In a phone call on February 2 — a few days after the self-styled Freedom Convoy set up in downtown Ottawa — Prime Minister Justin Trudeau spoke with Anita Vandenbeld, the Liberal MP for Ottawa West–Nepean. As an MP from the affected area, Vandenbeld was relaying what her constituents were experiencing.
They were already looking for someone to do something.
“A lot of constituents are calling me about what the PM is going to do about it, it’s hard because I know it’s not within your purview,” Vandenbeld said, according to a readout of the call that was tabled by the commission’s counsel on Friday. “People are frustrated and they just want somebody to do something to get the city back.”
Over five hours under oath on Friday, Trudeau told the Public Order Emergency Commission his version of how he became that somebody and, more importantly, why the Emergencies Act became that something.
That somebody needed to do something seems blindingly obvious — which likely explains why a plurality of Canadians continue to support the government’s use of the Emergencies Act.
But whether Trudeau was fully justified — in a legal sense — in doing exactly what he did is one of the ultimate questions before the commission. And while Trudeau likely walked away from Friday’s testimony feeling good about how he accounted for himself, the final ruling of Justice Paul Rouleau remains an intriguing mystery that might yet deprive the federal government of total exoneration.
Second-guessing Trudeau’s call
According to Trudeau’s testimony, the federal government found itself on February 14 with a dangerous and destabilizing situation that was not under control.
Though some will argue the federal government could have somehow done more to help resolve the situation before that point, Vandenbeld wasn’t wrong when she said this situation wasn’t within the PM’s “purview.” Never mind who the protest was aimed at (the “F— Trudeau” flags left little mystery about that) — other levels of government, municipal and provincial, had primary responsibility for, and jurisdiction over, the major roadways that were blocked.
And it’s fair to say that neither the federal government nor the Emergencies Act would have gotten involved directly if those other levels of government and police services had been able to prevent or resolve the blockades in Ottawa, Windsor and Coutts.
Months later, the commission functions somewhat as an exercise in counterfactual history.
What if, for instance, the federal government had engaged with the protesters? On Friday, Trudeau testified that doing so might have set a bad precedent by signalling that the government would meet with, or even change public policy for, anyone who was willing to blockade and occupy Ottawa’s Wellington Street.
What about the suggestion that police in Ottawa were very close to acting on a plan to clear the protest around Parliament Hill when the Emergencies Act was invoked? Trudeau dismissively testified that the federal government had heard such assurances several times before.
What about the fact that the blockades in Windsor and Coutts were cleared before the emergency measures came into force? Trudeau argued the Emergencies Act was still required to ensure the blockades weren’t re-established.
Trudeau told the inquiry that the final decision was his and described how he paused before signing off on the official note from the Privy Council Office. He considered, he said, what might happen if he didn’t move forward with the Emergencies Act — what if he waited and someone got hurt?
“But more than that, the responsibility of a prime minister is to make the tough calls and keep people safe,” Trudeau said.
He said the government was “able to solve the situation” without loss of life or serious violence. He said he was “absolutely, absolutely serene and confident” that he had made the right decision.
On that basis — and with the national security adviser, all of PCO and CSIS advising that he use the Emergencies Act — the prime minister probably has won the immediate political argument.
The final legal verdict is harder to judge.
Did it meet the legal threshold?
The Emergencies Act says a public order emergency “arises from threats to the security of Canada.” It says the definition of what constitutes “threats to the security of Canada” can be found in section two of the Canadian Security Intelligence Service Act.
CSIS determined that the protest and blockades did not meet that standard — at least for its own specific purposes. But the government argues that the interpretation, inputs, purpose and ultimate decision-making are different when the term “threats to the security of Canada” is being considered under the Emergencies Act.
Rouleau’s ruling on that question will be fascinating, whatever it says. For now, you can read duelling op-eds that find the government’s argument either reasonable or problematic. It’s also possible the drafters of the Emergencies Act simply failed to imagine a scenario in which other levels of government seem unable to exercise their own authority.
But Trudeau was noticeably ready and eager to make the government’s argument on this point. He leaned forward when the commission’s counsel turned to the issue and he asked for parts of the CSIS Act and Emergencies Act to be put up on screen so he could refer to the laws directly.
WATCH: ‘This was necessary’: Trudeau defends use of Emergencies Act
If Trudeau was weakened politically by the extended chaos of January and February — by the painfully unrequited sense that someone needed to do something — he asserted himself on Friday.
Except for not quite remembering the correct name of Vandenbeld’s riding (he thought it was Ottawa East-Nepean) he was on top of the details and arguments and ready to explain. Such traits aren’t always evident in his news conferences, or in the caricatures his critics conjure.
No one produced any embarrassing texts from the trove of documents the government has handed over to the commission. Questioned by a lawyer representing convoy organizers, Trudeau displayed some of the empathy that may have been lacking in his public comments this past winter.
Nevertheless, if the commission concludes the government fell short of the legal threshold, that would be an awkward final word on the matter for Trudeau, and for what Canadians have gone through over the past two and a half years.
The most interesting question anyone asked on Friday was whether Trudeau feared that his decision to invoke the Emergencies Act would embolden future governments to use it. It’s a sensible thing to worry about.
But perhaps we can all take some comfort from watching what played out on Friday and over the past month. The prime minister just spent five hours under oath, being questioned by a procession of more than a dozen lawyers, after half a dozen of his ministers were made to explain everything from their official interactions to their impertinent text messages.
The next time somebody thinks about triggering the Emergencies Act, they’ll at least know what they’re letting themselves in for.