Evidence of meeting #21 for Declaration of Emergency in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was definition.
A video is available from Parliament.
8:05 p.m.
Conservative
8:05 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes. I tend to agree.
In response also to your colleague's question, I would say that even at Coutts, after those arrests, the blockade self-policed and took itself down. That's something that I think is quite important to bear in mind, because I agree with Professor West that we shouldn't go around branding people and whole groups as terrorists.
8:05 p.m.
NDP
The Joint Chair NDP Matthew Green
We will now move over to Mr. Virani.
Mr. Virani, the floor is yours for four minutes.
8:05 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
Thank you very much.
Professor Roach, with respect to the intelligence components, you've been asked a number of questions about this. I'm going to return to something you wrote about in one of your articles dated February 14 of this past year. It reads as follows:
Canada has been slow to recognize violent far right extremism despite incidents of far right terrorism including a 2014 shooting rampage in which a man who wanted to overthrow the government killed three RCMP officers; a 2017 killing of five men at a Quebec City mosque by a man motivated by Donald Trump, David Duke, and anti-Muslim sentiment; a 2020 attempt by a military reservist to confront Prime Minister Justice Trudeau, who the reservist feared was imposing a communist dictatorship in Canada; and a 2021 killing of four members of a Muslim family by a man wearing swastika.
How do we get at the source of that kind of bias in terms of our intelligence apparatus, which is not adequately addressing or evaluating the threat posed by far-right extremism? Can we do that through recommendations at this committee? What would you propose that we recommend?
8:10 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
I think we need greater ministerial oversight of both CSIS and the RCMP to see whether they are devoting enough resources and have the adequate training to address these. So it would be ministerial oversight, as well as executive oversight review and the National Security and Intelligence Committee of Parliamentarians.
8:10 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
In a different article, you started by citing Professor Dworkin, which really made me feel like I was back at the faculty of law. You talked about equality and notions of equality in terms of how it impacts the legitimacy of policing. As someone who lived through parts of the blockade here in Ottawa, I think this is really critical in terms of how people started to treat the police, no longer respecting them in the same way, which I think is problematic from a societal perspective.
You wrote the following:
Many criticized the police for accepting the “freedom” occupation and blockade for over three weeks, when they take more aggressive stances against Indigenous land blockades and protests by racialized people.... This compounded the equality problem if a lack of adequate intelligence about the danger of far-right violent extremists using the occupation contributed to the policing failure that allowed the Ottawa occupation to last three weeks.
Ignoring equality creates a risk that both the police and the law will be viewed as illegitimate.
I also found interesting what you talked about a bit later in the same passage with regard to the fact that some criticized the police for talking to the protesters. You said that talking isn't necessarily the problem; it's the fact that if there's going to be talking to the protesters, it needs to be done equally, whether the protesters are the Ottawa occupiers or whether the protesters are an indigenous group or a Black Lives Matter group.
Can you unpack that a little bit for us? Going forward, where do you see policing going in terms of correcting this sort of double standard, if I can use that term?
8:10 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
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.
8:10 p.m.
NDP
The Joint Chair NDP Matthew Green
That does conclude the round, with a little bit of opportunity to conclude the thought.
We will now go on to Mr. Fortin for four minutes.
8:10 p.m.
Bloc
The Joint Chair Bloc Rhéal Fortin
Thank you, Mr. Chair.
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?
8:15 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Well, I think if it's determined that the use was not justified, then it's up to this committee to make that clear to Parliament. Parliament has all its remedies available to it. I think, most importantly, it's up to the citizens of Canada to decide whether a government that unjustifiably invokes the Emergencies Act should continue to govern.
8:15 p.m.
Bloc
The Joint Chair Bloc Rhéal Fortin
Does that have legal consequences or consequences for political and international balance of things?
Are there consequences other than voters' intention to re‑elect or not re‑elect the sitting government?
8:15 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
No. Good old democracy is really the cure for that.
8:15 p.m.
Bloc
The Joint Chair Bloc Rhéal Fortin
Thank you.
Professor Roach, do you share that opinion?
Do you agree that there are no consequences for invoking the Emergency Measures Act when it was not justified?
December 8th, 2022 / 8:15 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
I agree that it's up to Parliament, but I would add that you are one of at least three accountability mechanisms that are ongoing, including the Rouleau commission and the ongoing challenge in the Federal Court.
One of the things I saw after the G20—where more than 1,000 people were arrested—was that this multiplicity of accountability mechanisms actually seemed to have perversely diluted accountability. Sometimes you can have too much of a good thing. Although I think it's important that we have these multiple accountability mechanisms—and certainly I wouldn't advise to take them all away—I think Canadians are going to have to digest the verdicts from at least three of these accountability bodies, and this joint committee is one of the three.
8:15 p.m.
NDP
The Joint Chair NDP Matthew Green
That does conclude the round. I'll pass the chair over to Senator Boniface so I can proceed with four minutes.
On the topic of accountability, in an article entitled “The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights”, you stated that not having a requirement to examine the actions of the province in which the emergency occurred is “an omission”. Is it your recommendation to this committee that we contemplate providing a mechanism that would force the issue of provincial accountability in review?
8:15 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes. I think that as far as you can go is to provide for a formal request to the affected province to appoint a parallel inquiry. Obviously that happened with the mass casualty commission. That has not happened in this case.
8:15 p.m.
NDP
The Joint Chair NDP Matthew Green
It's certainly an important consideration. I know that obviously section 33 is invoked all the time in terms of provincial sovereignty, but in your remarks, Professor, you mentioned, if I recall, federal pre-emption. Can you expand on that and maybe provide some context to that statement?
8:15 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes. On matters of national security, there is a potential for federal pre-emption and also under “Peace, Order and good Government” and the emergency part of our federalism Constitution. Just as the Security Offences Act can make both the RCMP and the Attorney General take the lead, I think that this may be an area where Parliament could legislate a federal pre-emption.
I can't guarantee that provinces would not challenge that as an infringement on their constitutional duty under subsection 92(14) for the administration of criminal justice, but I think that's a possibility.
8:20 p.m.
NDP
The Joint Chair NDP Matthew Green
In a practical sense, if that happened and was legislated federally and the provinces refused to act or rejected this assertion, then, of course, in this very wild time of Alberta First and Saskatchewan and Manitoba and all the others who want to break away from the country, if we were contemplating that, at least the onus would be on them. Would you agree?
8:20 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes, and the Security Offences Act, which involves federal pre-emption, has been around since the CSIS Act and I'm not aware of any challenge to it.
8:20 p.m.
NDP
The Joint Chair NDP Matthew Green
On the topic of ideologically motivated violent extremists, do you share my alarm that there were reports of high-ranking military, including Joint Task Force 2, members of the Prime Minister's security detail at one point, former and current serving military people in the armed forces, as well as connections with the police? Were you concerned with the assessment that there was an infiltration of that element within the convoy?
8:20 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
I was concerned to an extent. I'm more concerned about the weapons and the explosives found at Coutts, but certainly that is part of intelligence looking at the group.
I also worry a little bit, though, that we have the police, who seem to have more freedom to look at open-source material and social media material than CSIS does. To me, that again raises whether the police can actually distinguish or have the necessary intelligence expertise.
8:20 p.m.
NDP
The Joint Chair NDP Matthew Green
Professor West, on the previous comment, could you reflect on the infiltration of high-ranking armed services and police, people who had insight into logistics and tactical procedures, who, we've heard in testimony, had never been seen before?
8:20 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
As a starting point, I don't think there's anything wrong with retired service members and military members and police officers being part of a protest movement or helping lead that protest movement. The concerning part of it is if those members also have violent extremism goals. That's what concerns me.
