CSIS head says he supported invoking the Emergencies Act last winter to address convoy protests
David Vigneault says other tools were 'just not enough to address the situation'
The head of the Canadian Security Intelligence Service (CSIS) says he supported invoking the Emergencies Act to address anti-COVID-19 vaccine mandate protests last winter because the regular tools were "just not enough to address the situation."
CSIS Director David Vigneault testified before the Public Order Emergency Commission Monday and sat for an in-camera session on Nov. 5. A summary of that behind-closed-doors hearing was entered into evidence at the inquiry.
Vigneault told the in-camera hearing that Prime Minister Justin Trudeau asked him for his advice at the end of a Feb. 13 meeting of the Incident Response Group, during which the Emergencies Act was discussed.
By that point, anti-COVID-19 mandate protests had gridlocked downtown Ottawa for weeks and had spread to border crossings.
"Vigneault explained that, based on both his understanding that the Emergencies Act definition of threat to the security of Canada was broader than the CSIS Act, as well as based on his opinion of everything he had seen to that point, he advised the Prime Minister of his belief that it was indeed required to invoke the act," said the summary.
That evidence has become a key moment at the commission, which has been hearing testimony since mid-October. The commission has been tasked with determining whether the federal government met the legal threshold to invoke the Emergencies Act.
The commission heard previously that Vigneault didn't believe the self-styled Freedom Convoy constituted a threat to national security as defined by the CSIS Act.
On Monday, Vigneault expanded on that, adding that the agency's enabling legislation is narrow in scope.
During his testimony, Vigneault said that multiple factors — the fact that CSIS knew "ideologically motivated violent individuals" were interested in the convoy, the size of the crowds and the fact that police resources were being diverted — weighed into his advice to Trudeau to invoke the Emergencies Act.
"And the fact that there was an evolving operational plan by law enforcement that, at that point, had not yet been put in place to be able to deal with this situation," he added.
"All of these elements of unpredictability, based on my experience, having been around national security issues for quite a few years now, led me to believe that the regular tools were just not enough to address the situation."
Under the Emergencies Act, the federal cabinet must have reasonable grounds to believe a public order emergency exists — which the act defines as one that "arises from threats to the security of Canada that are so serious as to be a national emergency."
The act also describes a national emergency as an urgent and critical situation "that seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it."
The act then points back to CSIS's definition of such a threat — which cites serious violence against people or property "for the purpose of achieving a political, religious or ideological objective," espionage, foreign interference or the intent to overthrow the government by violence.
Vigneault "further explained that the [Emergencies Act] cannot be read in a manner that gives CSIS the exclusive authority to determine whether there exists a public order emergency, as this is the responsibility of the federal government," said the interview summary.
"Vigneault explained that, although section 16 of the [Emergencies Act] references the definition of a threat to the national security of Canada set out in section of the CSIS Act, the two statutes are concerned with distinct issues."
CCLA calls it a 'novel interpretation' of the law
Vigneault said his understanding that the Emergencies Act's definition of a "threat to the security of Canada" was broader than the one in the CSIS Act came about after he asked the federal Department of Justice for a legal interpretation.
A lawyer for the federal government said the government has not waived solicitor-client privilege over the invocation of the act.
"This, I think, is the crux of the issue," Vigneault said during testimony Monday. "In the context of the Emergencies Act, there was to be separate interpretation based on the confines of that act."
WATCH | 'It was a separate understanding': CSIS director on differences between Emergencies Act and CSIS Act
The Canadian Civil Liberties Association questioned the broader definition of threats to the security of Canada.
"The government's argument appears to be that the Emergencies Act doesn't mean what it says," CCLA director Cara Zwibel said in a media statement Monday.
"It is relying on this novel interpretation to justify its decision to invoke."
National security adviser says act should be updated
Clerk of the Privy Council Janice Charette, who recommended that Trudeau invoke the act, defended that advice during testimony on Friday.
She said she weighed CSIS's assessment with other factors.
WATCH | Lawyer for Ottawa residents gets into heated exchange with CSIS director during inquiry
"It's the combination of all of these things and the escalation of all these things which, taken together, were enough for me in my advice to the prime minister," Charette told the commission inquiry Friday.
"My view was that it met the tests. Others may not share my view."
Jody Thomas, the prime minister's national security and intelligence adviser, told the commission that she believes the definition of a "threat to security of Canada" under the terms of the Emergencies Act should be reconsidered to better reflect the times.
Vigneault and CSIS deputy director of operations Michelle Tessier also told the commission behind closed doors that it's time to update the definition of a national security threat under the CSIS Act.
"In today's environment we really need to be looking at the definition of threats to the security of Canada; it's more threats to Canada's national interests," says a summary of both their interviews.
"Updating the definition to match the expanding expectations from government for more information from the intelligence service, for example relating to economic security, research security and pandemic and health intelligence, because the definition in terms of threat currently can be quite narrow."
Commissioner Justice Paul Rouleau allowed CSIS to share some testimony and evidence privately with the inquiry to protect the service's methods of operation and sources.
Commissioner chides lawyer
Vigneault's appearance before the committee led to a number of heated exchanges — including one with Brendan Miller, a lawyer who represents some protest organizers.
Last week, Miller seized on Vigneault's statement that the protests did not constitute a threat to national security under the CSIS Act.
Following Vigneault's testimony on Monday, Miller turned to questions about Confederate and Nazi flags that were seen during the early days of the protests in Ottawa.
Miller specifically asked Vigneault if CSIS identified a man who was seen at the Ottawa protest with a swastika. Vigneault responded that he wouldn't be able to provide further information about investigations in a public forum.
With his time running out, Miller suggested, with no evidence, that Vigneault knew that the man with the "Nazi flag" was Brian Fox of Enterprise Canada, a communications firm.
"I have not said anything of that respect," Vigneault replied. "I have not testified to that."
"You haven't testified to it, but you know it to be true, don't you?" Miller shot back as he was walking away from the podium.
Commissioner Rouleau chided Miller for the question, saying it was "not a fair statement."
Rouleau also criticized Miller for the way in which he asked the question as he was leaving the podium.
"Don't make statements back to the crowd as you leave the podium, please," Rouleau told Miller. "You're well aware of the appropriate way to conduct yourself."
Enterprise denied Miller's suggestion that Fox was carrying the flag during the protests, calling it an "unsubstantiated and deeply offensive accusation."
"There is no truth to this absurd and despicable accusation. Neither Brian Fox, nor anyone from Enterprise Canada was in attendance at the 'Freedom Convoy' protests in any capacity," a statement from the company said.
The statement goes on to say that Enterprise Canada and Fox plan to review their legal options and "take swift action to defend against this unsubstantiated attack on the personal and professional reputation of Mr. Fox."
Witnesses this week
Emergency Preparedness Minister Bill Blair, the first cabinet minister to appear before the commission, defended the federal government's decision to invoke the act, saying the protests at border crossings elevated the situation to a national security threat.
A summary of an interview he gave to the commission in September was entered into evidence Monday.
"Though Ottawa was facing significant challenges, Minister Blair was of the view that Parliament was continuing to
function fairly well," it reads.
"What concerned him the most were the threats to the critical infrastructure of Canada's [ports of entry] caused by the border blockades."
As the week goes on, the commission is also expected to hear from:
- Public Safety Minister Marco Mendicino.
- Intergovernmental Affairs Minister Dominic LeBlanc.
- Justice Minister David Lametti.
- Defence Minister Anita Anand.
- Transport Minister Omar Alghabra.
- Finance Minister Chrystia Freeland.
- Prime Minister's Office staffers Katie Telford, Brian Clow and John Brodhead.
- Prime Minister Justin Trudeau
Trudeau has defended the decision to invoke the Emergencies Act, calling it a "measure of last resort."
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With files from the Canadian Press
