizers. Are you aware of that?
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Cara Zwibel, Counsel (CCLA)
And those PLT teams didn’t give the truckers any indication that roads would be closed or that they would not be given access to the City of Ottawa, correct?
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Cara Zwibel, Counsel (CCLA)
But certainly, it was the expectation, you understood it to be the expectation of the truckers that they would be allowed to enter the City of Ottawa?
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Cara Zwibel, Counsel (CCLA)
At the time that the convoy started, leaving sort of the legal authority aside, would you agree that the OPS wouldn't have had the operational capacity or resources to prevent this number of vehicles from coming into the city?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. Just a couple of questions also about the federal Emergencies Act, and the declaration of the emergency after that Act. There was an operational plan in place that was, I understand, still evolving a little bit before the emergency was declared, but the nature of that operational plan didn’t substantially change following the invocation of the Act; is that accurate?
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Cara Zwibel, Counsel (CCLA)
And I know you mentioned that one of the more helpful things that the Emergencies Act gave you was the ability to create some exclusion zones?
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Cara Zwibel, Counsel (CCLA)
But you agree that the police have a common law power to create exclusion zones provided there are grounds to do that?
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Cara Zwibel, Counsel (CCLA)
So the Act was helpful in terms of it being sort of something you could show to the protestors and to your officers to say, "This gives us the authority," sort of a good demonstration of that authority?
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Cara Zwibel, Counsel (CCLA)
Okay. And did the Ottawa Police Service create exclusion zones during the more recent Rolling Thunder event?
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Cara Zwibel, Counsel (CCLA)
Okay. So you weren’t clearing individuals out of there but you were saying, “These are areas where vehicles can’t enter”?
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Cara Zwibel, Counsel (CCLA)
Okay. And you didn’t need special legislation to do that?
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Cara Zwibel, Counsel (CCLA)
Right. But would you agree with me that the authority that the police have to do various things depends on the circumstances and the context. So when we talked earlier about not stopping the trucks from coming into downtown, you mentioned that there was no previous with an event like this; there was nothing to suggest that there would be the level of disruption that there was. So those were pieces of the circumstances and context that were considered in making a determination that you couldn’t exclude the trucks from the city?
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Cara Zwibel, Counsel (CCLA)
Okay. And I mean in every case, would you agree with me that the police’s authority to do things depend on the circumstances, that police shouldn’t have the authority to stop people or vehicles without some grounds or reason to do so?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. In your witness statement, I think you declined to sort of provide an opinion on whether the use of the Emergencies Act was necessary. And I know my friend for the Government of Canada took you to a couple of examples of how it was helpful. Would you agree that there’s a difference between legislation or an order that is helpful and one that is necessary?
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Cara Zwibel, Counsel (CCLA)
Okay. It would probably be helpful to the police’s work to have all kinds of authority but there are other considerations that we need to consider; right?
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Cara Zwibel, Counsel (CCLA)
Okay. And you stand by the position that’s in your witness statement that you don’t take sort of a position one way or the other on the necessity of the Emergencies Act?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you, just one more area. And I think this has been covered so I just want to doublecheck. I apologize. I’ve had some issues with my Zoom so if you’ve answered this, I apologize. The role of Navigator, what was your understanding of their role?
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Cara Zwibel, Counsel (CCLA)
And my understanding is that they were contracted prior to the Convoy to deal with some of the change management within the organization and then there was a bit of a pivot; is that accurate?
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Cara Zwibel, Counsel (CCLA)
Okay. Were they involved in operation decisions?
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Cara Zwibel, Counsel (CCLA)
Okay. And when you became the Acting Chief, did you end the contract with Navigator at that time?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you, Chief Bell. I don’t have any other questions.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Superintendent Beaudin. I'm on Zoom. I don't know if you can - - can you see me?
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Cara Zwibel, Counsel (CCLA)
Okay. I just have a few questions for you, and I only have five minutes to ask them, so I will be brief. Hi my name's -- I'm sorry. My name's Cara Zwibel, I am counsel for the Canadian Civil Liberties Association. You mentioned in -- when you were being questioned by Commission Counsel, you talked about the so-called separation of church and state. So the interference, you know, the concern about political interference. Can you just expand a little bit about sort of the specific concerns that you have around that?
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Cara Zwibel, Counsel (CCLA)
Sorry. I'm sorry. My question wasn't clear. I didn't mean political interference in this instance, I mean generally what is the concern about the -- about political level individuals interfering in police operations?
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Cara Zwibel, Counsel (CCLA)
Okay, so there's a concern about the politicisation of something that should be a matter between police and community? Okay.
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Cara Zwibel, Counsel (CCLA)
Now, you were asked about the negotiations with the City of Ottawa. Did you have concerns there that there was -- sorry, negotiations that the City of Ottawa was engaged in with protesters, that, you know, there was this potential deal to try and move some cars out of the residential areas. Did you have concerns about political involvement at that level?
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Cara Zwibel, Counsel (CCLA)
Okay. So it was in a sense ---
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Cara Zwibel, Counsel (CCLA)
--- where the police ---
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Cara Zwibel, Counsel (CCLA)
Okay. And so I know we've covered the correspondence that you had with the Deputy Minister Stewart at the federal level. Did you have any contact with provincial political officials or deputy ministers related to negotiations with protesters or, you know, anything that might be offered by a provincial government that could be seen as a win for protesters?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. So there was some provincial involvement in terms of the Windsor Ambassador Bridge blockade, but nothing that you're aware with respect to the situation in Ottawa?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you so much. Those are all my questions.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Mr. Sloly. I'm joining you via Zoom. Can you hear and see me?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. My name's Cara Zwibel. I'm a lawyer for the Canadian Civil Liberties Association. And I have a few questions for you, and I think -- I apologize because I know you're having to go back and forth in time here, but I think we might actually talk about some of the other sort of tripartite type meetings that you were just mentioning, some of the ones that you had participated in. So I'm going to be asking you about a few meetings that involved Commissioners Lucki and Carrique, as well as the Head of CSIS, Mr. Vigneault, as well as Deputy Minister Rob Stewart and Jody Thomas, who I believe was the National Security and Intelligence Advisor to the Prime Minister. Before we do that though, I just -- we're going to do that by looking at some other legal counsel's notes, the notes that we've looked at a number of times. But before we go there, I just wanted to get at some of your notes and ask you a few questions. And this is document OPS00014484, and we would be starting at page 20, please. These are, I think, notes you said you sometimes send yourself an email or make notes through Outlook or your email program about things that are going on. So on page 20, this is a call, sort of reporting on a call, I'm not sure whether it was a call you made to Yasir Naqvi or a call that he made to you. Do you recall?
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Cara Zwibel, Counsel (CCLA)
Okay. So this is January 31st, so I guess the -- so the Monday or -- Monday, yes.
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Cara Zwibel, Counsel (CCLA)
The Monday, okay. And he was contacting you because he's an MP in the Ottawa area?
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Cara Zwibel, Counsel (CCLA)
Okay. And he also was asking how he could help?
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Cara Zwibel, Counsel (CCLA)
Okay. And do you know, was he going to engage with his network within the Federal Government to see what he could do? Was this the sort of first outreach from someone within the Federal Government?
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Cara Zwibel, Counsel (CCLA)
Okay. So the sort of the first political person, let's say, within the Federal Government?
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Cara Zwibel, Counsel (CCLA)
Okay, great. Thank you. And if we can just scroll down, I think it's the next page. Thank you. This is a call from the Deputy Solicitor General of Ontario, Mr. di Tommaso?
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Cara Zwibel, Counsel (CCLA)
And this is from February 2nd. And if you could just scroll down a little bit. So he asked you if there was any interference of hospital or medical staff from the demonstration, and you advised yes. You asked if you were getting -- he asked if you were getting help from the OPP, and you advised yes, and that you were also getting support from the local Crown office. And you also told him that other than the OPP Commissioner, he was the first provincial official to call you regarding the demonstration. Do you recall how or if he responded to that statement?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And did that call happen?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
And -- I mean, were you making that statement because you were surprised that by this point, I guess February 2nd, we're at the Wednesday or -- Wednesday? Wednesday?
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Cara Zwibel, Counsel (CCLA)
That by that point were you surprised you hadn't heard from someone at the provincial level yet?
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Cara Zwibel, Counsel (CCLA)
Okay. Do you recall where things went with Minister Jones when you -- with the Solicitor General when you did eventually speak to her?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Thank you very much. Okay. And now, if we can take a look at that other document I mentioned. So this is OPS00014454, and we're going to start at page 35. So these are, once again, Ms. Huneault's notes.
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Cara Zwibel, Counsel (CCLA)
No, go ahead.
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Cara Zwibel, Counsel (CCLA)
Okay. And did Solicitor Jones -- Solicitor General Jones, at any point I guess between when this conversation took place and your last day in office on the 15th, did that briefing to the Premier or other provincial ministers ever happen?
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Cara Zwibel, Counsel (CCLA)
Okay. But you didn't provide a briefing. I mean, you weren't asked to arrange one?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. Okay, so this is, again, Ms. Huneault's notes, and this is looking at the February 3rd meeting in the evening with Mr. Kanellakos, Mr. Stewart, Kevin Maloney, Commissioner Lucki, David Vigneault is at this meeting. I'm not sure what that middle name is, Press, I don't know if you know. That's fine. So I just want to... If we can scroll down just a little bit. So there is the Prime Minister's Office, you know, wants to open a line of communication here. I'll give you a moment to read right through this. I'm going to ask you about a particular part. There's a note: "Understanding we've avoided the worst but now dealing with illegal protesters. We are risking public confidence to solve this problem. [Government] want[s] to be helpful but has limits. What can we do? If we were going to engage then who would we engage with?" There's questions about by-law and the Highway Traffic Act enforcement. Can we scroll down a little bit more, please? Yeah, keep going. I know that -- so there's a bit -- something from Mr. Kanellakos. A little bit -- next page, please. Sorry. Okay. And then -- sorry, can you scroll down just a little bit more? So these are, I think, RS for First Minister Stewart, and he's asking about enforcement and what leverage do you have, and this is the note that your counsel has written: "If you want an assessment of risk of this demonstration please frame the questions properly so you can get the info you need. Don't appreciate you suggesting I police differently based on colour." And I think Mr. Stewart is saying that there's a reference that a minister said this: "Your observation is very insulting to me." And he's, I think, saying "I hear you." And then you're providing him with a briefing about the risk assessment. Do you recall this exchange and what this was about?
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Cara Zwibel, Counsel (CCLA)
Do you mind telling us about it?
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Cara Zwibel, Counsel (CCLA)
Okay. And was -- this was a comment made in the meeting, or was it reflecting something that had been said by a Minister elsewhere? It wasn't sort of clear to me from the notes if ---
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Cara Zwibel, Counsel (CCLA)
Okay. Okay. So would you agree that, even at this point, we're at the 3rd of February there, there is starting to -- you're starting to feel some significant pressure from the government about the situation?
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Cara Zwibel, Counsel (CCLA)
Was this a -- I know that in your testimony on Friday you mentioned that there were a few points where you felt that individuals both at the federal level and the provincial level had made some public statements that you felt undermined the public trust in the Ottawa Police. Is this -- I know this wasn't a public statement, but is this the type of comment that you're talking about?
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Cara Zwibel, Counsel (CCLA)
I think you're right about that.
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Cara Zwibel, Counsel (CCLA)
Right.
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. And can we scroll down again to page 38, towards the end of the page. This is the same meeting. And I think you've been talking -- there's been some discussion about the possibility of negotiations. I think Mr. Kanellakos said, you know, is it worth it to negotiate. Mr. Stewart -- or, sorry, Mr. -- sorry, can we scroll down to just the next page? So I think this was Mr. Stewart saying, "I hear you say yes it's productive to negotiate." And you say, "I need constructive conversation and questions from all levels of government." So in this meeting, am I right that you are -- you're communicating or trying to communicate to the federal government representatives that, as you said before, all options are on the table, the federal government, I think, Mr. Stewart was interested in understanding what the group needed to feel like to have a win. There's a statement I think earlier up that was attributed to him. Is that sort of the nature of the discussion that's happening here?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. And can we just go down to the middle of page 40? This is where Mr. Vigneault comes into the conversation. And I think that first note is, "This is unprecedented." The word of the day or the word of the Commission I would say. "The social media is creating reactions." And then he talks about command structure. So, "- we need to break this down better. We can look at foreign interference, observe the people involved are nimble (ex-cops) - might be some things to be done to expose their roles..." I'm not sure what the thing in brackets refers to but ---
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Cara Zwibel, Counsel (CCLA)
Okay. And then "Notion of engagement - people below the PM and Ministers that may better understand the dynamics. Today press conf[erence] - she is more organized! They have lawyer." So I'm not sure if you -- do you recall those things being mentioned? Do you know what Mr. Vigneault's doing there? Are these sort of the items he's taking back to look at?
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Cara Zwibel, Counsel (CCLA)
Right.
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Cara Zwibel, Counsel (CCLA)
Okay. And so am I right that - --
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Already over my time. Okay. Can I just pose maybe one or two more very brief questions, Commissioner?
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Cara Zwibel, Counsel (CCLA)
All right. I will do my best. Can I just ask about Mr. Vigneault? Is it accurate to say that at this stage he hadn't formed any opinion or hadn't made an assessment about whether this was, you know, a foreign influenced action, or that these were things that he was going to explore but there was no assessment at this stage?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. And can we just briefly go to the bottom of page 92, and this will be my last point. This is another one of these meetings, I believe. This is the one on February 6th with Mr. Vigneault and Mr. Stewart are in this meeting again, as is Mr. Di Tommaso. And if we go to the bottom of page 92 -- yeah. So Mario, I think that's Mr. Di Tommaso, "No appetite to engage and think fed[eral government] needs to step up and engage." And then if you can scroll down? And then I think this is Ms. Thomas saying, you know, if this -- "If not Ottawa, would prov[ince] be looking [at] fed[eral government]" And he replies, "Yes, this is a trucker protest [because] of mandates [at] the border that Fed[eral Government] put in place." Do you recall this exchange?
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Cara Zwibel, Counsel (CCLA)
Okay. Did you -- was that your overall sense that Mr. Di Tommaso was communicating to you that the provincial government had no appetite to engage in sort of the negotiations that were being discussed?
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Cara Zwibel, Counsel (CCLA)
Thank you. Thank you very much for answering those questions and thank you, Mr. Commissioner, for the indulgence.
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Cara Zwibel, Counsel (CCLA)
Good afternoon. Can you see and hear me okay?
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Cara Zwibel, Counsel (CCLA)
My name is Cara Zwibel. I am counsel for the Canadian Civil Liberties Association. I wonder if we could pull up Document PB.CAN.00001584, and this -- just while it's getting pulled up, I believe is an email chain related to the technical briefing that you mentioned earlier that -- I guess there several technical briefings that happened. And if we scroll all the way down to the bottom, just so we can see where this starts, so this is someone in the Communications Branch of Public Safety and writing to say that there needed to be a follow up, a second -- I think here, we're talking about a media briefing; is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. Because there wasn’t enough time for all the questions, given some other briefings that were going on. And if we scroll up a bit more, there's some discussion here about the possibility of doing this another way, could we do this in writing? I gather at this point everyone in your department is running on fumes and there's quite a lot going on, and the idea of doing yet another briefing is not necessarily something you feel is the best use of time; is that an accurate characterization?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. And can we now go to Document SSM.CAN.00002668? So I think this is going to be, I believe, your speaking notes for -- maybe it's one, maybe it's all of these technical briefings. And if we can just go down to the first full paragraph on page 3. And I think this is the document that we were talking about earlier about the need to focus on the public safety portfolio elements a bit more and not duplicate what Justice or other departments might say. And so -- yes, okay. So on this page -- I gather this is roughly what you communicated during these briefings. So first, noting that the Emergencies Act is a significant step, one that will help ensure law enforcement across Canada, at broad and clear authority to protect public safety, ensure out borders remain open, and safeguard our national security. And then scrolling down a bit, it's also noted that this is a message to people who are participating in these protests and interfering in critical infrastructure, that there will be consequences. And then at a little bit more, the next paragraph notes that these measures will supplement existing provincial and territorial measures and assist the RCMP in becoming integrated. I think this -- it probably speaks a little bit to that question of avoiding the swearing in and some of that red tape. And then it's this last next paragraph that I want to ask about. So it says: “It’s important to underscore that invoking the Emergencies Act does not give the federal government the authority to direct the Police Services in any other jurisdiction.” So two questions, I guess, but the first is -- is that statement, that the use of any other jurisdiction -- are you saying here that using the Emergencies Act allows the federal government to direct the federal police, the RCMP? Or are you just clarifying that nothing in the Emergencies Act changes the normal situation where the government does not direct police in their operations?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. But would you agree with me that while invoking the Emergencies Act doesn't give the federal government the authority to direct police services of any jurisdiction, the orders, the Emergency Orders that were made under the rubric of the Act grant police new authority to enforce those measures granted -- sorry, can you just answer that.
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Cara Zwibel, Counsel (CCLA)
That’s okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And just like the Criminal Code gives the police certain tools, it’s ultimately going to be police officers that will make determinations about the manner of enforcement?
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Cara Zwibel, Counsel (CCLA)
Okay. And ultimately police authorities that will decide how they will exercise their discretion, this notion of police discretion as an important piece of this; would you agree?
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Cara Zwibel, Counsel (CCLA)
Okay. And you would agree that these orders under the Emergencies Act provided all police across the country with the authority to enforce these new measures?
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Cara Zwibel, Counsel (CCLA)
Okay. And although the federal government was no directing the police service of any jurisdiction, would you agree that by invoking a federal emergency, and making the Emergency Orders the federal government was clearly intending to communicate a message not just to people participating in protests but also to law enforcement of all jurisdictions that this is something the government takes very seriously and were looking to you to enforce?
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Cara Zwibel, Counsel (CCLA)
I think at some point also Minister Blair made a comment. This was a bit before the Act was invoked but I think he was sharing with the media that this was something the federal government was considering. And he said it was important that police do their jobs. Do you recall that comment?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And Mr. Stewart, in your testimony earlier you said that enforcement -- and I think this is when you were talking about the engagement proposal. That the engagement proposal was not really an alternative to enforcement; it was something that would be used to try to shrink the footprint, as we’ve heard. And sort of lay a path to eventual enforcement. And I think you said that enforcement was only a matter of time.
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Cara Zwibel, Counsel (CCLA)
And I think you also told my friend, Ms. Taman, there was always going to be a police action to dismantle what was going on in Ottawa. It was a question of timing.
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Cara Zwibel, Counsel (CCLA)
Okay. And one more question related to -- there was a document that you were taken to before and this is around the relationship with the Government of Ontario and the powers that they have under their Emergency Act or their Emergency Management and Civil Protection Act. And I think you noted that the Ontario legislation had more teeth than the federal legislation in terms of the penalties. Do you recall saying that?
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Cara Zwibel, Counsel (CCLA)
Okay. But you would agree with me that the provincial legislation didn’t allow for the kind of broad financial powers that were included in the emergency regulations invoked -- enacted by the federal government.
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Cara Zwibel, Counsel (CCLA)
So that the freezing of assets immediately without notice or due process is likely something that the province would not have been able to do or is not contemplated under their legislation.
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Cara Zwibel, Counsel (CCLA)
Okay. And can we just go back to that PB.CAN00001584. This is the email chain again related to the technical briefing. And sorry to jump around a little. I’m just trying to use my time as effectively as I can. So if we just scroll down a little bit -- keep going. Thank you, right there. So Mr. Rochon, this was again I think you were discussing sort of how to make the best use of everyone’s time. And it’s a very busy time. And you note there was better control in the first meeting because it was one that you were chairing. “Second (2nd) brief was bananas -- Justice is at fault.” Can you tell is a bit about that second briefing and what happened there in terms of the communications?
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Cara Zwibel, Counsel (CCLA)
Okay. So it’s more -- it’s a question of the procedure. Is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you very much. Those are all my questions. Thank you.
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Cara Zwibel, Counsel (CCLA)
Thank you. Good afternoon. Can you hear me okay and ---
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Cara Zwibel, Counsel (CCLA)
-- see me hopefully?
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Cara Zwibel, Counsel (CCLA)
Okay. Good afternoon. My name is Cara Zwibel. I am Counsel for the Canadian Civil Liberties Association. A lot of the questions I'd intended to ask you have been covered, so I just have a few things I want to take you through and they are relevant to some of the issues that Mr. Cameron was just talking to you about. That trade corridor email, and if you want, we can pull it back up, but you might be able to answer this question without it. But there was -- I think you described it just now as a provocative suggestion in there about, you know, letting Ontario know that if they wanted the federal government to take some sort of action, Ontario would have to declare an emergency. And I take it you -- it was your view that the federal government would not really be in a position to declare an emergency if Ontario, where probably the most significant of the blockades were taking place, had not yet taken that step. Is that accurate?
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Cara Zwibel, Counsel (CCLA)
Sure. So I've just -- there was the suggestion in this email, I think you talked about sort of this poison pill where Ontario needs to be made aware that if they expect the federal government to step in that they will have to declare an emergency. So leaving aside I guess that sort of characterization of it, was it your view at the time that the federal government could not or would not be in a position to make use of the Emergencies Act unless or until Ontario had declared an emergency?
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Cara Zwibel, Counsel (CCLA)
Sorry.
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Cara Zwibel, Counsel (CCLA)
Okay. And I know you said that, you know, while all this was happening unbeknownst to you, things were already in the works in Ontario to declare an emergency. So I take it, that notion was never communicated to Ontario, by you at least. Or are you aware whether anyone articulated that to Ontario, that the federal government's emergency power is unlikely to be used unless Ontario has declared an emergency?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Sorry, just eliminating things that have been covered. There's a few emails right around when Ontario declared the emergency where you're -- you seem pretty happy that that's happened; right? That's a significant turning point potentially, and especially I think when you see the Ontario -- the orders and understand the potential to use those to incentivize drivers to leave. Those seem to be useful powers to you. Now there was a document -- if we can turn up SSM.CAN.00000409? And just while it's coming up, I think this is an email from -- so I think this is a different -- I think there's a Doug -- oh, no, sorry, there's a Mike Jones that we've heard about. This is a Doug Jones, who I think is in Ontario at the Ministry of Transportation. And we can -- sorry, we can scroll down to the bottom, just so Mr. Keenan can see where this starts. So this is on the 15th of February. And Mr. Jones from the MTO has written to you, "Further to our discussion this morning, I was in contact with Deputy Minister Di Tommaso. He advised that he had a similar conversation with the OPP leadership earlier today. I suspect that we will see more field action related to vehicle registrations in the very near future." And then just scrolling up, you note that on the federal side -- you appreciate the update. It's a positive development. "On the federal side, the regulatory orders under the Emergency Act are just now signed, and [you've] briefed infrastructure operators [...]. I think there will be some early actions on freezing financial accounts to be used to fund illegal blockades. The combination of Ontario and federal measures should [I assume it's really] help restore law and order on the streets in Ottawa, and make it easier to keep the bridges open to the US." And he writes back, "Great news [...]. I'll be watching for that..." So, first of all, can you tell us, do you recall that discussion that's referenced further to our discussion this morning where Mr. Jones says Mr. Di Tommaso had similar conversation with the OPP leadership? Do you have any recollection of what that's about?
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Cara Zwibel, Counsel (CCLA)
I think ---
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Cara Zwibel, Counsel (CCLA)
--- this is the end. Yeah.
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Cara Zwibel, Counsel (CCLA)
It's okay. I know it's a long time ago, so if you can't remember, that's fair enough. I just thought I'd see if there was a ---
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Cara Zwibel, Counsel (CCLA)
Oh, right. Okay.
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. So I think what the similar is referring to is the -- it's further to our discussion this morning, the way it ---
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Cara Zwibel, Counsel (CCLA)
--- starts, so I don't know if that means you had maybe a phone call or something and this is an email follow-up. But do you know ---
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Cara Zwibel, Counsel (CCLA)
Okay. And do you know -- I mean, so we're at the 15th now. The provincial state of emergency was declared four years -- sorry, four years -- four days ago. Do you know sort of why we're just talking now about seeing more field action related to vehicle registrations, why there hadn't been any related to vehicle registrations prior to that?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. Do you -- so like you said, I mean this takes a bit of time, right, these emergency orders. It's not like when legislation is passed by Parliament and there's a fair bit of lead up and preparation time. When we have emergency orders, they're sort of operative the moment they're printed, and people are figuring out how to operationalise them. So at the federal level, when the emergency measures, the regulations, the orders were put in place on the 15th, it was still a few days -- it took a few days for law enforcement, for example, to start integrating some of those messages into their communications with protesters and things like that. Is that ---
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Cara Zwibel, Counsel (CCLA)
Sorry ---
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Cara Zwibel, Counsel (CCLA)
--- go ahead.
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Cara Zwibel, Counsel (CCLA)
No.
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Cara Zwibel, Counsel (CCLA)
No, I'm just wondering if that's -- I mean, you know that there's a little bit of lag time; right? It takes a little bit of time for these new powers to sort of make their way to the street?
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Cara Zwibel, Counsel (CCLA)
Which makes sense; right? The idea obviously behind using these emergency orders is that they need to be implemented quickly. So I think, and I know your colleague, Mr. Stewart, did tell us about the briefings, it sounds like there was quite a lot of them, to various stakeholders and to including media and things like that. Were you aware that Ontario may have been a little bit slower in terms of carrying out some of the powers that it had under its emergency order? When Mr. Freeman, from the Ministry of Transportation, testified before the Commission, I'm not sure if you had an opportunity to review his testimony. Did you?
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Cara Zwibel, Counsel (CCLA)
Okay. So Mr. Freeman, he was taken to a document where -- it's the suspension warnings that the Ministry of Transportation in Ontario is sending out to operators, saying that they might be -- their licences may be suspended if they don't stop engaging in unlawful behaviour under the emergency orders. So those are not sent out until the 17th of February. That -- is that timeline, is that something that you were aware of at the time? Did you know that there was this... I suppose what I'm getting at, and maybe I'll just come out and ask you. One of the questions for me is whether Ontario's orders might have been enough had they been given some time to work. Now, there's a question I think whether they weren't prepared to sort of engage in more serious enforcement until the federal government's emergency had been declared. That's a question only Ontario can answer, and we can't ask them. But do you think Ontario's powers, had they been exercised and given a bit of time to work, might have addressed the main problems, being Windsor and Ottawa?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Oh, okay.
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Cara Zwibel, Counsel (CCLA)
I'm sorry. The one last question I can ask. Did the federal government ever consider purchasing tow trucks, or has it purchased tow trucks since this incident happened? Is that something on the table or something you might suggest would be something to consider?
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Cara Zwibel, Counsel (CCLA)
Right. Okay.
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Cara Zwibel, Counsel (CCLA)
Thank you. Thank you, Mr. Keenan. Merci. Thank you, Mr. Commissioner.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Ms. Thomas. Can you see and hear me okay?
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Cara Zwibel, Counsel (CCLA)
How about now?
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Cara Zwibel, Counsel (CCLA)
Okay. Great. My name is Cara Zwibel. I am counsel for the Canadian Civil Liberties Association. If I could get the Clerk to put up just the witness summary? WTS00000071 and go to page 11? I don’t know if I’ll need to refer to this, but just so you have it in front of you. Your view, as articulated in your witness summary, is that the reference to the CSIS definition in the Emergencies Act should be reconsidered. Is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. And in your witness summary, there’s a statement that the CSIS definition requires the existence of a known actor carrying out activities in support of the threat of violence against persons or property; correct?
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Cara Zwibel, Counsel (CCLA)
Okay. And your colleague, Assistant Secretary MacDonald, said that in order for the 2(c) definition to be met, CSIS targets would have to move from using rhetoric to inciting or carrying out serious violence. Do you agree with that statement? I’m sorry, are you there? I’ve lost the picture of the ---
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Sorry. Is that a statement that you agree with?
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Cara Zwibel, Counsel (CCLA)
Okay. But the statement that in order for the 2(c) definition to be met, CSIS targets would have to move from using rhetoric to inciting or carrying out serious violence, I’m going to suggest to you is a misunderstanding of the CSIS definition, because individuals can’t be targets of CSIS if they haven’t already determined that there’s been -- if that 2(c) threshold -- that threshold has been met. Would you agree with that?
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Cara Zwibel, Counsel (CCLA)
Okay. And your view is that the CSIS definition, you’ve said before, threat to the security of Canada, is very narrow?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And because you understand -- sorry, not trying to interrupt you. Because you understand why there should be a high threshold before the State can start engaging in surveillance of its citizens?
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Cara Zwibel, Counsel (CCLA)
Right. Because unpopular -- expressing unpopular political views shouldn’t be enough to engage the surveillance apparatus of the state?
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Cara Zwibel, Counsel (CCLA)
Okay. And disagreement with the government should not be enough?
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Cara Zwibel, Counsel (CCLA)
But your view is that the Emergencies Act should have a broader definition of what constitutes a threat to the security of Canada? Is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. But again, you understand that in the case of the Emergencies Act, there were reasons why we would want a high threshold?
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Cara Zwibel, Counsel (CCLA)
Okay. And we’d want a high threshold because the Emergencies Act allows the government to bypass the Parliamentary process and rule by executive order, at least for a brief period of time?
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Cara Zwibel, Counsel (CCLA)
Right.
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Cara Zwibel, Counsel (CCLA)
Okay. There’s no disagreement there. I think we probably have different characterizations of what’s a high threshold. The -- you also understand, and maybe -- I’m not sure if this is the case, I was trying to follow your answers to my friend, Mr. Miller, but although you believe that the definition should be reconsidered in the Emergencies Act, you understand that currently, the definition of a Public Order Emergency in the Emergencies Act is tied exclusively and exhaustively to the definition in the CSIS Act?
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Cara Zwibel, Counsel (CCLA)
Okay. One other area I’d like to cover, your office, you’ve mentioned, is Consumer of Intelligence, and you receive intelligence from CSIS, CSEC, ITAC, Global Affairs, Foreign Intelligence partners, all of those?
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Cara Zwibel, Counsel (CCLA)
And in this case, I think there was also mention in the witness summary of receiving information from the CBSA, from Immigration, and Refugees, Citizenship Canada, from Parliamentary Protective Services, and from the Department of National Defence?
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Cara Zwibel, Counsel (CCLA)
Okay. And on the IRG minutes that you were taken to earlier by Commission Counsel, that tracker, that was a place where you had identified this intelligence gap that you characterized it as, and it said there “open source, non-criminal, non-terrorist”. So I just want to put a proposition to you, and you can tell me if you agree or disagree, and that proposition is this, that the difference between a society where individuals are monitored by the state, where there are no grounds to believe that they are going to engage in criminal or terrorist activity, and one way they are not, is the difference between a surveillance state and a free society. Is that a proposition that you would agree with?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Thank you, Commissioner. That’s fine. I’m done, thank you.
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Cara Zwibel, Counsel (CCLA)
Good morning. My name is Cara Zwibel. I am Counsel for the Canadian Civil Liberties Association. I just maybe want to pick up where my friend just left off. And maybe we could pull up the summary of -- the public version of the summary of the hearing that took place, the in-camera hearing, which is WTS.00000079, please? And I think it’s page 8 that we want to go to. Thank you, Mr. Clerk. And you can just scroll down to the bottom. So this statement, Mr. Vigneault, and I’m going to direct my questions to you, but if your colleagues have things they’d like to add, please do. This statement that your: “…understanding that the Emergencies Act definition of threat to the security of Canada was broader than the CSIS Act, …” Where did you get that understanding? I know Mr. Cameron said maybe we’d hear about it later, but I’d like to hear about it now.
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Cara Zwibel, Counsel (CCLA)
Okay. You asked the Department of Justice?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Now, I just want to -- if we could scroll down a little bit more? This is maybe a grammar or a language point that I want to understand. It says: “…he advised the Prime Minister of his belief that it was indeed required to invoke the Act.” Is that “it” referring to the Government? That the Government was required to invoke the Act? Or that the Prime Minister? Or?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
But your view was that ---
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Cara Zwibel, Counsel (CCLA)
--- based on this broader understanding ---
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Cara Zwibel, Counsel (CCLA)
--- of threats to the security of Canada, the Act should be invoked?
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Cara Zwibel, Counsel (CCLA)
Okay. So I just want to go through -- and Mr. Cameron went through some of the timeline here. You had an interview with Commission Counsel on, I believe it was August 29th? And in that interview, you noted that you had only learned that the Emergencies Act referred to the CSIS definition of threats to the security of Canada when the Government started to explore the possibility of invoking the Act? Is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. And then Commission Counsel prepared a summary of that meeting, that interview, with you and your colleagues. We’ve seen that and that was produced earlier. And then you had this in-camera proceeding that took place. And I understand that again you confirmed that it was CSIS’ view that the definition of threats to the security of Canada in the CSIS Act was not met during the convoy?
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Cara Zwibel, Counsel (CCLA)
Okay. And then under examination from the Government of Canada, this information that you advised the Prime Minister of your view that the Act should be invoked was disclosed for the first time? Is that right?
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Cara Zwibel, Counsel (CCLA)
So you said in your initial witness statement that you felt it was important to communicate at the IRG and to Cabinet that under CSIS’ analysis, there wasn’t a section 2 threat?
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Cara Zwibel, Counsel (CCLA)
Okay. I guess -- I mean, you understand that the purpose -- one of the purposes of this Commission is to assess whether the Act was properly invoked? Sorry, can you just answer audibly?
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Cara Zwibel, Counsel (CCLA)
Thank you. And I guess I’m wondering why you didn’t think it was relevant when you met with Commission Counsel in August to note that you had in fact advised the Prime Minister that you believed the Act should be invoked?
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Cara Zwibel, Counsel (CCLA)
Okay. But when you met with Commission Counsel in August, you felt that -- you didn’t feel that Cabinet confidence prevented you from advising that you had advised Cabinet and the IRG that you did not believe there was a threat within the meaning of the CSIS Act?
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Cara Zwibel, Counsel (CCLA)
Okay. Because I would put to you that those two pieces of information are really two sides of the same coin, that if one is not subject to Cabinet confidentiality, the other one also would not be?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. I don’t know if you had an opportunity to review the testimony given by Ms. Thomas? The National Security and Intelligence Advisor?
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Cara Zwibel, Counsel (CCLA)
Okay. So one of the things that Ms. Thomas said was that the CSIS definition of threats to the security of Canada is quite narrow. Do you agree with that? That it’s a narrow definition?
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Cara Zwibel, Counsel (CCLA)
Okay. So and I mean, you understand, of course, why, and I think you’ve alluded to this in other statements that you’ve made here today and in your witness statement, that there should be a high threshold before our intelligence services start surveilling or targeting Canadians? Would you agree with that?
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Cara Zwibel, Counsel (CCLA)
Okay. The holding or expressing of unpopular political views should not be enough to engage CSIS’ mandate?
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Cara Zwibel, Counsel (CCLA)
Okay. And do you understand why -- now, I know you take the view that the definition in the Emergencies Act is broader, but would you agree that the threshold to invoke the use of the Emergencies Act should also be a high one?
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Cara Zwibel, Counsel (CCLA)
Okay. But you understand that the Emergencies Act allows the government to rule by executive order for a period of time?
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Cara Zwibel, Counsel (CCLA)
Okay. And that the Public Order Emergency Section of the Emergencies Act allows those orders to let the Government assume control of public utilities, for example?
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Cara Zwibel, Counsel (CCLA)
And it allows the government to direct individuals to render certain services, like was done in this case with the tow trucks.
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Cara Zwibel, Counsel (CCLA)
Okay. And you understand that it can prohibit travel to, from, or within any specified area; that’s one of the things that the Public Order Emergency section allows?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Oh. Thank you.
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Cara Zwibel, Counsel (CCLA)
Just one last question. The placement that you were taken to by Ms. Khan that talked about the IMVE, the nature of ideologically motivated violent extremism, two of those of elements were willingness to kill or willingness to engage in serious violence. Would you agree with me that without those two elements, you just have people who care a lot about something and want to make a change?
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Cara Zwibel, Counsel (CCLA)
Thank you. Thank you, Commissioner.
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Cara Zwibel, Counsel (CCLA)
Good evening, Minister Blair. My name’s Cara Zwibel. I am counsel for the Canadian Civil Liberties Association. I just have a few minutes with you and I just want to ask you about those few days I guess between February 10th and the 14th. So I think this is when we switch from the SSE meetings to the IRG meetings; is that right?
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Cara Zwibel, Counsel (CCLA)
Okay. And is it fair to say -- I mean I think probably starting at the end of January, but certainly by this time -- that the federal government was feeling significant pressure from many corners to do something about what was happening across the country?
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Cara Zwibel, Counsel (CCLA)
Okay. And I mean this was a crisis not just at the borders but also at the seat of parliament? We had people in the Nation’s Capital.
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Cara Zwibel, Counsel (CCLA)
And around this time, the -- so the 10th -- I believe it’s the 11th when Ontario uses its -- it invokes its emergency under the Emergency Management and Civil Protection Act.
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Cara Zwibel, Counsel (CCLA)
Now -- so that’s the 11th, and I think we learned that the 12th is when the orders under that act were actually published, so the actual sort of operative provisions that gave police the authorities under that Act came into existence on the 12th.
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Cara Zwibel, Counsel (CCLA)
Okay. Now, then we have the 13th where there’s an IRG meeting. Was there any consideration I guess by you -- I’m not asking you to disclose the deliberations of cabinet -- but any consideration around giving the Ontario orders some time to work?
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Cara Zwibel, Counsel (CCLA)
Okay. Now, would you say that at this point you and perhaps some of your colleagues in the federal government are feeling embarrassed about what’s happening in Canada, feeling that there’s international attention and looks like Canada’s struggling to deal with the situation?
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Cara Zwibel, Counsel (CCLA)
Okay. Can we turn up SSM.NSC.CAN00002999? And this is another text message between you and your chief of staff. Now, I don’t think we have dates on most of these.
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Cara Zwibel, Counsel (CCLA)
Okay. And I think this is you on this side of the screen: "I’m wondering if anyone else is embarrassed that the protest on Wellington is expanding, dozens of new Porta-potties and a new stage. I’m embarrassed for my former profession and worried for my government which is being made to look very weak and ineffective. I can’t believe that I’m hoping that Doug Ford will save us."
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Cara Zwibel, Counsel (CCLA)
And I know I’m out of time. Can I just have one more moment to wrap up? Thank you, Commissioner. So the IRG on the 13th, and then there’s a cabinet meeting the night of the 13th as well, and then the following morning is when there's the First Minister's meeting and the Act is invoked. But we know that the morning or overnight leading into the 14th the blockade at Coutts was dealt with and arrests were made, and the Ambassador Bridge, I believe, had also been cleared. Is there anything that could have happened between the 13th and the 14th that in your view would have caused the Government or should have caused the Government to pause and say perhaps we don't need to take this nuclear option that we're about to take?
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Cara Zwibel, Counsel (CCLA)
Thank you very much. Those are my questions.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Mr. Mendicino, Minister Mendicino. My name is Cara Zwibel; I am counsel for the Canadian Civil Liberties Association.
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Cara Zwibel, Counsel (CCLA)
I want to ask you about an area that we haven’t really talked about and I’m going to ask for a document to be pulled up, and I have to apologize, I didn’t ask for this document in advance, but I don’t think it will be controversial; it’s just the Emergency Measures Regulation. It’s COM00000854. And I just -- I think you’ve probably given some of the clearest testimony we’ve heard about this issue of the separation of church and state, the relationship between law enforcement and government. And I think what you’ve said is that, you know, there needs to be good lines of communication open but that it’s not government’s role to direct the police on what to do in an operational sense; is that accurate?
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Cara Zwibel, Counsel (CCLA)
Okay. Now, in the case of the Emergencies Act and the enactment of these Emergencies Measure Regulations, would you agree with me that ultimately what these Regulations do is empower law enforcement -- give law enforcement more tools in which to exercise their authorities and discretion?
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Cara Zwibel, Counsel (CCLA)
Right. And in the case of -- and we won’t pull them up, but the other, the economic –- the other side of this, the economic measures that were enacted, in that case it empowered both law enforcement and financial institutions to –- with new powers?
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Cara Zwibel, Counsel (CCLA)
Okay. And would you agree that although this is a formal way of doing this, by using the extraordinary step of invoking the Act, this is a very clear message being sent by Government to law enforcement about what the law needs to be enforced is right now. In this moment, these are the laws that we need to be enforced and we need you to enforce them?
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Cara Zwibel, Counsel (CCLA)
Okay, thank you. Now, if we can scroll down a little bit, Mr. Clark, thank you; I think it’s the second –- sorry, third page; sorry, next page; a little bit further. Okay, so there’s a definition of critical infrastructure and then keep scrolling please. So stop right here; thank you. So this the prohibition on public assembly, and I know you said in examination by Commission Counsel, you talked about your concerns about some of the protestors and their links to extremist groups, but you also said a few times that: “There were a large number of people there who were there to exercise their lawful rights to protest.” Is that fair?
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Cara Zwibel, Counsel (CCLA)
And that in fact I think you said there were thousands who were there for legitimate and lawful purposes?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Now I know when the Government made the announcement about the use of the Act and what orders would be enacted; it talked about the measures being time-limited because there’s an expiration date so to speak on the use?
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Cara Zwibel, Counsel (CCLA)
It also talked about the measures being proportional?
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Cara Zwibel, Counsel (CCLA)
Would you agree with me that the definition of a public assembly, which is prohibited, and if we can scroll down so you can see the whole thing. Maybe we can just make it a bit smaller so that it will all fit. Thank you, Mr. Clark. So: “A person can’t participate in a public assembly that may reasonably be expected to lead to a breach of the peace by the serious disruption of the movement of persons for goods for the serious interference with trade.” Let’s just stop at that one. You might be aware as an MP coming from the Province of Ontario that we’ve had some labour strikes and threats of labour strikes in the last couple of weeks. Would you agree with me that during the existence of these orders a strike would likely be contrary to these orders?
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Cara Zwibel, Counsel (CCLA)
Okay. But I mean this definition is what law enforcement is going to use when they go out and decide whether someone is in violation of the order, and this is the document that perhaps a very diligent citizen would look to to find out what is permitted. Is that fair?
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Cara Zwibel, Counsel (CCLA)
Understood. So I’m not so concerned about whether there was a question that this applied to, for example, Wellington Street. I’m concerned about whether there was a question about where else this might have applied and the potential that it might have applied to a range of other places. Would you agree with me that there’s nothing in these orders that geographically restricts their scope? There’s nothing that says they’re confined to Ontario or they’re confined to border crossings?
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Cara Zwibel, Counsel (CCLA)
Okay. I want to just move to one other area. You mentioned in your testimony when you were being questioned by Commission Counsel, and I think this is the first that we’ve heard about this, that -- and I think you said it was on the 13th, this was when Commission Counsel took you to the email from Commissioner Lucki that, you know, that laid out sort of the current status of things. And you talked about a private conversation that you had with Commissioner Lucki where she told you about the situation in Coutts and shared her concerns. And I think you said that was a threshold moment for you. So and I appreciate that that would be a frightening set of circumstances to hear about. The timeline of events is that we have the IRG on the 13th in the afternoon and then the Cabinet meeting the evening of the 13th. And then on the morning of the 14th, the First Ministers Meeting, and then the Act is invoked. First of all, there’s no Cabinet meeting between the First Ministers Meeting and the invocation of the Act? Is that correct?
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Cara Zwibel, Counsel (CCLA)
Okay. The morning of the 14th, I think you would have learned that the Ambassador Bridge blockade had been cleared and that arrests had been made and that police had executed a safe operation in Coutts leading to arrests?
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Cara Zwibel, Counsel (CCLA)
Understood. I know you said in your testimony to Commission Counsel that one of the concerns about Coutts was that it could lead to a chain reaction. But would you agree with me that that didn’t happen? When the arrests were made in Coutts, actually many of the other protestors decided to leave because they actually weren’t comfortable being associated with that level of violence? They had different goals, and once they learned that that’s what was going on, they decided to voluntarily leave?
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Cara Zwibel, Counsel (CCLA)
Okay. I understand -- I think I understand what you’re saying. And I just -- I know I’m out of time. I just want to just clarify. I understand you’re saying if that had happened. But would you agree with me that the arrests happened in Coutts and that didn’t happen? What happened is that people decided to voluntarily leave Coutts and that situation, at least that particular location, was resolved for the time being?
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Cara Zwibel, Counsel (CCLA)
Thank you, Minister. Thank you, Commission.
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Cara Zwibel, Counsel (CCLA)
Good afternoon, Minister Lametti. My name is Cara Zwibel. I’m counsel for the Canadian Civil Liberties Assocation.
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Cara Zwibel, Counsel (CCLA)
I’m no Alan Borovoy, but I am big fan.
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Cara Zwibel, Counsel (CCLA)
So I’m going to -- and I do have some time. I want to thank my friends from the OPP and the Ottawa Coalition for giving me some of their time. Mr. Cameron took to the McLennan Report and there was some discussion about your roles. Would you agree with me that you’re not only the chief advisor, legal advisor to the government, you are also considered as Attorney General, the guardian of the rule of law and of the constitution?
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Cara Zwibel, Counsel (CCLA)
Okay. And in your witness statement -- and we can pull it up if we need but I don’t think I’m misstating it here -- you noted that the decision as to whether there was a national emergency was a political one; do you agree with that?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And do you agree, thought, that although it’s a political decision, your role -- one of your roles was to assess the legality or the constitutionality of both the decision to involve and the orders that were ---
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Cara Zwibel, Counsel (CCLA)
Sure. Can we get witness summary WTS00000077? And it’s on page 4, the bottom of page 4. It’s under the heading “Existence of a National Emergency”. And of you scroll down to the last paragraph, it says: "Minister Lametti further explained that the determination as to the existence of a national emergency was a political one. It was formed of the basis of factual inputs from implicated government departments including PCO and legal opinions provided by the DOJ."
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Cara Zwibel, Counsel (CCLA)
Understood.
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Cara Zwibel, Counsel (CCLA)
Okay. You talked with some my friends about the different -- the different possible, I guess, interpretations of threats to the security of Canada as set out in the CSIS Act versus the Emergencies Act -- and I don’t want to get into and I’m not asking about your legal advice here -- would you agree with me that in the CSIS Act what we’re talking about is whether, for example, CSIS can wiretap an individual?
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Cara Zwibel, Counsel (CCLA)
Okay. And with the Emergencies Act, what we’re talking about is whether the government can put in place orders that have the potential to restrict the rights of every person across the country?
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Cara Zwibel, Counsel (CCLA)
Okay. We’re going to get to the charter. The -- I want to talk a bit about the communication around the invocation of the Act. We can pull it up if we need to. Actually, it’s SSM.CAN.00004415. These are technical briefing notes, I think, that would have been prepared for you by someone in your -- in your office around potential questions that you might get about the Emergencies Act. And if we can go to page 3 -- sorry, you can see the beginning of the document there.
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Cara Zwibel, Counsel (CCLA)
Page 3, the CSIS threat definition is discussed, and the second question is: "On what basis does the Governor-in- Council determine that the ongoing protest situation reaches the level of threats to the security of Canada?" And it says: "As defined in Section 16 of the Emergencies Act, given the meaning assigned in Section of the CSIS Act, threats to the security of Canada includes…" And it lists those four things. Do you see that?
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Cara Zwibel, Counsel (CCLA)
Okay. I can take you to it if you want, but are you aware that in the CSIS Act, threats to the security of Canada means those four things? It doesn’t include them, it means them. And I’m sure, as a law professor, you know the statutory interpretation difference between those two things.
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Cara Zwibel, Counsel (CCLA)
Okay. So would you -- do you need me to take you to the CSIS Act?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
No.
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Cara Zwibel, Counsel (CCLA)
No, thank you. And I know now -- we’ve heard over the course of the Commission’s time that, in terms of the CSIS Act, it’s Section C that the government was relying on here.
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Cara Zwibel, Counsel (CCLA)
Okay. But here we have all four, potentially, laid out. There’s also a news release that was put out when the Act was invoked, and that’s COM00000657. And you know what, I’m not sure I have a page number written down here. Let’s just take a look, if we can scroll down further. So it lists the measures that we will be put in place, and here it’s describing what has to happen in order to declare a public order emergency. Sorry, stop right there, thank you, Mr. Clerk. It says: "Threats to the security of Canada may include the threat or use of acts of serious violence against persons or property." So again they were using discretionary language instead of sort of the mandatory language that’s in the Act; do you agree?
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Cara Zwibel, Counsel (CCLA)
Understood.
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Cara Zwibel, Counsel (CCLA)
Understood. This is what’s communicating to the public about why the government is doing what it’s doing.
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. Let’s talk about the charter. I know that when the Emergencies Act was invoked -- and I think we’ve seen some documents -- there’s concern that some people think that the Emergencies Act suspends the operation of the charter, and I take it that that is something that you are concerned about and that you want to provide people assurances that that’s not, in fact, what the Emergencies Act does?
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Cara Zwibel, Counsel (CCLA)
Okay. And you said, I think, in a couple of your statements publicly when the Act was invoked that lawful protest was permitted?
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Cara Zwibel, Counsel (CCLA)
Now, were you getting a sense by this point that maybe people that were participating in these protests did not have a clear understanding of what a lawful protest was?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
When Minister Mendicino was here yesterday, he said that he believes that although the -- he would characterize, I think, it the same way, that the protest was illegal, that there were thousands of people who were aiming to protest lawfully and thousands of people who were, so not people who were blocking trucks, people who were simply on the streets on their feet protesting peacefully.
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Cara Zwibel, Counsel (CCLA)
Okay. And the orders that were put in place under the Emergencies Act required those people to leave the area as well?
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Cara Zwibel, Counsel (CCLA)
Thank you.
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Cara Zwibel, Counsel (CCLA)
Okay. I want to talk about the financial measures that were put in place, and if we can go to SSM.CAN00004423? Would you agree that the financial measures gave both police and financial institutions discretion to freeze assets of individuals who were engaged in unlawful activity as it was defined under the emergency orders?
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Cara Zwibel, Counsel (CCLA)
You don’t know any cases where people's assets were frozen?
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Cara Zwibel, Counsel (CCLA)
Oh, okay. Well, we did hear from police, for example, that even though the orders captured insurance companies, for example, they didn’t provide any information to insurance companies. It sounds like they partly didn’t have time to get to that, but also, they were concerned that if insurance policies were suspended, trucks would not be able to leave the area. So that’s one example of where some discretion appears ---
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Cara Zwibel, Counsel (CCLA)
Okay. This is an email from you to some of your staff, and it's actually further down that we're interested in, if we can just scroll a bit. So this is one of your staffers is telling you that there is a part of your interview -- I think this is with Evan Solomon -- that’s circulating on Twitter with clickbait- style captions saying that people who have donated to a pro- Trump cause, any pro-Trump cause, could face legal, financial consequences. Matt Gurney has seen this being circulated, has asked for clarification, and they've got a little statement that they are asking you to approve.
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Cara Zwibel, Counsel (CCLA)
And it says: "We always ask our police forces as well as our prosecutors to act reasonably where they're going to work with the banks to ensure that they act reasonably. Obviously, there are going to be judgement calls that will be made and serious contributors will be treated more seriously, but as always, we're going to leave it to law enforcement to work with the banks as they already do in other areas that already exist such as in anti-terrorism financing and in others areas through FINTRAC." And further down in this email is the transcript from your interview with Evan Solomon, and he's asking you about the possibility of donors being targeted by these measures. And if you can scroll down to the third page, the bit that’s highlighted, this is the bit that sort of led to the confusion, but would you agree with me that here, you're not saying that someone who's donated couldn't have their assets frozen? That is contemplated by the orders?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
And then this will be my final bit. This is -- I guess we've heard about CSIS 101. I want to talk about Oakes 101. Talked about the proportionality, the need for all of the measures under the Act to be proportional. And would you agree with me that proportionality is assessed in context? So when a court is looking at whether a government action or measure is proportional, it assesses it against the objective that the government is trying to achieve?
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Cara Zwibel, Counsel (CCLA)
Okay. And the -- by invoking the Emergencies Act, the objective is to address a national emergency, a threat to the security of Canada under the Emergencies Act?
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Cara Zwibel, Counsel (CCLA)
Would you agree that but for the invocation of the Act, the orders that were in place would be unlikely to withstand Constitutional scrutiny?
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Cara Zwibel, Counsel (CCLA)
I think the Minister's indicated by his nod that he might agree with me, but I'll leave it there. Thank you, Minister.
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Cara Zwibel, Counsel (CCLA)
Thank you, Commissioner.
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Cara Zwibel, Counsel (CCLA)
Good afternoon. My name's Cara Zwibel. I'm counsel for the Canadian Civil Liberties Association. Mr. Commissioner, my friend, Mr. Honner from the Democracy Fund has given me five of his minutes, so he's going to limit his questioning to five minutes so I have 15 now, by my count.
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Cara Zwibel, Counsel (CCLA)
So I want to ask you about a theme that my friend, Mr. Migicovsky was just asking you about around sort of this question about the proper relationship between police and government. And I would imagine that as both, you know, employees in the prime minister's office and obviously residents of Ottawa, it might be difficult to sort of separate the fact that you’re looking at what’s going on both from a policy perspective but also living through it on -- right, you live here.
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Cara Zwibel, Counsel (CCLA)
Oh, you don’t live here.
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Cara Zwibel, Counsel (CCLA)
Oh, okay. So some of you live here. Now, I know you have access to briefings from the RCMP. I’m not sure if you get briefings or sit in on briefings from any of the intelligence bodies, but I think we’ve seen some documents that also sort of show you doing a bit -- a bit of your own -- you know, getting information as we all do from media sources, from social media. So, for example, can we pull up SSM.NSC.CAN00002940? And I think, Ms. Telford, this is a text message between and the Prime Minister. I think it’s a tweet from a reporter, “An admission police” -- this is February 2nd: "An admission police cannot control the situation. This is a complete mess and textbook mismanagement. They allowed the truckers to set up shop next to the PMO and West Block and where tens of thousands of people live and now realize the problem they helped create. Unbelievable." And I think this is the Prime Minister writing to you: "The PPS…" I think that’s the Parliamentary Protective Service: "…RCMP guy in caucus said as much. He said he didn’t want to let them onto Wellington, but it wasn’t his call." So are you sharing this with the Prime Minister and just sort of, “Here’s what’s happening on the ground. Here’s what people are talking about. Here’s what’s in the zeitgeist”?
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Cara Zwibel, Counsel (CCLA)
Okay. And then can we also pull up SSM.CAN00007729? I forget that they’re also here but I can’t really see them, so. So over here -- again, I think -- can we just scroll down just a little bit. So this is Evan Solomon: "Just walked through the protest on Parliament Hill tonight and I spoke to two guys carrying fuel containers past police. Police chief said protesters would not be allowed to bring fuel to trucks but these two said police are bothering them at all. No enforcement." And I think this is you. Sorry, can we scroll up? Was this one of your texts, Ms. Telford?
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Cara Zwibel, Counsel (CCLA)
Okay.
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Cara Zwibel, Counsel (CCLA)
Okay. And can we scroll down. So: "Saw this type of things happen when I left Hill. Gas coming in and cops were just standing looking at them walk by." We’ve heard evidence in the Commission that, at some point, protesters started filled jerrycans with water as a bit of a tactic so that it looked like the police weren’t doing anything about gas being brought in but, in fact, it was water. Is that something that you were aware of, or have you heard about that during the course of the Commission?
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Cara Zwibel, Counsel (CCLA)
Okay. Is it fair to say that what you were seeing, both on social media, and in the media, and on the ground here in Ottawa, as residents -- or part-time residents, maybe -- weren’t sort of matching what you were hearing from the police, from briefings from the RCMP?
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Cara Zwibel, Counsel (CCLA)
Okay. Can we go to Mr. Clow’s notes, SSM.NSC.CAN00002941? It’s page 11 of the PDF. And if you can make it just a bit bigger. So I think -- I don’t think we have a date on this, although I think, based on where it’s placed in the document, we’re maybe -- I think it’s -- it’s after the note that you identified, Mr. Clow, as being on February 9th.
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Cara Zwibel, Counsel (CCLA)
Okay, so February 10th. So this is, I think, the -- is this the three of you, or is this the other JB?
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Cara Zwibel, Counsel (CCLA)
Okay, the other JB and the Prime Minister: "KT will call Clerk next. You’re not being briefed by intel officials. Someone on US side who can give best advice. Surely, someone is system; someone played out plan." And I’m not sure what: "RCMP intel, Lucki - anyone else to report on this." So what is this -- can you tell me what this note means, “Not being briefed by intel officials”?
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Cara Zwibel, Counsel (CCLA)
Okay, so not a lack of intelligence, but not as much as you’d wanted?
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Cara Zwibel, Counsel (CCLA)
Is that fair?
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Cara Zwibel, Counsel (CCLA)
Okay. In your witness summary -- and I can bring it up if you’d like, but there’s the lessons learned sort of section, or a place where you’re pointing out some, you know, areas that you hoped the Commission could comment on. And on of the things you say there: "The panel suggested that the Commission provide further guidance on the independence of police operations. Mr. Broadhurst…" So that’s the other -- the other one who’s not here, sorry: "…underscored that the government understands the importance of not dictating police operations, and at times it was difficult to know whether the police and the government shared the same ultimate goal. The government should be able to discuss a desired outcome, for example, to clear the occupation and blockades, and share concerns about the consequences that the country would face if that does not happen." (As read). Did you -- during the time that the blockades and occupation were happening, did you have doubts about whether the police planned to clear them?
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Cara Zwibel, Counsel (CCLA)
Okay. But you would say that you did believe that you -- that police and government had the same ultimate goal? There were frustrations and maybe mismatches in terms of timing, but was there a doubt in your mind that -- like, I know it sounds silly but did you think that the police’s plan was to just allow this to continue?
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Cara Zwibel, Counsel (CCLA)
Okay. And once the Emergencies Act was invoked -- I’ve talked to this with some other witnesses and I think they’ve agreed that, although government can’t direct police, one of the things that a public order emergency does is communicate very clearly to police that there are certain things that the government wants to happen and they’re giving them the tools to make those things happen; do you agree with that? So, in this case, the government wants the flow of funds to stop going to people that are funding the blockades ---
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Cara Zwibel, Counsel (CCLA)
--- and it’s giving the RCMP and financial institutions the tools to make that happen.
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Cara Zwibel, Counsel (CCLA)
Okay. And once the Emergencies Act was in place and the Orders were in place, I know the IRG continued to meet. And there was some tracking of the measures, of how the measures were working; right? There was an attempt to collect that information so that you could see what impact the Orders were having; is that fair?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. One other area I want to talk about, I understood your evidence on the engagement proposal and why that didn't go further because there wasn't sort of a tangible plan there. I just wanted to ask you about a different aspect of this. And if we can pull up -- sorry, it's -- I hope I have it here. Yeah, SSM.NSC.CAN.00000292. This is one of the -- I think it's an SSE meeting notes -- sorry, let's just take a look. Yes, SSE, and it's from February 3rd. And if we can scroll, it would be probably -- I think it's page 8. And, Mr. Clerk, you might need to -- oh, you don't have to rotate it, but if you can just move it over -- yeah. So I just want to ask about these creative -- some of these creative alternatives on this side of the screen. One is, ""Le Grand Debat" Modelling after 2019 Yellowjackets protest in France, the country launched a national listening exercise. Cross-country meetings (Fr[ench] President attended some)" Did that suggestion make it to the IRG or to Cabinet? Was that something that was explored beyond -- I guess beyond this sheet of paper?
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Cara Zwibel, Counsel (CCLA)
February 3rd, I believe.
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Cara Zwibel, Counsel (CCLA)
Okay. And just if we can scroll down just a little bit, the last item there, "Communications Shift Encourage shift in communications ("we hear you, we understand, go home") [Question] Does this legitimize protest?" What about that discussion? Was there a discussion about -- and I know we saw text -- a message that was communicated I think through Minister Leblanc from Jason Kenney saying, you know, something about calling them all Nazis didn't help. I think here what someone's getting at is maybe we should tone down the rhetoric and try to -- even if we're not going to meet with them, try to in a communications way tone it down. Was that something that was discussed or considered?
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Cara Zwibel, Counsel (CCLA)
Okay. Last thing I'm going to ask, I know I'm almost out of time, I just want to ask about -- and if we could pull up -- sorry, Mr. Clow's notes one last time. I think the Clerk probably knows the number, yeah. And here it's page 23.
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Cara Zwibel, Counsel (CCLA)
Okay. May I get one last one in?
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Cara Zwibel, Counsel (CCLA)
Thank you.
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Cara Zwibel, Counsel (CCLA)
So we're at February 14th, and maybe we can make it just a little bit -- thank you. So February 14th, 12:30, PM -- I'm going to look on my paper here. "PM taking..." I think that's maybe ---
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Cara Zwibel, Counsel (CCLA)
Okay. And then Jagmeet Singh, opposition leader can do it whenever -- the part that I'm interested in is this discussion about Quebec and, you know, I gather the -- I'm not sure this is -- I guess this is after the First Minister's meeting, so we know that Quebec is a bit concerned about the application of the Emergencies Act in the province. And it says, "without saying we're sending RCMP to [Quebec] - PM call Legault...no intention to do anything in [Quebec], other than [Ottawa] - Pablo..." I assume that's Minister Rodriguez, "...call to Legault? - military isn't [a] part of this - not looking to take over. Won't go to [Quebec] border." So it seem -- "if you don't need [it], then we're not going there."
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Cara Zwibel, Counsel (CCLA)
Okay. It wasn't ever communicated to the Premier of Quebec that the Act wouldn't apply there or that the police wouldn't take action there because that's not something that would have been possible ---
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Cara Zwibel, Counsel (CCLA)
--- given what the Order said?
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Cara Zwibel, Counsel (CCLA)
Okay. Thank you. Thank you for answering my questions. Thank you, Mr. Commissioner.
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Cara Zwibel, Counsel (CCLA)
Thank you, Commissioner. Cara Zwibel on behalf of the Canadian Civil Liberties Association. In February of this year, for the first time, the Government of Canada declared a public order emergency and put in place emergency measures that restricted the rights and freedoms of all people in Canada. These measures placed broad restrictions on the freedoms of Canadians to assemble and protest. They allowed for the Government to compel the provision of services and for personal assets to be frozen with no notice and no due process. These orders handed law enforcement agencies and financial institutions extraordinary powers. The Government may have intended these powers to be used in targeted ways, as drafted, they gave law enforcement across the country measures whose application went well beyond the blockades and could easily have been abused. I have three submissions. First, the Emergencies Act does not allow for the suspension of Charter rights, but without the existence of a public order emergency, the measures that were enacted would most certainly be contrary to the Charter. In the absence of circumstances amounting to a national emergency, they would constitute serious restrictions on fundamental rights and freedoms that are neither reasonable nor justified in a free and democratic society. So the question, was there a national emergency that justified these measures, is a crucial one. The Canadian Civil Liberties Association respectfully submits that this question is important not only for what it says about the events of January and February of this year, but also because of what it signals to future governments about when Parliamentary process can be bypassed to allow the government to rule by executive order and when extraordinary powers can be used. Second, the Government of Canada has offered a range of justifications for its decision to invoke the Act. Its primary justification articulated when the Act was first invoked is set out in its section 58 report to Parliament. Although that justification has evolved over time, its core elements are relatively simple and remain mostly intact. The justification focuses very heavily on economic disruption and harm. It also references concerns about the possibility of serious violence, either because of the presence of some violent extremists amongst otherwise non-violent protestors, the possibility that the protests would provide a cover for a lone wolf attack, or allow threat actors to recruit, or the concern that violence would erupt in clashes with counter-protestors. Apart from the economic concerns, the evidence on which the Government relies to back up these claims is extremely thin. The law enforcement and intelligence agencies, whose expertise should help inform the Government’s decisions, did not assess the protests as giving rise to a serious threat of violence. The most dangerous element we’ve heard about, the cell in Coutts, Alberta with a cache of weapons, was investigated and arrested by law enforcement prior to the Emergency Orders coming into effect without the use of any extraordinary powers, and without setting off a chain reaction of violence amongst protestors. The Emergencies Act was carefully crafted to avoid the excesses of the War Measures Act that proceeded it. Parliament intentionally identified a public order emergency by tying it exclusively and exhaustively to the definition of threats to the security of Canada found in the CSIS Act. This definition does not include economic harm or disruption, nor should it. It requires activities directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective. The legal threshold to make use of the Act was not met and a creative and privileged legal opinion from the Government that says otherwise doesn’t make it so. The Prime Minister agreed that the threshold is no lower to invoke the Act and restrict the rights of all Canadians than the standard set out in the CSIS Act to investigate and surveil a single individual. In our submission, the Government exceeded the bounds of the law in taking the steps it did. Finally, there’s no doubt that the blockades and protests gave rise to serious harms to the people living in communities where they occurred, that they caused significant economic disruption, and that law enforcement agencies were not well prepared to address them. The government, various governments, were struggling to get clear information from law enforcement about its plans and were wary of crossing the apparently still blurry line that risked undermining police operational independence. But the Government also felt a great deal of pressure to do something to address the situation and to be seen to be doing something. Instead of establishing clear and appropriate lines of communication, having frank discussions, and putting instructions about strategic priorities to police in writing, the Government gave law enforcement the biggest and most public nudge it could. It invoked the Emergencies Act and handed law enforcement across the country sweeping and unnecessary new tools and a clear political mandate to use them. One of the CCLA’s core values is equality, and specifically the belief that the freedom of no one is safe, unless the freedom of everyone is safe. We urge the Commission to bear this tenant in mind as it examines what the Government did and considers what future governments may do. Thank you, Commissioner. Thank you to Commission Counsel and to my friends.