Defence chief got legal advice on military’s role after Emergencies Act invoked: memo

Click to play video: 'Freeland says Ottawa convoy was ‘agonizing’ time for Canadians, government'
Freeland says Ottawa convoy was ‘agonizing’ time for Canadians, government
RELATED: Deputy Prime Minister Chrystia Freeland calls the period that the so-called "Freedom Convoy" encamped in downtown Ottawa an "agonizing time." – Jun 14, 2022

Canada’s defence chief received a legal memo that appears to address questions around the role of the military in aiding law enforcement shortly after Prime Minister Justin Trudeau invoked the Emergencies Act to clear out the so-called “Freedom Convoy” in February.

At the same time, the documents show front-line border officers were instructed to pull aside foreign nationals who were entering the country to join the convoy, and conduct secondary screening on those individuals.

The documents are part of a cache obtained by Global News through access to information laws that shed new light on how senior defence officials weighed the risks and role of the military in what is now widely described by law enforcement and political leaders as an occupation of the nation’s capital.

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Minutes after Trudeau announced the Emergencies Act on Feb. 14, the military’s deputy judge advocate general sent an email at 4:49 p.m. E.T. to both Chief of the Defence Staff Gen. Wayne Eyre and Deputy Minister of National Defence Bill Matthews with the subject line “updated legal aid memoire,” according to the documents obtained by Global News.

While the body of that email is entirely redacted and subject to solicitor-client privilege, a subsequent forwarding of that email on Feb. 18 includes a visible attachment titled “AideMemoire_CAFAssistanceLawEnforcement (OJAG – 14 Feb 22).docx.”

That attachment is almost entirely redacted in the ATIP release package.

The few visible lines state that the file is subject to solicitor-client privilege and include a subject heading called “CAF ASSISTANCE TO LAW ENFORCEMENT — LEGAL BASES AND AUTHORITIES.”

It goes on to reference Section 273.6(1) of the National Defence Act, which deals with “authorizing the Canadian Armed Forces to perform any duty involving public service” and explicitly states that the authority “does not apply to the provision of CAF assistance in relation to law enforcement matters.”

Further down, a brief line references Section 2 of the CSIS Act and its definition of “threats to the security of Canada,” before being again substantially redacted.

The document appears to end with uncertainty.

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“Given the lack of precedent it is not completely clear how, or if, orders or regulations tied to a public order emergency can be used to task or empower the CAF. NDA authorities are robust, known and contain no additional risks in their use,” the document states.

“The Emergencies Act is clear that a declaration of a public order emergency shall not be construed or applied to derogate from provincial and municipal (and where applicable, RCMP) control over its police forces.”

Defence Minister Anita Anand had on Feb. 3 ruled out a role for the military in ending the demonstration that would go on to spur the unprecedented invocation of the Emergencies Act.

“The Canadian Forces are not a police force,” she tweeted at the time.

“As such, there are no plans for the Canadian Armed Forces to be involved in the current situation in Ottawa in a law enforcement capacity.”

Global News reached out to the Department of National Defence on Tuesday morning asking for comment on the memo and about the military’s efforts to determine how the invocation of the Emergencies Act impacted them at the time.

“As an institution that must always be ready to serve Canadians and Canadian interests at home and abroad, the Canadian Armed Forces regularly and proactively considers potential implications, including legal implications, that significant events may have on the CAF,” said Daniel Le Bouthillier, spokesperson for the department.

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“Potential legal imperatives are routinely part of these considerations, as the CAF is committed to fulfilling its mandate in line with Canadian and international law.”

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Multiple military and law enforcement sources told Global News in February the government and RCMP asked about the possibility of military assistance, primarily the use of military vehicles capable of towing the encamped trucks, as well as the potential for using military-owned space to stow them.

The sources, who spoke on background because they were not authorized to speak publicly on security matters, said senior military officials were not keen to get involved given the military is not a police force.

Click to play video: 'Trucker protests: Police deemed Ottawa convoy national security threat week before Emergencies Act'
Trucker protests: Police deemed Ottawa convoy national security threat week before Emergencies Act

Military members in convoy likely to be 'institutional issue': official

Between Feb. 3 and Feb. 14, when Trudeau invoked the Emergencies Act, the situation on the streets of Ottawa and across the country continued to deteriorate and attempts at negotiating with convoy organizers failed to yield the “breakthrough” that officials had initially believed was possible.

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The City of Ottawa declared a state of emergency on Feb. 6 in response to what Mayor Jim Watson called the “serious danger and threat to the safety and security of residents posed by the ongoing demonstrations.”

Ontario Premier Doug Ford would go on to call the demonstration an “occupation” while then-Ottawa police chief Peter Sloly described the city as “under siege” on Feb. 5 and the chair of the city’s police services board described the situation as a “living hell” for residents.

Officials inside the Department of National Defence were also privately warning of the need for a strategy to deal with reports of Canadian Forces members who were supporting the demonstration.

“This likely will shift into an institutional issue rather than related to just CANSOF and we will need a unified strategic approach in how we deal with it,” an assistant deputy minister at the Department of National Defence wrote in an email to both Eyre and Matthews on Feb. 10, 2022.

That warning, included in the documents obtained by Global News, came in response to questions from journalists about participation in the convoy by members of Joint Task Force Two (JFT2), which is Canada’s elite special operations force.

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Three days later, the commander of Canadian Special Operations Forces Command (CANSOFCOM) confirmed at least two individuals from the unit were being investigated and the supervisors for a third, who had been recently reassigned to another unit, were being notified.

“If the allegations are accurate, this is wrong and it goes against Canadian Armed Forces values and ethics,” Maj.-Gen. Steve Boivin, commander of CANSOFCOM, told Global News in an emailed statement at the time.

“CANSOFCOM does not condone its members supporting and/or actively taking part in causes that jeopardize the apolitical imperative associated with their functions.”

Click to play video: 'Officers from across Canada assist Ottawa police to dismantle ‘Freedom Convoy’ blockades'
Officers from across Canada assist Ottawa police to dismantle ‘Freedom Convoy’ blockades

That same day, Eyre forwarded an email sent to him by John Ossowski, the president of the Canada Border Services Agency, to Maj.-Gen. Paul Prevost, director of the strategic joint staff.

The email from Ossowski contained “recent event specific instructions” sent out to front-line CBSA officers, and Eyre’s forwarding note to Prevost suggested it could “have some use.”

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Those instructions, dated Feb. 8, 2022, informed CBSA staff that they should “refrain from expressing personal opinions on the demonstrations while on duty.”

It also instructed border security officers to refer any foreign nationals entering Canada for the purposes of participating in protests to secondary screening “for confirmation of their eligibility to enter Canada.”

It went on to note that there was “no legal authority” to bar a foreign national looking to attend a “peaceful protest” from entering the country.

By Feb. 8, the convoy had been encamped in downtown Ottawa for 12 days.

Click to play video: 'Trucker protests: Demonstrators gather in Ottawa for 3rd weekend in a row'
Trucker protests: Demonstrators gather in Ottawa for 3rd weekend in a row

Also included in the cache of documents released to Global News is a letter drafted for Anand by officials with the Department of National Defence.

That letter raised concerns to Ottawa Major Jim Watson about how “easily” local police had let demonstrators remove protective fencing around the National War Memorial and urged him to increase the police presence around the Cenotaph.

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The site honours Canada’s war dead and is sacred for millions of Canadians.

The protective fencing in question had been set up after convoy demonstrators drank and danced on the Tomb of the Unknown Soldier.

“Even if the intent of the protestors was peaceful and they intended to honour the site, I’m concerned that the Ottawa Police Service allowed the protective fencing to be so easily removed in the first place,” stated the letter, attributed to Anand.

In it, the minister also expressed concern about “unacceptable behaviour” at the National Aboriginal Veterans Monument and the “apparent lack of meaningful security” at both sites.

“I ask that in light of the importance of both of these locations to Veterans, members of the armed forces, and to our collective national history, additional Ottawa Police Services resources be dedicated immediately to protecting these hallowed grounds.”

However, a government official confirmed on background to Global News that while Anand requested the letter be drafted, it was never sent to Watson because the invocation of the Emergencies Act quickly led to a resolution.

The massive police operation to clear out demonstrators brought together police from multiple jurisdictions across the country and resulted in almost 400 charges being laid against participants.

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The public inquiry into the use of the Emergencies Act is set to begin public hearings next month.

Those hearings will run from Sept. 19 until Oct. 28, with a final report expected early next year.

With a file from Global’s Mercedes Stephenson.

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