The Government responds to the Rouleau Commission report

Or, What you see is what you get.

Its time to remind ourselves of the events of the Freedom Convoy protests in January and February 2022, the invocation by the Government of the Emergencies Act, and the work and findings of the inquiry established under the Act to explore the circumstances of the Act’s invocation and use of its exceptional powers by the federal government.

The prompt to scroll back to this drama has been provided by the release of an interim response  by the Government to the recommendations of the Public Order Emergency Commission (POEC). POEC, headed by Justice Paul Rouleau, after a Fall 2022 season of often dramatic public hearings, hit its challenging one-year deadline, issuing a report in February 2023. The report came in five volumes and advanced a grand total of 56 recommendations.

I wrote a ton of substack columns on the Rouleau commission hearings—indeed it was the Rouleau Commission and the remarkable outpouring of testimony and documents that got me started in writing this newsletter.

 I found the Commission’s final report and the recommendations it contained, deeply unsatisfactory. Not because the recommendations were all wrong-headed, far from it. But because there was a huge hole in the centre of the report. The hole (black, sucking up any light), involved intelligence issues.

You are free to say, who cares about intelligence, give me recommendations on policing reforms (nearly 50% of all Justice Rouleau’s package, or 27 out of 56).  Give me reforms of the Emergencies Act, a skeleton in the judicial closet (22 out of 56 or 39% of the total). Fair enough, these are important issues. Yet they completely dominate (49 out of 56 recommendations in total) in ways that deserve critical scrutiny. The mandate of the Commission was never meant to be restricted to policing and scrutiny of the EA.

Recommendations on the Emergencies Act, to be sure, were squarely within the Commission’s terms of reference and plenty of problems emerged with the Act’s interpretation and use. The focus on recommendations on policing might be another matter, not least because policing of public order protests largely falls to other jurisdictions—provincial and municipal. In other words, they are not principally the problem of the federal government and not principally for the feds to solve. Hello, Ottawa Police service.

There was no explicit mention of intelligence issues in the Rouleau Commission terms of reference, provided to it in an Order in Council from the government. I have to assume this lacuna was intentional. It wasn’t where there government wanted the Inquiry to go. This does not excuse the failure of the Commission to pay proper attention and offer some challenge.

As we came to learn during the Rouleau commission hearings, intelligence was at the core of the Government’s ability to assess the intentions, capabilities and actions of the Freedom Convoy protests, and frame appropriate responses. How well that intelligence task was fulfilled and acted on was something that the Commission’s report shied away from. You won’t hear the phrase “intelligence failure” breathed anywhere in the Rouleau Commission report. Recommendations regarding intelligence constitute a mere 4 of the Commission’s 56 recommendations, or 7 per cent of the total.

Something is deeply out of whack here.

In sheer attention space alone, this was a huge missed opportunity from an inquiry in which Justice Rouleau promised, at the very outset, to focus squarely on the actions of the federal government.

The four intelligence-directed recommendations themselves are unlikely to advance a capacity to deal with major public order emergencies in future.

Let’s remind ourselves of them, before turning to the Government’s just-released interim response.

You can find a consolidated list of the Rouleau Commission recommendations in Volume One of its report at pages 251-266:

https://publicorderemergencycommission.ca/final-report/

The first recommendation (which led off the set of policing recommendations) enjoined everybody and their dog (literally) to “develop or enhance protocols on information sharing, intelligence gathering and distribution…” The justice reminded all and sundry to be sure to adhere to the Charter and keep an eye on legislative mandates when engaged in intelligence activities. Other encouragements included to do more (using “appropriate access”) with social media and open-source intelligence. Perhaps my favourite from this bundle of well-meaning but vacuous bromides asked for the promotion of objective, evidence-based risk assessments that are written to both acknowledge information deficits and avoid misinterpretation. Intelligence 101, baby.

The second recommendation dipped a toe into governance changes, asking that consideration be given to the creation of a “single national intelligence coordinator for major events of a national or interprovincial or interterritorial dimension.”  As this was a policing recommendation I guess Justice Rouleau was thinking of a police official (from the RCMP???), but in reality we already have such a function in the office of the National Security and Intelligence Adviser. Argue to beef up her office if you like, but don’t ignore it.

From recommendation #2 under “policing,” we skip ahead to a skimpy section devoted to recommendations on “Federal intelligence collection and coordination.”  The section contains just two recommendations, a stark indication that the Commission, at the end of the day, just didn’t get it.

Recommendation # 28 asks the government to think about creating a unit (somewhere) to utilise social media intelligence. It wags a finger about concerns over privacy and government intrusiveness and the need to ensure there are proper authorities and safeguards in place.  Understood, but as an argument for a new departure in governance and intelligence collection, not much zing here.  Over to you, government.

The final recommendation of a scanty four, almost had me hopeful. Recommendation #29 talks about an intelligence review. But wait, it is scoped way down to be a review of “coordination.” Not a review of the intelligence cycle more broadly-collection, analysis, dissemination, and policy action. A review of coordination sounds like a nice bureaucratic game, but it won’t do a lot to improve the overall working of the Canadian intelligence system. It leaves too much untouched.

Not much challenge in any of these intelligence recommendations for the Government.  More’s the pity.

But let’s see how the Government (in the guise of Minister LeBlanc, newly minted as Public Safety Minister but previously put in charge of the government’s response to Rouleau) reacted in its interim report released on September 1 (the full and final report will not appear until February 2024).

The response is labelled a “six month progress report” and constructed as a letter to the Prime Minister.

https://www.canada.ca/en/intergovernmental-affairs/services/six-month-progress-report-public-order-emergency-commissions-report-public-inquiry-2022-public-order-emergency.html

In referencing the Rouleau commission recommendations on social media intelligence usage and on coordination, the LeBlanc progress reports tells us simply that the Privy Council Office is taking “multiple steps to address the Commission’s intelligence recommendations.”  It references the work of the National Security and Intelligence Adviser in “revitalizing” the governance of the intelligence community and the announced creation of a National Security Council.  In reality, neither of these initiatives were prompted by the Rouleau Commission report--both were driven by the very public controversy over the government’s handling of Chinese state election interference attempts.  There is no mention  of any kind of “review” and no engagement with the idea of creating a specialised unit within government to exploit social media intelligence.

There is nothing specifically in Minister LeBlanc’s letter that addresses how intelligence sharing, gathering and distribution for policing purposes will be improved.  We are merely told that the RCMP is on it (“considering ways of improving…”), with a digression about ongoing studies of the federal policing mandate and a sidebar note that the National Security and Intelligence Committee of Parliamentarians report on RCMP federal policing and national security, long delayed, is finally coming down the pike. The recommendation of a “single national intelligence coordinator for major events…” is simply brushed aside—can’t say I blame the government on that one.

So much for the four intelligence recommendations. No challenge; no real and substantive response.

As the LeBlanc progress report indicates, many of the Commission’s recommendations fall in whole or in part under the jurisdiction of other orders of government.  The federal government promises to lead discussions on shared jurisdiction issues around policing, public safety, justice and transport. Great and good luck. Minister LeBlanc has written to the Solicitor General of Ontario wondering about the province’s response to the Commission’s recommendations. Great, even bigger dollops of good luck.

As we await the Government’s final response to the Rouleau Commission’s report, due in February 2024, all the signs are that the sole legacy of the Commission’s work will be some (as yet unknown) changes to the Emergencies Act. If this is the case, the Rouleau Commission may stand as one of the least productive judicial inquiries in modern Canadian history. Its narrative of the events of the Freedom Convoy is a useful starting point for histories still to come, not the final word. Many of its recommendations are likely headed for the Orwellian memory hole. It missed a terrific opportunity to really bring to light problems with the intelligence system and its work in a domestic national security crisis.  Leaks of classified documents and media reporting on Chinese election interference stole its thunderless thunder.

So much effort, for so little.