Public Safety Committee on Feb. 5th, 2024

[The Vice-Chair, Conservative, Doug Shipley]

Ms. O'Connell.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thanks.

Can I get a clarification on what motion Mr. Motz is moving? Is this the same as the other day, or is this a new one?

If so, can you point to which motion it is? There were, like, six motions tabled.

[The Vice-Chair, Conservative, Doug Shipley]

The clerk is indicating to me that it's the notice of motion from Mr. Motz dated Tuesday, January 30, the 1.1 Emergencies Act motion.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Is it the same one that Mr. Motz moved at the last meeting?

[The Vice-Chair, Conservative, Doug Shipley]

No, it is a different motion.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Okay. That's what I wanted to clarify.

Thank you.

[The Vice-Chair, Conservative, Doug Shipley]

Go ahead, Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Chair.

As I was saying, maybe the third time is the charm. Canadians need to understand and deserve to understand a summary of the decision, at least for today: what the decision was and how the Mosley decision impacts the government.

As we know, on January 23 of this year, the Federal Court of Canada released its historic decision from the judicial review of the Trudeau government's invocation of the Emergencies Act and the regulations made under it in response to the 2022 “freedom convoy”.

We all know that the Emergencies Act is extraordinary legislation that upends our normal constitutional order and grants sweeping powers to the Prime Minister and cabinet, including the power to create new criminal laws at the stroke of a pen. The Emergencies Act had never been invoked before February 14, 2022, and its use against mostly non-violent protesters concerned about the federal COVID-19 policies and mandates was disturbing and is disturbing.

Many Canadians, myself included, believed all along that the decision was illegal. We believed that the high threshold to invoke the act, which is a tool of last resort, was not met. We believed that the new criminal laws created by cabinet under this act, which prohibited attending convoy protests and even froze bank accounts without reason to suspect a crime had been committed, were unconstitutional.

Justice Mosley found that the high threshold to invoke the act was not met, because there was no national emergency and there was no threat to the security of Canada as defined by the legislation. The regulations violated the charter rights and freedoms of expression and security against unreasonable search and seizure, and those limits were not justified.

I'll go through a few of the points that Justice Mosley spoke about. The bottom line is that his opinion, his decision was that cabinet was not owed extraordinary deference when interpreting the act. One of the more galling claims by the government was that cabinet is owed near total deference when it comes to anything to do with an emergency. Justice Mosley rejected the government's proposition, finding that, while cabinet is owed deference because it needs to respond to fluid situations quickly, there is no untrammelled discretion, and cabinet is nonetheless constrained by the objective thresholds written into the statute.

Second, there was no national emergency within the meaning of the act. To invoke the act, there must be a national emergency. If the effects of the emergency do not extend to the whole of Canada, the area to which they do extend must be specified. The Trudeau government claimed that the emergency existed throughout Canada. Justice Mosley called this “an overstatement” and found that the provinces were able to deal with the situation using existing laws such as the Criminal Code.

In paragraph 248 of his decision, Justice Mosley says, “the Proclamation stated that it 'exists throughout Canada'. This was, in my view, an overstatement of the situation known to the Government at that time.” He also says that “the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.”

He goes on to talk about the Emergencies Act as a tool of last resort. Justice Mosley affirmed the Federal Court decision that the Emergencies Act is a tool of last resort. In paragraph 253 of his decision, he states:

Due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal.... And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.

The next area that he talks about is that there were no “threats to the security of Canada” within the meaning of the Emergencies Act. Justice Mosley found that there was no threat to the security of Canada within the meaning of the act. The act says those words have the same meaning as in the CSIS Act, which includes the threat of “serious violence against persons or property”. Justice Mosley noted that the head of CSIS did not believe that definition was met. The only specific example of threats of serious violence provided was about weapons uncovered at Coutts, but that situation had already been dealt with by the RCMP using the Criminal Code before any of the extraordinary regulations were created.

Justice Mosley moves on to the economic harm. He suggests that the economic harm was not part of the threshold to invoke the act. The government claimed during the Rouleau commission, during the Federal Court hearings and in press conferences following their loss that a threat to the security of Canada can include economic harm, like damage to supply chains. Justice Mosley found that the harm being caused to Canada's economy, trade and commerce, although concerning, did not constitute threats or the use of serious violence to persons or property, as required by the CSIS Act's definition.

He goes on to say, in paragraph 296 of his decision:

the test for declaring a public order emergency under the EA requires that each element be satisfied including the definition imported from the CSIS Act. The harm being caused to Canada's economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property.

Justice Mosley goes on to talk about the attendance and the issues that are illegal not only by the act but also by the Constitution. Banning mere attendance at protests violates the freedom of expression under the charter. Justice Mosley suggested that the regulations limited the right to freedom of expression guaranteed by paragraph 2(b) of the charter by banning anyone attending an assembly “that may reasonably be expected to lead to a breach of the peace”, rather than simply prohibiting conduct like blockades and excessive honking.

The violation of expression, Justice Mosley found, was not a reasonable limit. Justice Mosley ruled that the measures that infringed upon paragraph 2(b) could not be upheld under section 1 of the charter—

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I have a point of order, Mr. Chair.

[The Vice-Chair, Conservative, Doug Shipley]

Mr. Motz, wait just one moment, please.

Ms. Michaud, you have a point of order.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Mr. Motz seems to want to read the entire text of the judge's decision. At our last meeting, he didn't give his colleagues an opportunity to speak to his motion. I don't know if he intends to do the same thing today. I guess we won't have time to ask the witnesses questions.

I'm wondering if he can tell the committee how long he intends to speak on this. We must not waste the witness' time. They made the effort to come here to give us their comments on Bill C‑26.

If not, I will move that we vote on Mr. Motz's motion so that we can get back to studying the bill. That said, I don't know if he agrees with my proposal.

[The Vice-Chair, Conservative, Doug Shipley]

Thank you for that point of order.

I'll ask Mr. Motz.

Mr. Motz, do you have any idea how much longer you will be?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I will probably be five to eight minutes at the most.

[The Vice-Chair, Conservative, Doug Shipley]

Okay, we'll let you continue.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Chair.

[The Vice-Chair, Conservative, Doug Shipley]

Yes, Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

On a point of order, I think the way this committee has dealt with issues in the past is to have discussions off-line and come back to committee. I have amendments I'd like to offer to the motion, possibly. I think this is something we could have a full committee meeting on.

I am conscious of the fact that we have costs that have gone to the Canadian taxpayer and witnesses who are offering important testimony on a bill that is vitally important and that has languished now for almost two years. It is, I believe, our responsibility to question the witnesses. I would ask if Mr. Motz would just suspend his discussions so that we can have some talks off-line and question the witnesses, which was really the intent of this meeting today.

I think we could probably come to a consensus in the coming days, prior to the next meeting.

[The Vice-Chair, Conservative, Doug Shipley]

Mr. Julian, thank you very much for that.

Unfortunately, Mr. Motz does have the floor. I will reiterate that Mr. McKinnon did bring up a nice concession earlier that was not agreed to.

Mr. Motz, I can't direct you in this, but if you could wrap it up within five minutes or so, it would be nice to get back to the witnesses. It's up to you, and the floor is yours.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you very much.

To Mr. Julian's point, I thought I had a gentleman's agreement with the committee the last time that was proposed, and that certainly got tossed. I will finish within five to seven minutes, Chair, and thank you.

As I said, the violation of the freedom of expression was not a “reasonable” limit, as Justice Mosley ruled. Those measures infringing on paragraph 2(b) could not be upheld under section 1 of the charter, which allows for “reasonable limits...as can be demonstrably justified in a free and democratic society.”

He found that the measures were “not minimally impairing” in two ways. First, they were applied throughout Canada when they could have been limited to Ontario, and possibly Alberta. Second, there were less-impairing alternatives available that the government was constitutionally required to select over the measures they chose.

He got into the freezing of bank accounts, and he ruled that it violated the right to be free of unreasonable search and seizure. Justice Mosley also ruled that the measures ordering banks to disclose banking information of persons designated by the RCMP and freezing their accounts violated the right to be secure against unreasonable searches and seizures under section 8 of the charter.

The searches of bank records were not reasonable because they required banks to inform the RCMP if they had any reason to believe someone was materially assisting the protest, when a search normally requires that police prove to a third party on an objective standard, like reasonable suspicion or reasonable grounds to believe, that a crime had been committed before the search takes place.

In paragraph 337 of his decision, Justice Mosley says, “The absence of any objective standard was confirmed by Superintendent Beaudoin, who...acknowledged in cross-examination that the RCMP did not apply a standard of either reasonable grounds or a standard of reasonable suspicion, and all they required was 'bare belief'.” In paragraph 341, Justice Mosley goes on, “I find that the failure to require that some objective standard be satisfied before the accounts were frozen breached s. 8” of the charter.

Lastly, I would note in a brief overview that the search and seizure violation could not be justified under section 1 of the charter either. Justice Mosley found that there was no threat to the security of Canada within the meaning of the act. The act says those words have the same meaning as in the CSIS Act, which includes the threat of “serious violence against persons or property”. Justice Mosley noted that the head of CSIS did not believe that the definition was met. The only specific example of threats of serious violence, as I said previously, was provided through weapons uncovered at Coutts, but that situation was already dealt with by the RCMP using the Criminal Code before any of the extraordinary measures were created.

I wrap up by saying this, Chair. I think it's important that Canadians recognize that this government—although many Canadians felt the same way—had extended beyond lawful authority. They can't change the law to suit their own purpose that's convenient for them. Finally, now a Federal Court has ruled that they did, in fact, extend beyond the confines of the law and they did, in fact, breach the charter.

I think it behooves this committee to look at this issue or come to some agreement on how it would be best dealt with, moving forward.

With that, Chair, I will cede the floor to the next speaker.

[The Vice-Chair, Conservative, Doug Shipley]

Thank you, Mr. Motz.

I have Ms. O'Connell next on the speakers list.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Mr. Chair.

I move that we adjourn debate.

[The Vice-Chair, Conservative, Doug Shipley]

Okay.

Would you like a recorded division, Ms. O'Connell?

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Yes.

[The Vice-Chair, Conservative, Doug Shipley]

I would ask the clerk to take a recorded division, please.

(Motion agreed to: yeas 6; nays 4)

We will move on and get back to Bill C-26.

We'll start with six minutes for questions.

I believe Mr. McKinnon is first.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Mr. Chair.

I would like to welcome our witnesses here. Thank you for being here, and for all the time and effort you have put into this bill so far.

I'm going to start with Mr. Traoré and Ms. Proctor. You indicated that this legislation should align with international standards. Is there a specific international standard that you can specify?