Head of OPP says Emergencies Act needed to compensate tow trucks, but not to compel their services

A protester carrying an empty fuel container on a broom handle walks past Ontario Provincial Police officers on Metcalfe Street in Ottawa on Feb. 7, 2022, during the demonstrations against COVID-19 rules. (Justin Tang/The Canadian Press - image credit)
A protester carrying an empty fuel container on a broom handle walks past Ontario Provincial Police officers on Metcalfe Street in Ottawa on Feb. 7, 2022, during the demonstrations against COVID-19 rules. (Justin Tang/The Canadian Press - image credit)

The head of the Ontario Provincial Police said Thursday the Emergencies Act was needed to indemnify the towing companies that helped to clear the convoy protest in Ottawa in February — but Commissioner Thomas Carrique does not believe the controversial federal powers were needed to compel the heavy vehicles into service.

"Many of them wanted indemnification, which was not something that we could provide them with without making additional arrangements … so when the Emergencies Act was invoked, that ability to provide that indemnification was extremely helpful," OPP Commissioner Thomas Carrique told the Public Order Emergency Commission inquiry.

"Technically, could we have compelled them? Did we provide them with information in writing that would insinuate they were compelled? Quite likely. But did we actually have to direct them? No, they had willingly agreed to assist."

The matter of compelling tow trucks has become one of the linchpin issues facing the commission inquiry, which is investigating whether the federal government's use of the Emergencies Act was justified.

Carrique sat down with the commission lawyers twice this summer ahead of his testimony. Summaries of those interviews were entered into evidence Thursday.

In August, he took the view police did not use the Emergencies Act to compel towing companies to provide their services.

"The ability to compel tow truck drivers to provide service and to indemnify them was delegated by the RCMP Commissioner to [Commissioner] Carrique, but it was not used to compel them to provide service," said a summary of those interviews.

WATCH | 'Some were reluctant': OPP commissioner on tow trucks

On Thursday, a commission lawyer asked if it would be fair to say trucks "were indemnified under the Emergencies Act, but they were not actually compelled under the Emergencies Act."

"That's how I would describe it," said Carrique.

One of the problems facing police during the occupation was moving the trucks and other vehicles that had entrenched themselves on Ottawa streets for weeks. At the time, towing companies expressed a fear that they would be targeted by protest supporters. At least one Ottawa tow truck operator reported receiving hundreds of calls — including death threats.

Federal government says deal to secure tow trucks fell through

An Ottawa Police Service superintendent who helped oversee operational planning in the final days of the demonstration told the inquiry on Wednesday that officers did not need to rely on powers granted under the federal act to secure tow trucks.

Supt. Robert Bernier, who took over as the OPS event commander on Feb. 10, was organizing a police operation with the OPP and the RCMP.

He told the commission that the OPP had been able to secure 34 tow trucks with willing drivers by roughly Feb. 13 — before the act was invoked — as part of their plan to end the protest.

But a lawyer for the federal government pushed back on that assertion.

During cross-examination Wednesday, Donnaree Nygard, a lawyer for the federal government, asked Bernier if he was aware that the commitment for the 34 trucks fell through.

"I was not informed of that," said Bernier.

WATCH | OPP Supt. Robert Bernier discusses efforts to get tow trucks to clear out truck convoy:

Nygard entered into the record a Feb. 17 letter that showed Carrique cited the Emergencies Act in his communications with towing companies. The letter said the OPP was "requiring" towing companies to make their services available under the Emergencies Act.

"This is new to me," Bernier said Wednesday.

A Feb. 13 email forwarded to Carrique, and shown to the commission Thursday, said seven companies with 34 heavy towing services were willing to provide services, while 57 companies with 269 heavy tow trucks either said no or did not respond to the OPP.

The email said the OPP was beginning to look to companies from the U.S. and Quebec for help.

"There was a lot of challenges with identifying the number of tow trucks that were available, those that would willingly provide those services, those that were looking to be compelled or indemnified," Carrique testified.

"There were concerns that they may back out at the last minute, which presented a risk to moving forward with the plan."

Carrique called the indemnification issue "critical."

Justin Tang/Canadian Press
Justin Tang/Canadian Press

In a Feb. 22 letter — written after police had moved to clear Ottawa's streets — Carrique told Ontario Deputy Solicitor General Mario Di Tommaso that the towing industry was "highly reluctant" to assist police and that they were seeking "an unusually broad and high risk indemnification from the province for loss and damage."

That request included indemnification for future retaliation. Carrique said that would require the finance minister's approval and would take time.

The letter also said securing tow truck companies' services would have required separate agreements. Again, Carrique wrote that there was not enough time to do so before the planned police operation.

Carrique was shown the letter again on Thursday during cross-examination.

"You said it's a bit of a semantic issue but, in fact sir, the OPP did require towing companies to provide the services under the auspices of the [Emergencies Act], correct?" asked Brendan van Niejenhuis, another federal government lawyer.

"Yes, we had provided that written direction and had they failed to provide those services we would have been able to compel them to do so. Absolutely," responded Carrique.

OPP thought trucks would be blocked from precinct

The tow truck question is not the only point of contention the inquiry has unearthed so far.

In March, Carrique told the House of Commons parliamentary committee that officers in his intelligence unit had identified the Ottawa protest as a "threat to national security" about a week after heavy trucks arrived in the capital.

But the head of the intelligence unit, Supt. Pat Morris, told the public inquiry last week there was never any "credible" information showing a direct threat to national security.

"Everybody was asking about extremism. We weren't seeing much evidence of it," Morris said.

On Thursday, Carrique said the "situation was identified as a threat to national security."

But Carrique said during his testimony that he agrees there were no credible national security threats. He said the word "threat" was used to indicate that something could happen, and that the situation called for further analysis.

Canada's spy agency, CSIS, raised concerns about the OPP's suggestion there was a national security threat, but Carrique said any police leader ought to look at potential threats extremely seriously.

He said the OPP's intelligence reports about the protests, called Project Hendon, flagged that there was no exit strategy for the protest organizers. He said that was passed to the Ottawa police.

The reports said convoy organizers and participants would be "unlikely to have the ability to control, influence or discipline" the "fringe elements" that it expected could pose the biggest threat to public safety.

The reports also noted on several occasions that while the OPP had "identified no concrete, specific, or credible threat with regard to the Freedom Convoy protest" or related events, "a lone actor or group of individuals could enact a threat with little or no warning."

According to his witness summary, Carrique thought the OPS's operational plan would bar the trucks from the parliamentary precinct and would instead use buses and shuttles to allow protesters to access the downtown area for the protests.

He said he quickly realized that was not the case.

"OPS did not appear to have a clearly communicated and documented operational plan in place, and was not working towards an injunction," said his witness summary.

He said he didn't think the decision by then-Ottawa police chief Peter Sloly to make public his request for 1,800 more officers was helpful.

"It exposed to the protesters that the OPS was overwhelmed and needed assistance," Carrique told the commission.