Canada Emergencies Act commissioner rejects 'provocateur' theory by Freedom Convoy lawyer
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OTTAWA — The central question of the Public Order Emergency Commission is “why?” Why, for the first time since the Emergencies Act was created nearly four decades ago, did Prime Minister Justin Trudeau’s cabinet invoke it from Feb. 14–23, 2022 in response to the Freedom Convoy protest — and was the historic decision justified? The inquiry itself is triggered automatically by language in the act that requires a government to explain its decision to use the extraordinary powers, with an inquiry and a report tabled within 360 days of the act expiring or being revoked.
OTTAWA – “A fishing expedition,” “little foundation in evidence,” “purely speculative” and a “very significant distraction.”
Those are some of the words used by Emergency Act inquiry commissioner Paul Rouleau in a ruling that sternly dismissed a series of requests by a lawyer for Freedom Convoy organizers relating to government document redactions, a truck licence plate and suggestions that a public affairs firm executive was a Liberal “provocateur” who carried a Nazi flag at the protests in Ottawa.
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On Nov. 20, Freedom Corp. lawyer Brendan Miller filed an application to the Public Order Emergency Commission containing four requests.
Two of them involved Miller’s “troubling” theory he expressed during hearings on Monday that Enterprise Canada senior executive Brian Fox was the Nazi flag-bearing man seen at Freedom Convoy protests around Jan. 29 in photos widely distributed on social media.
Miller wanted the inquiry to compel Enterprise to produce certain documents and send Fox and another executive to testify.
“Freedom Corp. alleges that there is ‘evidence and grounds to suspect that the flags and purported protesters using them, were not protesters with the convoy at all, but provocateurs,” the ruling explains.
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Miller’s theory is that Enterprise Canada “carried out such conduct at the direction of the Prime Minister, his staff or both,” Rouleau added.
His identification of Fox was based on a comparison of publicly available pictures of him with distant pictures of the Nazi flag-bearer’s face, which is mostly covered by shadows, as well as an “untested” affidavit by a man who purported to have recognized Fox from Miller’s photos after having spoke to the flag man in January.
In a statement, the firm said Tuesday that Fox had not been in Ottawa since 2019, was a Conservative party member and that Miller’s allegations were “absurd,” “despicable” and “highly defamatory.”
Rouleau flatly denied Miller’s requests while criticizing the strength, or lack thereof, of the evidence.
“Freedom Corp. has raised serious allegations regarding Enterprise Canada with little foundation in evidence,” he said.
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“The claim was initially supported by a side-by-side comparison of unclear photographs and a man that Freedom Corp. has asserted is Mr. Fox. The photos provide no useful information about who was holding or photographing the flags in issue,” he added.
He also said the affidavit provided by protester Shawn Folkes “does not resolve the absence” of foundational evidence.
“It is fair to say that the strength of that identification evidence is not high,” Rouleau wrote, adding that calling Folkes, Enterprise Canada and Fox to testify would be a “very significant distraction from the Commission’s core mandate.”
Another of Miller’s requests to the commission was that Ottawa or Ontario police produce results of a licence plate search on a truck that was photographed in the capital around Jan. 29 featuring a large Confederate flag and an “upside-down Canadian flag.”
Miller again based his demand on his theory that the truck “did not belong to a protester, as it was parked away from other protest vehicles and photographed by a person that did not support the protests,” reads the ruling.
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Miller was referring to a viral tweet of the Confederate-flag-bearing truck by Ariel Troster, who has since been elected city councillor and is staunchly opposed to the Freedom Convoy.
Rouleau denied the request.
“The basis for seeking this information is purely speculative. There is no proper foundation in the evidence to believe that the registration information for this vehicle would disclose the existence of an agent provocateur. Having carefully reviewed the information provided by Freedom Corp., I conclude that this is, in essence, a fishing expedition,” he wrote.
The commissioner’s stern words extended to an additional request by Miller made at 1:31 a.m. on Nov. 22 to have Ottawa-based freelance photographer David Chan testify.
Miller claimed Chan was a “photographer for the Prime Minister” based on the fact he had pictures of Justin Trudeau in his online portfolio and that he was part of the “agent provocateur” scheme to embarrass protesters when he took pictures of an individual bearing a Confederate flag and a truck.
Rouleau also noted an apparent contradiction in Freedom Corp. documents, as they originally claimed Fox was the one who took the picture of the man with the Confederate flag.
Miller’s final request on Nov. 20 was that the Government of Canada be forced to produce unredacted versions of certain documents. Since then, government lawyers removed certain redactions requested by Freedom Corp.
Rouleau denied the rest of Miller’s ask because he said he trusted that government lawyers had done their job diligently and there has been no evidence that they unnecessarily redacted documents.
“I have no reason to question the good faith of their review. Having completed that review, I see no useful purpose in ordering that the redactions be lifted,” read the ruling.
Watch the Emergencies Act inquiry live:
‘Sloly is incompetent’: Minister discussed Emergencies Act early in convoy .
Transport Minister Omar Alghabra is also on the witness list as the inquiry digs into Ottawa's decision to invoke the Emergencies Act in response to the 'Freedom Convoy' protests.The texts also showed that discussions about the possibility that the Emergencies Act could be invoked began as early as Jan. 30, which was the Sunday of the first weekend the protest had arrived in Ottawa.