:
I call this meeting to order.
Welcome to the 21st meeting of the Special Joint Committee on the Declaration of Emergency created pursuant to the order of the House on March 2, 2022 and the Senate on March 3, 2022.
Today's meeting is taking place in a hybrid format, pursuant to the House and Senate orders.
Should any technical issues arise, please advise me, as we may need to suspend for a few minutes to ensure that all members are able to fully participate.
Witnesses should be aware that translation is available through the globe icon at the bottom of the screen.
I wish to inform members that Professor Roach has undergone all technical tests successfully, and both witnesses have been informed of their duty as it pertains to responding to questions.
I always like to provide a bit of a preamble to the witnesses that, given the nature of the committee, you may find from time to time that a parliamentarian may interject to take back their time. They may interrupt you. Please don't take that personally; it's not a personal affront. They have a long list of questions and a very short period of time in which to conduct them. We ask that you acknowledge, if a senator or an MP interjects, that it's not a personal affront to you.
For our first panel this evening, we have with us, by video conference, Kent Roach, professor in the faculty of law at the University of Toronto. Here in the room, we have Leah West, assistant professor at the Norman Paterson School of International Affairs at Carleton University.
You will each have five minutes for your opening remarks. We'll begin online.
Professor Roach, the floor is yours.
:
Thank you very much for this invitation to assist with the important work of this joint committee.
Although I am a member of the Public Order Emergency Commission's research council, I should stress that I am speaking only in my individual capacity and, indeed, I am not privy to the commission’s internal deliberations as it prepares it report.
I have written about the events leading to the declaration of emergency, both in my book Canadian Policing: Why and How it Must Change and in an article in a special issue, volume 70, number 2 of Criminal Law Quarterly, where Professor West also has an article.
In both of these venues, I suggest that the use of emergency powers was related to policing and policing governance failures. This is an important matter even when the Emergencies Act is invoked, because section 20 of the Emergencies Act preserves the existing and, I would submit, fragmented and dysfunctional governance silos of the local, provincial and national police.
Let me make three points. One is that, if you compare the police responses in Ottawa and Toronto, you will see that the Toronto response was more effective and reflected the lessons of the Morden report that there should not be watertight compartments between policy and operations, something that was inelegantly referred to more than once in the emergency commission as “church and state”.
This lesson should have been learned long ago, at least since the 1981 McDonald commission, which, like the Supreme Court in its 1999 decision in Campbell and Shirose, stressed that police independence is limited to the ability of every police officer to make law enforcement decisions about whom they will arrest and investigate. Everything else, in my view, is potentially a matter that the responsible governing authorities, the democratically accountable authorities, can assume responsibility for. In a democracy, the police should not be self-governing.
My second point is to address Bill , which is before Parliament. It is a good idea, in that it recognizes that the responsible minister can direct RCMP policies in the form of public directions. It has the potential to clarify police governance. Unfortunately, it continues to define police independence too broadly by exempting RCMP operational decisions, including day-to-day operations, from the ministerial directives. The term “operational” only occurs in policing laws in Ontario and Manitoba, and has indeed caused much confusion and the sort of under-governance that led to the Ottawa police board's having no published policies before the convoy arrived about how to police protests on Wellington Street. They had policies on labour protests and on indigenous protests, but no public policy on Wellington Street.
My final point is that we need such policies. We need to think creatively about these policies, including how to use barriers as a means to reconcile the right to peaceful protest with human safety.
I would urge this committee to be creative and to explore the suggestions of former Senator Vernon White about a redesign of Wellington Street. I would also urge you to consider giving the RCMP a clear lead in policing the parliamentary precinct and border crossings, but only if its governance and resource policies are addressed.
Bill could be part of this reform, but only if its overbroad definition of police operational independence is rejected through an amendment, one limiting police independence. Police independence should also be defined so that it does not impede the ability of police leaders to control and manage their organizations. Again, this can be done if we limit it to law enforcement discretion.
I would be happy to answer any of your questions. I have particular concerns addressed in my Criminal Law Quarterly article about some of the elements of the events with respect to the Emergencies Act.
Thank you very much.
:
Thank you very much, Chair, for the invitation.
In the short time I have with you today, I'd like to focus on two issues of statutory interpretation that I think are exceptionally important to this committee's work.
The first is a reference to the CSIS Act and the definition of “public order emergency”. The second I may not get to, I admit. It's the “any other law of Canada” criterion in the definition of “national emergency”.
Before getting into the specifics, I think it's important to set the stage with the modern principle of statutory interpretation and a few core rules.
The leading and well-established Supreme Court precedent on statutory interpretation comes from Rizzo—
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The first point I would like to address is the reference to the CSIS Act definition of a public order emergency, and the second, which I hope to get to—but if not, in questions—is the definition of “any other law of Canada” and those criteria in the definition of national emergency.
Setting the stage, the principle of statutory interpretation, or the modern principle we apply, was set by the Supreme Court in 1998 in a case called Rizzo & Rizzo Shoes Ltd. It has really become a mantra. The quote reads:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
There are a few assumptions that underlie statutory interpretation using this principle. One of the clearest is the presumption against tautology, meaning that every word in the act must be given meaning. Every feature is deliberately chosen to play a role and there is no unnecessary or meaningless language in statutes. The legislature does not make the same point twice.
A second presumption is that of consistent expression. It is presumed that the legislature uses words and patterns of expression in a consistent way. Once the legislature adopts a particular way of expressing something, it avoids variations and prefers to express the same meaning in the same way.
Of course, undergirding all of this is the concept of the rule of law, which means, in part, that the law as written has to mean something tangible, articulable and discernible to those who read it and are subject to it, and those tasked with interpreting it, so that those who exercise power given to them through the law cannot do so by whim, abuse or prejudice.
This brings me to the definition of a public order emergency. The plain text of section 16 states that a public order emergency “means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” “Threats to the security of Canada” is then defined in the act for the sake of that portion of the Emergencies Act. Section 16 states that the phrase “has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act”, the CSIS Act.
Just looking at this provision, the statute tells us not only that the EA incorporates the words in section 2 of the CSIS Act, but that it also incorporates the meaning assigned to it under that act. As we know, and as I just said, every word used in a provision has meaning and its use is deliberate.
This understanding is consistent with the clear intention of Parliament. During the debates over the act, much of the concern around the Emergencies Act was the ability to invoke the act to quell public dissent under a public order emergency. Moreover, we know that during the FLQ crisis, the War Measures Act was deployed against politically motivated terrorism, so, not surprisingly, this section of the act got a lot of attention.
In response to those concerns, it was made clear that only protest and violence that meet the definition of a threat to the security of Canada as defined in the CSIS Act, and then only those threats that also meet the definition of a national emergency, could form the basis for a declaration. This is what the bill’s sponsor, Perrin Beatty, referred to as a “double test”. He also reminded members of the House who were concerned with how broad and vague the CSIS Act definition is that this definition had received exhaustive scrutiny by Parliament.
Thus, we know from both a plain reading of the text and the clear intention of Parliament that the meaning of “a threat to the security of Canada” comes from how it is understood and applied in the CSIS Act, and the breadth of the CSIS Act definition—which is, I would argue, quite broad—is then narrowed through the definition of a national emergency.
I would also put forth that there is nothing in the other elements or provisions of the Emergencies Act that is inconsistent with this understanding or calls into question this interpretation.
Additionally, the incorporation of section 2 of the CSIS Act is actually not unique to the Emergencies Act. The same move is made in the Security Offences Act, the Access to Information Act, and the Privacy Act. In each of those acts, who is doing the interpreting, in terms of what meets the threshold, is not necessarily CSIS. In the case of the Security Offences Act, for example, it is the Attorney General, when deciding when to seize jurisdiction from the provinces.
Finally, I want to reiterate that the requirement is that the national emergency arises from a section 2 threat. This is a causal requirement, meaning that what is a national emergency of an urgent, temporary and critical nature, and beyond the provinces, arises from threats of serious politically motivated violence—meaning that economic or reputational harm and all the other things that we certainly saw as a result of the crisis in Ottawa and across this country have to be the result of serious threats of violence as understood in the CSIS Act.
I know that I'm now over time. Hopefully, in questions, I can talk about what “any other law of Canada” means.
Thank you.
:
Thank you very much, Chair.
Thank you, Dr. West and Dr. Roach, for being here.
Since you didn't get to complete your opening remarks, could you table those with the committee at the end of today so we could have access to those, please? Thank you so much.
Dr. West, you indicated publicly that a national emergency is a public order emergency that can't just arise from incompetence in various municipalities or provinces. It has to arise from a threat to the security of Canada, which typically means terrorism or violent extremism, to meet the threshold to invoke the act.
Have you seen any documents, anything you've looked at since the invocation, that this threshold was met?
Thank you to both witnesses for their testimony. I'm going to direct my questions to Professor Roach.
First of all, it's nice to see you, Professor Roach. By quite a coincidence, we have two U of T law alumni here at the committee, at least two.
I'm going to ask you about three areas of questioning.
You mentioned some of the things you've written about. There are a couple of things of yours that I've read. I'm going to quote to you some of the passages in an article called “The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights”, which appeared in a German publication. It touched upon something that you identified a bit in your opening. I want to take you to it.
It's about this idea of possible areas for improvement and the idea that policing is multi-jurisdictional, particularly in a federation like Canada. What you said in that article is this:
One limit of the inquiries triggered by...the Emergencies Act is that they are limited to examining the federal government’s actions, whereas the roots of the Ottawa occupation and the Windsor blockade are in failures of local policing, including planning for protests. There is no requirement that Ontario, which has ultimate jurisdiction over the local Ottawa and Windsor police, will call a similar inquiry. This is an omission given that emergencies are defined as something that exceeds the capacity of the province.
I know you're intimately familiar with the inquiry that Justice Rouleau was leading. We actually saw an effort to have the Premier of Ontario come before that inquiry, which was then subject to some litigation that was successful from the perspective of the premier's not being interested in participating.
Can you tell us, from your perspective, what you would recommend that we should be doing as a committee to try to rectify this situation, given the constitutional parameters that we're operating under or the division of powers? Going forward, how would you see future inquiries involving by necessity all three levels of government when there is an emergency such as this that gets triggered?
It's over to you, Professor Roach.
You're quite right that the premier and the solicitor general did not testify and successfully invoked parliamentary privilege, so that's obviously a problem going forward, but I was actually surprised at the level of provincial and municipal buy-in at the Rouleau commission.
It seems to me that the only way the federal government can control that is by giving the federal government and federal policing a lead role in those areas, whether it be the parliamentary precinct or border areas. I think that's really the only way the federal Parliament can respond to this interjurisdictional nature.
Professor West mentioned the Security Offences Act, which is not well known enough, but we actually do have precedent for federal pre-emption of provincial areas in the national security area. This might be an area for you to consider if you want to ensure there will be full accountability for future emergencies should they develop around these same areas of federal interest.
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Yes, the OPP operational handling has actually gotten a lot of praise. I'm not going to join that bandwagon. My concern is that intelligence operations started with respect to indigenous occupations. Also, some of the product we've seen uses phrases like “the patriot movement”, which don't really seem to me to strike down.
Although the RCMP and CSIS are subject to fairly rigorous scrutiny by NSIRA, the OPP and municipal forces, when they collect intelligence, are subject to very limited scrutiny, only by the Ontario independent police review director, if that person has enough resources to do systemic reviews. My understanding is that they don't.
Again, this may be another reason for the federal arms to play a lead role, because we cannot guarantee adequate levels of accountability at the provincial level.
Hello, Ms. West, and thank you for being here today.
I heard your answers to the questions from my colleague Mr. Motz regarding the justification for declaring an emergency. I thought I understood that you were not in a position to determine whether it was justifiable or not, given that you did not have all the evidence.
Ms. West, some people have stated the hypothesis that this was an emergency that justified invoking the act based on a legal opinion that is supposed to have been given. Do you consider it essential to read the legal opinion? Is your knowledge of the events sufficient alone to determine whether there was a threat to the security of Canada or not?
:
That's an interesting question.
I think the definition, as it stands, is already quite broad. I think that reflects the concerns of opposition MPs, the Canadian Civil Liberties Association and the Canadian Bar Association when the act was first introduced.
The definition of “threat to the security of Canada” is intentionally broad and somewhat vague, because CSIS is an agency that needs to be able to interpret potential threats, things that are not quite there yet and things that are hard to discern. Having very firm lines around what is and is not up for a potential investigation, as in the context of a criminal investigation, is something that is avoided by having more broad and vague language, as is used in the CSIS Act. It's not so vague as to not denote anything, but it is quite vague.
To say how broadly we can interpret it.... I have a hard time with any broadening of it, especially when we talk about paragraph (c) under the definition of “threats to the security of Canada” in section 2. What we're talking about here is terrorism and violent extremism. These things are already quite hard to put your hands around, to understand what is or isn't violent extremism, for example. To say that as we currently understand it we could interpret it even more broadly, I don't see where there is a limit. I think we have to rely on the text.
Where there is discretion is in that weighing of the factors to decide whether or not that definition is met. It's not what the words themselves mean.
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Yes, “any other law of Canada” means any other federal law. It does not literally mean any other law of Canada. This was decided by the Supreme Court in Roberts, in 1989. That case involved interpreting section 101 of the Constitution. It includes federal statutes or federal common law.
Typically, federal legislation says any law of Canada or of a province or “any other law” if it's used to denote wider application. The reading of “any other law of Canada” makes more sense in this if you look at paragraphs 3(a) and 3(b) of the definition as well. Paragraph 3(a) would become redundant, because it already says it has to be beyond the authority and capacity of a province. Paragraph 3(b) doesn't have anything to do with provincial jurisdiction.
Realistically, once the executive has decided that the criteria under the chapeau of paragraphs 3(a) and 3(b) are met, all they need to look to, then, is whether or not there are other federal statutes for them before they invoke the Emergencies Act.
:
Got it. Thank you very much for that. That's great for my own analysis on this.
Senator Boniface, you have five minutes. Oh, you were timing me too.
We have great co-chairs at this committee, by the way.
Thank you so very much and thank you for the little bit of extra time. I noted that.
Senator Boniface, you have five minutes. I have taken back the chair and the floor is yours.
Thanks to both of you for being here. I agree with the chair. It's important to have your presence and your views, so thank you for taking the time.
I'm going to address my first comments to Professor Roach.
First of all, thank you for your comments. I'm particularly interested in some of your references to police and police jurisdiction and the role of the province. I'd be interested in your giving a better sense, if it had been a perfect world, of what you would have expected in terms of the role of the province.
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Thank you for your question.
[English]
Anyone can say that things are charter-proof. I've written extensively about how the charter sets only minimal standards, but there were many aspects of the emergency order, not only the financial aspects, that I think could be charter-suspect. Being able to seize or freeze assets without any discernible due process is something that could be vulnerable. There is also the use of the “breach of the peace” concept in the second part of the regulation, but we actually don't have an offence of breach of the peace, and it is vague. So I would not be willing to write a clean bill of health, with respect to the charter, for either the financial or the protest-related measures.
Similarly, the definition of interfering with trade as an offence is staggeringly broad. I think it's important that we apply the charter standards, but the fact is, that's never going to happen before a court, and just because the government says something is consistent with the charter, that doesn't mean it is.
:
Yes. It is technically true that the charter only binds the state, but there are section 8 decisions under the charter where the fact that the nurse got the blood sample as opposed to the police officer does not immunize something from the charter.
Of course, in the area of financial sanctioning, the use of financial institutions at the direction of the state, I think, could very well be subject to charter scrutiny. I think the courts will be sensitive to the fact that if they hold the opposite, then it really does create a pretty large accountability gap, because so much in the area of financial sanctions or indeed surveillance is now done by the state directing the private sector.
I think our courts are aware of this and interpret the charter in a broad way, in part because they don't want to provide governments with incentives to basically say, “Here's someone not subject to the charter. Why don't you go and do our dirty work for us?”
:
Thank you, Senator Harder, for that question.
I think CSIS came very late to recognizing that violent extremism, particularly from the far right, was taking far more lives than terrorism inspired by al Qaeda or Daesh. Again, when we evaluate CSIS's determination that there was not a threat to the security of Canada, we have to recognize that it was coming fairly late to that game. I'm not saying whether that means they were right or wrong, but I think it is relevant.
Since that time, there has been.... Again, in Operation Hendon, you see in references to the “patriot movement” an assumption that the far right in Canada will be very similar to the far right in the United States. There are certainly transnational dimensions to this that we've unfortunately seen in New Zealand, Buffalo and elsewhere, but I think we need to develop a much more sophisticated understanding of ideologically motivated extremism.
I would expect that to come mainly from CSIS, as opposed to the police. From the lessons of the McDonald commission, police are not trained to have the sort of political skills to do intelligence, and particularly saying when extremism, which I think is something we shouldn't necessarily be extremely concerned with, passes into violent extremism. That's not necessarily a call that I would expect the police to be best suited to make. I would rather have CSIS making that call, subject to ministerial direction and subject to all the oversight that comes with it.
Do we need more legal tools? I think that really remains to be seen. I don't think.... I agree with Professor West that there are lots of people in the security establishment in the federal government who want to expand section 2 of the CSIS Act. Well, you're supposed to do that before, not through interpretation. I agree with Professor West that this is kind of basic in a rule of law state, but I also think this is not something that should be undertaken on the fly. It is extremely serious, especially given the new powers we've given to CSIS to engage in threat reduction. Maybe we need to go back and really rethink the entire CSIS-police distribution.
We also know through the RCMP's institutional report to the commission that it has four different intelligence sections, including on ideologically motivated extremism. The civilian review board is not going to be able to keep up with that, especially when it has to deal with CBSA. I hope NSIRA and the National Security and Intelligence Committee of Parliamentarians are taking a hard look at that from both a rights perspective, that we're not branding extremism as something that should be subject to intelligence, but also from the efficacy point of view, that we're actually doing it with the needed resources and skills that are required.
I'm sorry for the long answer.
I'd like to thank both professors for their attendance today.
Dr. West, the promised Canadians, when he formed government, that he would run an open and transparent government. He agreed to co-operate fully with Justice Rouleau when asked to testify, yet he and his cabinet have hidden behind the principle of solicitor-client privilege in not releasing the legal advice he received.
A “just trust us” argument is unacceptable to Canadians. Without the benefit of that opinion, you opined in a legal article—which was co-authored by yourself, Michael Nesbitt and Jake Norris—in the Criminal Law Quarterly that:
to have properly justified the declaration of a public order emergency, the government needed to base its invocation on three novel, unconventional, and previously unanticipated ways of interpreting this legal threshold
Can you opine on that? My secondary question to that is with regard to how this article was written before all of the evidence was heard. Does your opinion still stand? If not, how does it differ?
What I heard and what I've heard all the way through—as someone who's trying to take the facts and the understanding and apply them to the law—is a lot of facts being applied to different elements of the definitions, but they're not ever necessarily in the right order. You don't meet the first hurdle before you get to the next one before you get to the next one. They're all kind of just applied as if there isn't a structure to the act, so you get facts that talk about one element of the definition and then facts that talk about another. However, they don't really lay it out in terms of “you have to meet this threshold, then this one and this one”.
So, I think if you're just reading the act and aren't someone who's a statutory interpretation nerd, you look at it and think, “Oh, well, all of the things here match up with all of the things that are in the act, so that makes sense”, but that's not the way the statute is laid out. There's a series of thresholds that need to be met, and each word matters. That's why I found it compelling, but not if you're looking at it through the eye of someone who is keen on statutory interpretation.
I'll continue along this line of questioning, Professor West.
Earlier in your testimony, you indicated that you obviously don't have all the facts, because you're not privy to a lot of the security and intelligence information, among other things. Just now, you testified that you're applying the facts to the law, but you would agree that you don't have all the facts.
Dr. Leah West: I don't.
Ms. Rachel Bendayan: I also looked at your Twitter, and we seem to have picked up on the same article of November 30, last week, where CBC reported more details about the murder plot in Coutts, Alberta, where pipe bombs and more than 36,000 rounds of ammunition were seized by the RCMP there.
In the CBC story were mentions of unsealed search warrants that included text messages between those charged and “the bosses”, who told the charged men that “the real goal for the protests included altering Canada's political, judicial and medical systems.”
You tweeted about this story. In your tweet, you say, “Curious as to why these men are not charged with terrorism offences.” I was wondering if you could provide us with your insights into what you were referring to and, in particular, the danger of ideologically motivated extremist violence.
I'll move now to Professor Roach.
There are two articles—among many more, I'm sure—you published on this topic, Professor. I would like to refer to your May 12 article, where you state, “One issue that should be examined is whether CSIS failed to collect and share intelligence on whether there were links between the protests and far-right violent extremism. Canada's intelligence agency has been slow to accept far-right terrorism as a security threat”, and you go on. I wonder whether, in connection with this article and that statement, you could provide your recommendations about how we might address that—perhaps in writing to the committee, because my time is very limited.
I will also point you to your February 14, 2022 article, which was, of course, at the height of the occupation. You stated, “The RCMP acting as federal police only has jurisdiction over actual federal property. It is the local police that is responsible for the public street...that runs in front of the Parliament building and the main highway in Windsor leading to the Ambassador Bridge. Such arrangements should now be reconsidered.”
Again, thinking towards the recommendations this committee will make, could you provide your thoughts to the committee on those statements, as well as your statement—if I understand your testimony here correctly—to the effect that all of this is, essentially, the result of a failure in policing?
I'm not sure whether you would like to expand on any of those points in the short amount of time I have left. Again, if I could get your commitment to provide your thoughts in writing to the committee, we may benefit from them.
Ms. West, I am going to continue where I left off on the question of interpretation.
I don't want to criticize or support the legal opinion that some interlocutors have seen, since I have not seen it. In fact, it does not exist for us. Given that you and Professor Roach are here, I would like to verify a principle of interpretation.
As I understand things, when a statutory provision grants rights, it will be given a larger and more liberal interpretation, and when a provision instead takes away rights, it will be given a more restrictive and limited interpretation.
Am I correct in thinking this, Ms. West, or am I mistaken?
It's important, for me at least, to get crystal clear about finding recommendations coming out of here. Having both of you here as subject matter experts is a very valuable source of that primary information that, ultimately, our committee will deliberate on.
Just to be clear, do you believe that the Emergencies Act, in its current context, adequately serves its intended purpose?
Professor West, go ahead.
You may have heard me, even in this meeting and other studies, talk about the practical failure of policing. It is not within our mandate or within our scope here to delve into that, but there hasn't been a royal commission on policing since 1962.
Professor Roach, I know you've written about unequal policing. I think it's fair to say, for many people on the outside looking in, that there was certainly a double standard applied to this particular group. Do you agree with my assessment that we ought to embark on a royal commission on policing to be able to unpack the responsibilities of police?
My question is for Professor West and relates to the territorial nature and the difference between a localized emergency and an emergency that affects Canada as a whole.
I was reading the speeches by Perrin Beatty and he said, on November 16, 1987: "The emergency in question must affect the whole of Canada or be so great as to exceed the capacity of the provinces to cope with the emergency."
According to this, a localized crisis or localized situation would not meet the definition of a national crisis that would lead to the declaration of an emergency.
Can you explain your thinking on this subject?
:
Well, yes, to a certain extent. We also know, however, that, whether it was through operation Hendon or the ITAC reports, Ottawa knew this was coming.
Therefore, I don't think it's simply “they had the benefit”. I think they had the benefit of being criticized for what they did in G20 and actually got their house in order. They had a police service board and a police service that were working together functionally. They had a mayor who bothered to sit on the police service board and wasn't off on his own frolic negotiating with protesters.
I think a lot can be learned from the Toronto experience. I've said critical things about the police—you know that, Senator Boniface—but I also think we need to give credit where credit is due. There are two places where you should look to see what went right: what happened with the actual Parliament grounds not being breached—in light of what happened in 2014—and what was done in Toronto. I think those are significant successes.
Your committee should learn, in a balanced way, both from failures and from what has worked.
That concludes the second round. We have the ability to do a third round.
A voice: Was Senator [Inaudible—Editor]?
The Joint Chair (Mr. Matthew Green): No, it was originally slotted for Senator Carignan. There were two senators in this round.
We are contemplating a full third round of five minutes, and I want to put that to the committee. I understand there are some people who want to split times, so I'm seeking the direction of the committee on proceeding with a five-minute round. Recognizing that Senator Patterson is not here, we will claim some of that time.
I know the guests have been here for quite some time, both in person and online, so I would also like to get direction from the committee on whether or not a five-minute health break might be appropriate. Do you want to continue to work right through?
:
We could go for less time, if you want to reclaim some of that. We could do four-minute rounds, perhaps. It is at your discretion.
You want four minutes. This is great, guys. Thank you for your co-operation.
We're going to go with four minutes and we will acknowledge the split times. For the parties that want to do split time, are you requesting a hard stop at two minutes? Do you want me to intervene, or just let you figure it out?
I'll let you figure it out.
Okay, thank you for allowing us to work out that bit of housekeeping.
That being said, we will begin the third round for four minutes with Mr. Motz.
Mr. Motz, you have the floor for four minutes, sir.
One of your colleagues from the law school at Queen's University, a professor by the name of Dr. Bruce Pardy, wrote an article today in the Toronto Sun. The heading was, “Invoking the Emergencies Act was clear overreach”. He sets out examples as to why he forms that opinion. I don't know if either of you have had a chance to review the article, although that's not really relevant to my question.
This question goes to both professors, but I'll start with you, Professor West. Do you agree with that particular statement? If you don't, explain why.
:
Yes. That's something where my views may have changed with some of the evidence that's come forth since February 14, Valentine's Day, when I should have been doing something other than writing a piece.
In any event, I think best practices emerging out of Ipperwash, emerging out of the G20, are that the police should have a plan to talk to the protesters, to provide the protesters with an opportunity to self-police, while recognizing that if they fail to do so and fail to obey the law, then the police have to come in. I think the police also need to maintain their neutrality. I think various police forces that are now pursuing discipline against officers who expressed their political views about the protest.... I think that is part of maintaining their neutrality.
I think that if we had an advanced plan that told everyone that we're going to talk to protesters until x point, and if we also had transparent political direction to the police, this would respond to some of these concerns about inequality.
Ms. West, we know that the Emergency Measures Act is emergency legislation. I have often described it as heavy artillery in the government's legal arsenal because it has existed for three decades and has never been invoked. The ancestor of the Emergency Measures Act is the War Measures Act, which was invoked for the last time in October 1970 in Quebec in the circumstances we are familiar with. It is therefore a law that is not often used and will be invoked only in extreme cases, in exceptional cases.
In the case that concerns us, the situation that took place last February, the events that occurred should not have occurred, in my opinion. We agree that it made no sense to block Wellington Street in Ottawa. The siege had to be lifted, I agree. However, the situation was still localized in Ottawa. There were also localized events at the Ambassador Bridge, in Coutts, and so on. They were really local situations. The Emergency Measures Act was invoked to respond to demonstrations, situations that were entirely manageable in normal times and that occur so rarely in those precise places. In my opinion, it was not justified. I may be mistaken. That is my opinion.
My question is this. In your opinion, when the Emergency Measures Act is invoked in situations that do not justify it, what are the consequences?
We agree that it is extreme. The Emergency Measures Act had not been invoked in 30 years. The last time we saw it was in October 1970 when it was still the War Measures Act. What is the effect of invoking it if it is not justified, as I suggest?
:
Thank you very much, Chair.
This is for Professor Roach and Dr. West, if you would like to weigh in on this one. I'm trying to come up with a recommendation that deals with, perhaps, mandatory involvement of the provinces or something in a context that says they can't step back and not reply or not attend meetings when people are trying to get a solution together.
Is there any way, within an amendment to the act or if the act is redrafted, as I suspect it should be, that you could make that an obligation?
:
Thank you very much, Mr. Chair.
Again, thank you to the witnesses, particularly for staying later than anticipated.
Professor Roach, I want to go back to the issue that you discussed several times tonight: the fragmentation in the nature of Canada's police system and how that was observed in the course of the events last February. You referenced Toronto a couple of times, and Senator Boniface was trying to get in on that, as well.
I'm not suggesting that Toronto benefited from the knowledge of the Ottawa experience alone, but it was sequential. I take your point about the mayor, the different attitudes of mayors and the local city police forces. Surely there was a difference, also, at the level of the OPP in terms of its integration in the approach that was taken in Toronto versus the reluctance to become involved in Ottawa. Would you agree with that assessment?
:
I asked Senator Harder the question, since it is his motion. Personally, I think they are different subjects.
The motion suggests that the committee invite no further witnesses, and I agree that a date be added. Mr. Motz proposed that it be reassessed after the Rouleau report is submitted, and I agree with that.
Second, the motion then instructs the analysts to prepare a draft report, but that is another subject.
Third, the motion suggests that we must present our report before March 31. The idea of setting ourselves a deadline may be good or bad, but it is definitely a different thing.
I really think these are four different subjects. If I had to vote on the motion now, I would be unhappy about voting against it, because I agree with some of the proposals. If we keep all these items together, we may not be able to agree, when we could certainly agree on at least two or three of them.
:
I would just like to add that I think we have general agreement around the table that we need to look at getting the report from the Rouleau commission. We need to see how that plays into our report from the analysts. We need to get the analysts working, as Mr. Harder has indicated, on a report for us as a committee. We can then start deliberating and making recommendations.
Given the number of weeks that we sit after the Rouleau commission is to be out, it would be impossible for us in all reasonableness to have a March 31 deadline. Even if we don't call anybody anymore, it would be virtually impossible for us to get through the evidence to be able to look at his report and then turn around and make recommendations based on that by March 31.
Obviously, June 23 is the last day before we rise for summer, I believe. If we're sooner, then we're sooner, but that should be it. We have to be done by then. If we're done sooner, so be it. I think that's reasonable.
It allows us to have a fulsome report. We've heard some great recommendations on everything from policing to the interpretation of the law, etc. I think it would serve us well in what our role is to give us some latitude on time.
:
Senator Boniface, please take the chair, for my own intervention.
I think I have stated that I have a keen interest and that I am willing to accept whatever findings come from the Rouleau commission, and I hope that we will use that in our contemplation of the report. I recognize the time crunch. I also recognize the remedy that has just been put forward that we could contemplate using constituency weeks or requesting additional time. As it's stated right now, I'm not sure that having three meetings after the final report would be enough. I think we would logistically look to having to spend more time if we wanted that deadline.
Having said that, I also respect the notion that if new information were to come to this committee, we would be able to contemplate that information in an open forum by calling a meeting that includes committee business. That's if we were to contemplate documents that were received or what have you.
To this point, I think we're doing pretty well on this motion, and I'm hoping that we can continue to iron out a pathway forward here. However, as it stands now, I am in support of this, recognizing that there could be a commitment to increase the frequency of our meetings in order to have the report, as well as provide an open forum for which information can be contemplated in public.
I'll acknowledge the fact that any time we're in camera, at the passing of a motion, we can move to go out of camera and into the public domain again. One doesn't preclude the other, at least in my understanding.
As far as interim reports go, I'll say that what I'm not on for are motions that contain a conclusion by any party of this committee that we would then spend hours on in a filibuster, contemplating it in a very public and partisan way. I'm hopeful that any reports that come do so in a way that respects the precedent that is set in our other committees, that we build the report together and that we submit it as a committee.
Those are my comments.
Senator Boniface, I'll take the chair back and I'll recognize Senator Harder.
:
I listen to our debates and I understand all the participants' concerns. I don't know whether I should propose it now or later, but could we not instead agree to reject the whole thing?
Between March 31 and June 23, we could meet on May 15 or May 30, for example. We actually considered the possibility earlier of meeting more often, as our colleague Mr. Virani suggests, but we realized that it was not possible, there being no clerks, interpreters and rooms available.
You will recall that at the beginning of the fall, we had asked to meet two days a week. At that time, the answer was that it was not possible and we had to stick to one day a week.
We also cannot imagine that a miracle is going to happen and we will be meeting two or three days a week. We will have to cope with one day a week. However, a deadline of March 31 is definitely a bit short. I think Senator Harder will agree with me that that deadline does not leave us a lot of time for discussion.
Without waiting until June 23, is there a way to agree on May 15 or 30? I do want us to vote, but if we could reach an informal agreement on a date, it might facilitate things.
:
I don't want to put the clerk in the position of having to have a crystal ball, but I would say this. I'll take the chair's prerogative to say that if we are in a scenario where we are denied, then I would ask the indulgence of this committee that we revisit an extension on the dates.
I think we're getting to a place where we understand where we need to be with this committee. We're doing really good work. Would that suffice, if we came to a place where...? Actually, the question is, in a parliamentarians' agreement, would it suffice that if we got to a place where that request was denied, at that time you would put that motion to have it extended?
Okay. You don't have to comment. You're not compelled to speak.
Senator Harder, go ahead.
If you don't succeed a couple of times, you have to try a third time.
How about this? It's an amendment adding, at the end of paragraph (a), the following: “provided that the joint clerks invite each individual organization listed on the analysts' work plan, dated May 11, 2022, who have not appeared before the committee to submit a brief to the committee for its consideration, with briefs encouraged to be provided to the joint clerks within one month. The joint clerks shall arrange for any briefs provided to be translated, circulated to the committee members and published on the committee's website.”
:
With all due respect to my Liberal colleague, she presupposes incorrectly. What we are trying to do.... I listened very carefully to Senator Harder's support with respect to his motion, and I heard him very clearly say this does not potentially close the door on hearing from further witnesses. That is an opinion not clearly stated within the motion itself.
I mean no disrespect to Senator Harder, but unless it's actually there and we vote and agree on it, we may not get consensus to call further witnesses. What this does.... I'm quite shocked that my colleague from the Liberal side would take exception to this, because what we're trying to do is expedite the process. We all agreed the list we had on our work plan was quite unmanageable in terms of where we are right now, almost a year into this process.
We're trying to expedite those witnesses who are not that contentious by allowing them to file their reports. We still have further academics on that work plan. Those academics, most surely, would have a prepared statement, or would be in a position to prepare a written statement.
This is all about efficiency. It's not about complicating things. It gives specific impact to Senator Harder's proposal, which we have yet to vote on.
:
I would just say that, in terms of being efficient, the most efficient thing we probably did was several months ago when we said we would take holus-bolus—I think that's probably the right expression—everything that was before the Rouleau inquiry and incorporate it as evidence in this proceeding. That provides us with a tremendous level of efficiency.
I note that the vast majority, if not every single bit, of that evidence has been tested by cross-examination. As we saw, the was questioned by about nine different counsel when he appeared on that Friday a couple of weeks ago.
The utility of cross-examination, to me, was never more critical than when we had a witness appear here who had to be invited a second time and, thankfully, arrived. This is my personal perspective, but the testimony from the individual from GiveSendGo, in terms of his response to questioning, really demonstrated a lack of credibility in terms of what he was presenting. I think that's informative for all the members of the committee in terms of how we deliberate and what kinds of recommendations we develop.
The utility of cross-examination is actually quite vital. The only thing we're incorporating by reference has already been tested via cross-examination in that other forum before Justice Rouleau, so I think the point is well put by Ms. Bendayan.
:
I'll pass the chair over to Senator Boniface.
It's my perspective that there's a higher standard of care that we, as parliamentarians in this committee, have in navigating this review and in contemplating the public consultation process. I'm actually in support of taking this. I take Senator Harder at his word when he says that, if there is a bombshell or if there's a significant departure, that would require us to have greater scrutiny or the demand for a cross-examination on contentious briefings. It needs to be clear. Briefings, procedurally, are put on a footing with testimony as it relates to the analysts' notes.
I will be supporting this motion for those reasons. I take it in good faith that if we had continued down our work plan path, which we had agreed on at one time, we would have invariably seen those witnesses.
I'm going to test the goodwill. Should this motion pass, I would look to the Conservatives to support us on the main—although sometimes I've seen committees where that doesn't happen—in the spirit of trying to move this thing along. For those reasons, I'll be supporting the amendment to have the briefings be contemplated.
I will also go on the record to say that if there are material departures from the committee's consensus around the report, I would also support calling back a witness who has presented a briefing that requires a little bit more cross-examination and scrutiny.
I'll take the chair back and then recognize Senator Boniface.
:
Thank you very much, Chair.
We circulated a motion here a couple of days ago with respect to the documents we've been trying to get at as a committee. This particular motion is very similar to the one we had back in May. It took some of the concerns that were related by some committee members with respect to that and invited the law clerks to be part of it. Again, we have some timelines on it, as you'll see in the motion.
We've heard from a number of witnesses repeatedly, as well as Commissioner Rouleau, as well as the lawyers there, that it's unfortunate that we are somewhat operating in a vacuum without some of these documents. We need to pursue getting those documents to this committee, and then in turn giving those documents to the Public Order Emergency Commission as well.
:
Thanks very much, Chair.
I will not support this motion as drafted. I think it is somewhat convoluted in process and enjoins our law clerks to undertake work that is not in their area of specialization.
With respect to the sense that this would provide information to the Rouleau commission that it was unable to secure, I would simply like to put on the record the words of Commissioner Rouleau of November 25, on page 254 of the transcripts, lines 18 to 25, where he says the following:
Most importantly, I am satisfied that I now have the evidence that I need to make the factual findings and to answer the questions I have been mandated to ask, namely, why did the Federal Government declare the emergency, how did it use its powers, and were those actions appropriate? These are questions that, as I said at the outset, the public wants answered, and I am confident that I am now well-positioned to provide those answers.
I think we should pay attention to Justice Rouleau.
:
I'll take you at your word. I have no reason to believe you are not citing appropriate protocol.
We have a motion that has been duly put. Do we want to call the question?
We'll call the question.
Mr. Glen Motz: Before we get there, Chair, could I ask a question?
The Joint Chair (Mr. Matthew Green): Is it a procedural question?
Mr. Glen Motz: I'm looking for consensus. Is there any consensus that we want these documents? Do we want any documents? If we have to adjust the wording....
An hon. member: The Chair, I believe, has already called the vote.
The Joint Chair (Mr. Matthew Green): I did call the vote, procedurally. There was ample opportunity for intervention. I did call the vote.
We will now proceed with the vote.
(Motion negatived: nays 5; yeas 5 [See Minutes of Proceedings])
The Joint Chair (Mr. Matthew Green): Procedurally on a tie, the motion fails.
That concludes the motions that were presented. Unless there is any other business.... I would just note that we have a hard stop at 9:42 p.m.
With that being said, is it the committee's will that the committee be adjourned?
We are adjourned.