The commissioner leading the public inquiry into the use of emergency legislation will not allow a lawyer for “Freedom Convoy” organizers to explore an unsubstantiated claim that hateful images seen at last winter’s Ottawa protests were staged.
Judge Paul Rouleau issued a written response to a request by Freedom Corp. attorney Brendan Miller, who wanted to call new witnesses, saying his allegations are “disturbing” and have “little basis in evidence.”
Miller accused the lobbying firm Enterprise Canada of planting Nazi and Confederate flags at the protest — a charge the company called “absurd and despicable” as well as untrue. It also sent a cease-and-desist letter saying it intended to serve Miller with a formal libel notice.
Rouleau said it makes no sense to call witnesses to test claims Miller is making without evidence, and he questioned why the attorney only raised the issue at the end of the Public Order Emergency Commission’s six-week public hearings.
He also denied Miller’s request to have police conduct a license plate search on a truck that was seen carrying a Confederate flag. “This is essentially a fishing expedition,” Rouleau wrote.
The decision came a day after Rouleau briefly had Miller removed from the hearing room to talk over him as he argued to call a witness at the last minute.
Murray Sinclair, the former senator and judge who has led three inquiries, said Rouleau’s response is the right way to deal with unproven allegations and prevent the process from being derailed.
“The way he addresses it is the approach I would have taken and most people who run investigations probably would have taken,” said Sinclair, who is now a lawyer at Winnipeg firm Cochrane Saxberg.
Sinclair recalled an investigation he led in the late 1990s into the deaths of a dozen babies at a Winnipeg hospital. The lawyer for a doctor accused of wrongdoing tried to discredit nurses’ testimony by claiming, without evidence, that one had had a relationship with the doctor.
Sinclair dismissed the questioning at the time, saying it was not relevant to the mandate of this investigation and did not appear to be grounded in reality.
He saw a parallel in Miller’s request.
“Giving them free reign to produce evidence of something that they want to get evidence of because they have a particular point of view about something would be, so to speak, handing over control to the mob,” Sinclair said.
“The primary responsibility you have when you’re running an investigation is to keep it focused because you have so many options and so many possible areas of interest.”
Sinclair said attorneys bring up information during their questioning that “may be completely wrong or may be based on misinformation or based on lies.”
It is simply part of the duty of judges and commissioners to test claims and determine whether they deserve a platform, Sinclair said.
“If people come forward and make allegations of misinformation in the course of their depositions or in the course of their cross-examination of witnesses, that’s almost part of the legal process in the broadest sense of the word.”
Sinclair made a similar assessment as a senator in 2017 during a committee study of a bill that ultimately added transgender people to the protections of the Canadian Human Rights Act. Some witnesses testified that the change would legally force people to use pronouns and gender terms they don’t agree with.
“The concerns expressed, while strong and legitimate, were not well founded and were in fact contrary to the intent of the bill,” Sinclair told his colleagues at the time.
Wayne MacKay, professor emeritus at the Schulich School of Law at Dalhousie University, agreed that Rouleau made the right call in his Wednesday decision.
“I think he could have been more blunt and in some ways more gruff than he was,” MacKay said.
He noted that it is relatively new to see what he called the “conspiracy element and the extremist group element” come up in a public inquiry.
“This may be the first public airing of it,” said MacKay, who will moderate a panel next Tuesday for the commission that he says will involve the role of social media disinformation and extremist groups.
MacKay said the mass casualty commission related to the April 2020 shootings in Nova Scotia made an early decision not to entertain theories that the gunman’s spouse was complicit in the shootings. He said commissioners argued the evidence did not support that theory.
Both Sinclair and MacKay also said Rouleau made an important point by noting that Miller made his allegations in the final week of the commission’s investigative phase.
Sinclair said it’s rare that commissioners will allow new arguments this late in the process.
“It could result in further delay or a sidetracking of the investigation,” Sinclair said.
This report from The Canadian Press was first published on November 23, 2022.