Highlights from the Report of the Public Inquiry into the 2022 Public Order Emergency

February 19, 2023

On February 17, 2023, Commissioner Paul Rouleau released the report of the Public Order Emergency Commission, established in April 2022 as a result of the Government of Canada’s decision to invoke the Emergencies Act in response to protests in Ottawa and elsewhere in Canada in January and February of 2022.

The Commission examined more than 85,000 documents, interviewed 139 individuals, received testimony from 76 witnesses, and heard from 50 experts.

In addition to its review and analysis, the report also contains the Commission’s 56 recommendations and 17 commissioned papers from academic experts. Several of the recommendations and papers are on topics and themes of interest to the Canadian library and information management community.

Recommendations

1. Policing

Recommendation 1: The federal government — in conjunction with provincial, Indigenous, and territorial governments; police and intelligence agencies; the Canadian Association of Police Chiefs; and other stakeholders — should develop or enhance protocols on information sharing, intelligence gathering, and distribution that:

a. identify how and by whom information and intelligence should be collected, analyzed, and distributed for major events, such as protests, that have multijurisdictional or national significance;

b. enhance the ability to collaboratively evaluate information collected for reliability;

c. adhere to the Canadian Charter of Rights and Freedoms and the reasonable expectations of privacy of those affected;

d. enhance record-keeping regarding the collection, analysis, and distribution of information and intelligence;

e. ensure compliance with legislative mandates, for example, statutory limits on surveillance of lawful protests by the Canadian Security Intelligence Service (CSIS);

f. promote appropriate access to and interpretation of social media and open-source materials;

g. ensure that — where appropriate — comprehensive, timely, and reliable intelligence be communicated to police and government, within their appropriate spheres of decision making; and

h. promote objective, evidence-based risk assessments that are written to both acknowledge information deficits and avoid misinterpretation.

• Discussion

Recommendation 22: Municipalities, police services boards, and police services should, when dealing with major events, provide the public with accurate, useful, and regularly updated information.

• Discussion

2. Federal intelligence collection and coordination

Recommendation 28: The federal government, while mindful of concerns related to privacy and government intrusiveness, should examine the question of whether a department or agency of government should have the authority and responsibility to monitor and report on information contained in social media for appropriate purposes and with appropriate safeguards.

• Discussion

Recommendation 29: The federal government should initiate a review to ensure that the federal government agencies with a responsibility for the collection or analysis of security intelligence are fully coordinated among themselves. The overall goals to be achieved are to minimize duplication, and to promote integration and effective and timely sharing at the federal level and among stakeholders at other levels of government.

• Discussion

4. The Emergencies Act

Recommendation 40: The Emergencies Act should be amended to require that, at the time a commission of inquiry into the declaration of a public order emergency is established, the Government deliver to the commission a comprehensive statement setting out the factual and legal basis for the declaration and measures adopted, including the view of the Minister of Justice of Canada as to whether the decision to proclaim an emergency was consistent with the purposes and provisions of the Emergencies Act, and whether the measures taken under the Act were necessary and consistent with the Charter.

• Discussion

Recommendation 41: Amendments should be made to the Emergencies Act to impose upon the Government the obligation to create and maintain a thorough written record of the process leading to a decision to declare a public order emergency. That obligation should apply to both elected officials (and their exempt staff) and public servants.

• Discussion

Recommendation 42: The Government should commence the work of collecting and organizing its documents and information as soon as the decision to declare a public order emergency is made. Such records should be produced to the commission at the outset of its work or as soon thereafter as is feasible.

• Discussion

Recommendation 43: A Government that has declared a public order emergency should be bound to produce to the resulting commission of inquiry all of the inputs to Cabinet and to ministers on the issue. “Inputs to Cabinet” should be understood as encompassing all information, advice, and recommendations provided to Cabinet, Cabinet Committees, or individual ministers.

• Discussion

Recommendation 44: The government should have the obligation to provide a commission of inquiry with all of its documents and information holdings without redactions on account of irrelevance, or on account of national security confidentiality and similar public interest privileges.

• Discussion

Recommendation 47: Where it can reasonably be anticipated that claims will be made by the government pursuant to section 38 of the Canada Evidence Act, a request should be made to the chief justice of the Federal Court to appoint a judge to determine all challenges to such claims on an expedited basis.

• Discussion

Recommendation 48: The Emergencies Act should be amended to give the commission the power to order a person to produce any information, document, or thing under the person’s power or control.

• Discussion

5. Other areas for further study

Recommendation 53: All levels of government should continue to study the impact of social media, including misinformation and disinformation, on Canadian society, with a focus on preserving freedom of expression and the benefits of new technologies, while addressing the serious challenges that misinformation, disinformation, and other online harms present to individuals and Canadian society. Governments should coordinate their work in this area to ensure that any jurisdictional issues may be addressed.

• Discussion

Policy Papers

Freedom of Expression

Richard Moon
Professor, University of Windsor

Full paper

Summary
This paper examines the Canadian courts’ approach to the justification, scope, and limits of freedom of expression. The paper also discusses a number of the freedom of expression issues raised by the convoy protests, such as the right to access government owned property in order to communicate with others, the regulation of hate speech, the restriction of insults and harassment in public spaces, the right to protest, the right to erect fixed structures as part of a protest, the protection of captive audiences from unwanted speech, and the spread of disinformation and conspiracy theories.

Mis- Dis- and Mal-Information and the Convoy: An Examination of the Roles and Responsibilities of Social Media

Emily B. Laidlaw
Associate Professor, University of Calgary

Full paper

Summary
This paper supports the Public Order Emergency Commission in the examination of “the impact, role and sources of misinformation and disinformation, including the use of social media”. The term social media is used broadly in this paper to refer to applications that are designed to enable third parties to interact, create and share content, including messaging, video, audio, and images.

This paper does not make factual findings as to online information manipulation and the Convoy. Rather, the purpose of this paper is to deepen understanding of the information environment of mis-, dis- and mal-information, how it is regulated and how this intersects with the Convoy. Social media was the central nervous system of the Convoy, and exploration of its role crosses numerous domains, such as law, psychology, history, sociology, and public policy, to name a few. Even within law, the applicable laws (and significant gaps in law) are too numerous to explore in detail. To the extent that I can provide more detail for interested readers, I do so in the footnotes, and I also encourage readers to peruse the many resources cited in this paper.

The paper is structured as follows. Part I examines the various social media used in the Convoy, the meaning of mis-, dis- and mal-information, how it spreads, the psychology and impact. Parts II and III examine how information manipulation on social media is regulated. There are two angles to regulation that are relevant. First, what laws regulate users and other entities that consume or spread mis-, dis- or malinformation? This is the question of whether an individual, for example, commits a crime or can be civilly liable for spreading false information. A necessary part of this analysis is the right to freedom of expression: its value, application, and limits. This aspect of regulation is examined in Part II. Second, what are social media providers legal and governance responsibilities to address mis-, dis- and mal-information? This is examined in Part III and entails analysis of the laws that regulate social media companies and how they self-regulate through content moderation.

(Via Public Order Emergency Commission)