Canada's intelligence agency didn't believe the self-styled Freedom Convoy constituted a threat to national security according to the definition in its enabling law, says a document previewed as part of the Emergencies Act inquiry Monday.
The intelligence assessment comes as the Public Order Emergency Commission assesses whether the federal government met the legal threshold to invoke the Emergencies Act to clear Ottawa of protesters last winter.
Like all witnesses appearing before the commission David Vigneault, the director of the Canadian Security Intelligence Service (CSIS), sat for an interview with the inquiry's lawyers over the summer.
A summary of that conversation was shared with journalists Monday.
"Mr. Vigneault stated that at no point did the service assess that the protests in Ottawa or elsewhere [those referred to as the "Freedom Convoy" and related protests and blockades in January-February 2022] constituted a threat to security of Canada as defined by section 2 of the CSIS Act and that CSIS cannot investigate actively constituting lawful protest," reads the document.
The CSIS Act defines "threats to the security of Canada" as:
Espionage or sabotage that is against Canada or is detrimental to the interests of Canada, or activities directed toward or in support of such espionage or sabotage.
Foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive, or involve a threat to any person.
Activities within or relating to Canada 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 within Canada or a foreign state.
Activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.
In order to declare a public order emergency, the Emergencies Act requires that there be "an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency" and defers to CSIS's definition of "threats to the security of Canada."
Vigneault told the commission lawyers he learned the Emergencies Act cited the CSIS Act once the government began to seriously consider invoking the legislation around Feb. 10-13.
"He requested that the service prepare a threat assessment on the risks associated with the invocation of the Emergencies Act," said Vigneault's interview summary.
"He felt an obligation to clearly convey the service's position that there did not exist a threat to the security of Canada as defined by the service's legal mandate."
That assessment showed CSIS felt that invoking the Emergencies Act would "galvanize" members of the self-styled Freedom Convoy and radicalize some toward engaging in violence.
In his interview with commission lawyers, Vigneault also said that the threshold imposed by the CSIS Act is very specific.
"For example, the determination that something may not constitute a threat to national security under section 2 of the act does not preclude a determination that a national security threat under a broader definition, or from the perspective of the public, does exist," says the summary of Vigneault's interview.
DM says cabinet felt threshold was met
Vigneault and another CSIS official, deputy director of operations Michelle Tessier, told the commission in that summer interview that "the service had subjects of investigation who showed interest or participated in the convoy."
Under cross examination by lawyer Brendan Miller — who represents convoy protest organizers, including Tamara Lich and Chris Barber — former deputy minister of Public Safety Rob Stewart said the government would have a more broad interpretation of what constitutes a national security threat.
"The cabinet is making that decision and their interpretation of the law is what governs here and the advice they get," said Stewart, who has since moved to another government department.
"And their decision was, evidently, the threshold was met."
Prime Minister Justin Trudeau invoked the act on Feb. 14, arguing its temporary powers were needed to end blockades in Ottawa and at border crossings.
The day after the act was triggered, Public Safety Minister Marco Mendicino defended his government's decision on national security grounds, saying that several of the individuals involved in the blockade at the border crossing in Coutts, Alta. had "strong ties to a far-right extreme organization with leaders who are in Ottawa."
"You have the RCMP, you have CSIS, you have the entire intelligence apparatus in the federal government and none of them said that this threshold was met, did they?" Miller asked Stewart.
"They weren't asked," Stewart said.
Vigneault told the commission that one of the main challenges with CSIS's mandate to pursue ideologically motivated violent extremism (IMVE) is distinguishing between credible threats of violence that are ideologically motivated and online rhetoric that is violent or may constitute hate speech.
IMVE is a broad term used by CSIS to cover extremism based on various grievances, including those expressed by far-right, anti-government and racist groups.
In the summary document, Vigneault described IMVE as a funnel — the largest part of it covers acts and language which are "awful but lawful," while online and real-world activities that meet the CSIS Act threshold are found at the narrowest part of the funnel.
Tessier added that CSIS is not investigating the movement opposed to pandemic public health measures because it would only qualify as a form of IMVE if it promoted serious violence.
CSIS didn't look at GiveSendGo leak
CSIS also concluded there was no indication of foreign state interference in the convoy protests.
"CSIS did not assess that any foreign states supported the protests through funding; that foreign states deployed covert or overt disinformation techniques; or that any foreign state actors attempted to enter into Canada to support the protests," said the summary of the inquiry's interviews with Vigneault and Tessier.
That determination didn't take into account the list of donors that became public as a result of a leak of the GiveSendGo database, Vigneault told the commission lawyers.
In February, hackers took down the GiveSendGo website and released a spreadsheet containing names, emails and dollar amounts related to nearly 93,000 individuals who purportedly donated money to support the protest.
Vigneault told commission lawyers CSIS's position was that the GiveSendGo donor list did not constitute publicly available information, given that it was the result of a data breach, and would have required judicial authorization for its use and retention.
Tessier said the service decided not to apply to the court to access the data for several reasons — including the data's intelligence value, its analysis by other agencies and the time required to file an application for a section judicial authorization, which would render the data far less useful.
According to information provided by GiveSendGo to the commission, more than half of donations to its "Freedom Convoy" campaign — 59 per cent — were from the United States, and about 35 per cent were from Canada.
More than 6,300 donations, making up more than half a million dollars, came from other countries.
Vigneault and Tessier are expected to testify in person next week.
Intelligence sharing problems plagued early days of protest: officials
Earlier this morning, the commission heard of problems with how information and intelligence was gathered and shared leading up to the protest's first weekend.
"Intelligence is not an exact science. It's not foolproof. Just because you have a piece of intelligence doesn't mean you have the full picture," Dominic Rochon, former senior assistant deputy minister of the Department of Public Safety's national security and cyber security, told the Public Order Emergency Commission.
"It becomes a very difficult mosaic to try and pull together in terms of pulling together intelligence emanating from [the Canadian Security Intelligence Service], emanating from police forces, emanating from Canada Border Services Agency."
Rochon said that before the convoy arrived in Ottawa, the federal department had not received any intelligence from CSIS or the RCMP warning it of the need to prepare for a significant event.
Protesters against COVID-19 restrictions used big rigs and other vehicles to block access to parts of Ottawa's downtown for nearly three weeks.
Both Rochon and Stewart sat with the commission for an interview in September. A summary of their conversation was made public Monday.
"As DM Stewart said, it is clear that they did not foresee that the convoy would be as big as it was and stay in Ottawa for as long as it did. In his view, there was an issue with information and intelligence gathering and sharing about the events," said the document.
"The CBSA [Canada Border Services Agency] and police of jurisdiction at ports of entry did not foresee that vehicles would arrive and park on highways, ramps and bridges, and the OPS [Ottawa Police Service] did not foresee that trucks would park in downtown Ottawa for as long as they did."
Stewart told the commission's lawyers that law enforcement agencies — especially the RCMP — would have been "extremely reticent" to share specific intelligence about the convoy with people at the political level, according to his interview.
"The convoy highlighted that there are issues with the flow of information from law enforcement to the government," said the summary document.
"For example, when the threats arise from ideologically motivated violent extremism (IMVE) rhetoric online, Public Safety and its agencies feel very under-equipped and under-prepared to gather and share intelligence about those threats and respond to them."
'The situation was proliferating'
Stewart told the commission's lawyers that invoking the Emergencies Act became a real option around Feb. 11, before the blockades at border crossings in Windsor, Ont. and Coutts, Alta. were cleared.
"The situation was proliferating and made even worse by the trade implications, the reputational impacts on Canada, and the IMVE [ideologically motivated violent extremism] implications," said his interview summary.
WATCH | DM questions Ontario's response to Ottawa protests in testimony
"There were also concerns that some of the individuals taking part in the convoy were trained security professionals and some were ex-military. It appeared as though local law enforcement could not resolve it and they were unable to enforce municipal or provincial authorities."
Commission hearing from federal officials in final 2 weeks
Later in the week, the commission will hear from RCMP Commissioner Brenda Lucki and other Mounties.
Some of Lucki's texts with her Ontario Provincial Police counterpart have been presented to the commission already.
In those texts, she wrote that the federal government was already losing confidence in the Ottawa police just one week into the protests.
"Between you and I only, (Government of Canada) is losing (or) lost confidence in OPS, we gotta get to safe action (or) enforcement," Lucki texted OPP Commissioner Thomas Carrique.
"'Cause if they go the Emergency Measures Act, you or (I) may be brought into lead, not something I want."
Deputy Commissioner Curtis Zablocki (the top Mountie in Alberta), the RCMP's head of federal policing Michael Duheme and former head of the Canada Border Services Agency John Ossowski are also on the witness list.
In its penultimate week, the commission will also hear from Jody Thomas, Prime Minister Justin Trudeau's national security intelligence adviser, who has publicly defended the decision to use the act.
She told a March 10 security and defence conference that protesters were "dug in" and "there's no doubt [they] came to overthrow the government."
Witnesses rounding out the week include:
Michael Keenan, deputy minister at Transport Canada.
Christian Dea, chief economist at Transport Canada.
Michael Sabia, deputy minister at the Department of Finance Canada.
Rhys Mendes, assistant deputy minister at the Department of Finance Canada.
Isabelle Jacques, assistant deputy minister at the Department of Finance Canada.
Jacquie Bogden, deputy secretary to the cabinet on emergency preparedness and COVID recovery.
Janice Charette, clerk of the Privy Council.
Nathalie Drouin, deputy clerk of the Privy Council
The commission finishes hearing from witnesses on Nov. 25.
Public Safety Minister Marco Mendicino, Emergency Preparedness Minister Bill Blair and Prime Minister Trudeau will all testify in the final week.