Emergencies Act inquiry commissioner rejects convoy lawyer's pitch to call witnesses on Nazi flag at protest

Commissioner Paul Rouleau speaks with Freedom Corp. counsel Brendan Miller before asking security to remove the lawyer from the Public Order Emergency Commission hearing in Ottawa on Nov. 22, 2022. (Adrian Wyld/The Canadian Press - image credit)
Commissioner Paul Rouleau speaks with Freedom Corp. counsel Brendan Miller before asking security to remove the lawyer from the Public Order Emergency Commission hearing in Ottawa on Nov. 22, 2022. (Adrian Wyld/The Canadian Press - image credit)

The commissioner leading the Emergencies Act inquiry has dismissed an application from the lawyer representing some organizers of the self-styled Freedom Convoy to compel witnesses to testify about who brought Nazi and Confederate flags to the protests.

The Public Order Emergency Commission (POEC) released the decision Wednesday. In it, Commissioner Paul Rouleau said Freedom Corp. lawyer Brendan Miller had raised "serious allegations ... with little foundation in evidence."

Miller sought to have four additional witnesses testify at the commission hearings, including Brian Fox, a partner at the political consulting firm Enterprise Canada.

Miller alleged at the commission Monday — without citing evidence — that Fox had brought a Nazi flag to the convoy protests in Ottawa earlier this year to discredit the protesters.

Miller also alleged — again without evidence — that Fox carried the flag at the direction of government officials.

"In essence, Freedom Corp. alleges that, before the convoy arrived in Ottawa, certain members of the 'political executive' and their staff decided to paint the protesters as racists and extremists," Rouleau said in the decision.

"Freedom Corp. continues that, once the protests in Ottawa began, the political executive and their staff furthered this labelling by pointing to photographs of Nazi and Confederate flags that had been circulating online."

Miller also applied to call others before the commission to testify: David Chan, a freelance photographer who took pictures at the protest, Shawn Folkes — a man who says he spoke with Fox at the protest — and representatives of Enterprise Canada.

In his decision dismissing the application, Rouleau said Miller did not have sufficient evidence for his allegations.

"Given the seriousness of the allegations, the commission would likely have to receive evidence from Enterprise Canada and those individuals targeted by Freedom Corp.'s allegations," Rouleau said in the decision.

"This would constitute a very significant distraction from the commission's core mandate. In light of the absence of any other factual support, it is not a prudent use of the commission's remaining time to pursue Freedom Corp.'s theory."

The commission is tasked with examining the government's decision to invoke the federal Emergencies Act. The government invoked the act to bring anti-vaccine mandate protests to an end — including a massive protest which occupied downtown Ottawa for weeks last winter.

Blair Gable/Reuters
Blair Gable/Reuters

"As troublesome as Freedom Corp.'s allegations might be, even if they had been supported by compelling evidence the fact is that they would have little, if any, relevance to the key issues that the Commission must determine," Rouleau said.

Miller also wanted the Ottawa Police Service and the Ontario Provincial Police to provide evidence to the inquiry about a truck that was seen displaying the Confederate flag at the protest. Rouleau also dismissed that application.

"The basis for seeking this information is purely speculative ... Having carefully reviewed the  information provided by Freedom Corp., I conclude that this is, in essence, a fishing expedition," Rouleau said in his decision.

Jason Lietaer, president of Enterprise Canada, told CBC's Power & Politics Tuesday that Fox was in Toronto at the time of the protest and that Fox had been receiving death threats since Miller made his allegation.

This is the last week the commission will hear from witnesses. The commission is expected to deliver a final report to Parliament by February 20, 2023.