When a minister goes too far
Mendicino’s Emergencies reconstruction
Marco Mendicino came across as one of those assured characters who fluffs his putts under pressure.
The public safety minister was testifying before the Public Order Emergency Commission about the events leading up to the invocation of the Emergencies Act last February.
As a former federal prosecutor, M3 (as he appears in many internal documents for his initials: Minister Marco Mendicino) was loquacious about his role in granting the Liberal government the power to rule through executive order — reinforcing the impression that he was a key voice around the cabinet table at the time.
Commission counsel Shantona Chaudhury showed Mendicino a ministerial briefing from Jan. 25, three days before the convoy arrived in Ottawa. It suggested that a “peaceful event” was planned, aimed at disrupting traffic flows and government operations, before leaving the city after a few days.
Mendicino said from the outset he believed truckers who had driven across the country had the intention of staying longer. “The potential for violence was stated at the outset, when a number of individuals said it could end in bullets. It was a signal of intent,” he said.
Maybe it was the flaws in the early intelligence he received that persuaded him to discount future advice, but there is no evidence that he paid heed to the intelligence he received from the Canadian Security Intelligence Service, or from the RCMP, which there was no serious threat to Canada from a badly organized protest that offered no tangible plots of violence or had any ideologically motivated violent extremist groups in attendance.
At one point, commission counsel asked what prompted his concerns that the protest could spiral and overwhelm police services across the country. “It came from observation,” he said, a classic example of marshalling evidence to confirm predetermined convictions and dismissing evidence that contradicts them.
Mendicino’s frustration was apparent in an email from his chief of staff, Mike Jones, to the prime minister’s deputy chief of staff, Brian Clow, in the first week of the protest. “My boss is pretty amped up. He’s concerned that the OPS (Ottawa Police Service) has lost jurisdiction, as there’s no control at all on what’s happening on Wellington (Street, running between Parliament Hill and the Prime Minister’s Office).”
At the same time, attempts to bring the Ontario government to the table to discuss a response were failing. Jones recounted to other Hill staffers that a call between the minister and Ontario’s then-solicitor general, Sylvia Jones, had been “pretty frosty.” Mendicino had said Ottawa needed the province to respond with its plan, to which (Sylvia) Jones is said to have replied: “I don’t take orders from you, you’re not my f---ing boss.”
The minister told commission counsel that he was concerned about law enforcement around all critical infrastructure, including Parliament. “It’s a federal democratic institution, but we didn’t have total jurisdiction over that space,” he said, pointing out that the federal government had to navigate different levels of government to enforce the law, including the prospective removal of a crane adjacent to the Prime Minister’s Office.
By Feb. 13, more than two weeks after the Freedom Convoy had rolled into Ottawa, the cabinet met to have a final discussion on the invocation of the Emergencies Act.
Prior to that meeting, RCMP Commissioner Brenda Lucki sent Mendicino an email that said she was of the view that law enforcement had not exhausted all the tools available to it under existing legislation.
The minister said he could not remember reading the email and said he was far more influenced by a conversation he had with Lucki earlier that day, in which she expressed grave concerns about the situation in Coutts, Alta., where the RCMP were about to execute a search warrant on a small group who had access to a cache of firearms. “It underlined to me that there was a hardened cell of individuals, armed to the teeth with lethal firearms, who possessed a willingness to go down with the cause,” he said.
Lucki told him that undercover RCMP officers were deployed in the field. “Lives literally hung in the balance ... We were potentially seeing an escalation of serious violence … It was a threshold moment for me,” he said.
For Mendicino, the threshold that justified invocation of the Emergencies Act had been reached. Existing legislation had not been used effectively by law enforcement. There had been reports of firearms in Ottawa by the OPS and the minister worried that what seemed to be happening in Coutts was spreading elsewhere. “I was worried about a potential chain reaction,” he said.
With hindsight, we know that was not the case. Mendicino can be excused for overreacting, given what he’d heard from Lucki.
But overreact he did, and, as a lawyer, his reaction must have carried considerable weight when cabinet decided to invoke the Emergencies Act.
Ever since, the government has been obliged to rationalize a decision that brought in a law that can only be enacted if there is a threat to Canada’s sovereignty — something that the country’s spy agency ruled out.
Mendicino’s justification was specious — that CSIS’S mandate is confined to espionage and foreign interference threats, not an illegal, national protest.
He said the broader scope of the protest means looking at the section of the act that says a national emergency is a situation that seriously endangers the lives, health or safety of Canadians and is of such proportions that it exceeds the capacity or authority of a province to deal with it.
But that does not invalidate the statement later in the act that says threats to the security of Canada are defined in section 2 of the Canadian Security Intelligence Service Act.
That section states that such a menace requires the threat or use of acts of serious violence against persons or property for the purpose of achieving political, religious or ideological objectives — something that we just did not see.
Mendicino can be forgiven for grasping at shadows in the fog of the Freedom Convoy crisis but not for trying to excuse a government that broke its own law because it was convenient to do so.