Declaration of Emergency Committee on March 24th, 2022

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Good evening, everyone.

Since we have quorum, we can begin our work.

Welcome and thank you for being here.

If my memory serves me correctly, Mr. Clerk, at the end of the last meeting, we were passing routine motions.

Would anyone like to move a motion?

Mr. Motz, I think that you wanted to move a motion. Is that right?

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

Yes, Chair. Thank you.

Mr. Brock and I have a number of motions. I don't know what order you want to bring them in. We can talk about them in order or we can go back and forth.

I'll just give you an overview of the ones that we have in our—

[Rachel Bendayan, Liberal, Outremont, QC]

I have a point of order, Mr. Chair.

I think that we must move one motion at a time.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Yes, of course. However, I understood that Mr. Motz was wondering which motion he should move first.

I don't have a preference. It's up to you, Mr. Motz.

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

All right. Thank you.

I will go to the first motion. It was presented last week. Some of the other ones we have are amendments to the motions that our friends across the way presented.

The very first motion that we can talk about would be the one introduced last Monday on the legal counsel. I will present a revised version of that and can speak to it.

Chair, if there's some hesitance about the lawyer motion based on not knowing what we're going to do or how we're going to do it, we also have a motion on the scope of what we should cover and what our report should look like.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

I think that you should read the motion first. You can then elaborate on it.

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

Okay. Whenever you're ready, Chair.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

I think that everyone has a copy of the motion. I'll let you read it, Mr. Motz.

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

Thank you, Mr. Chair.

The motion is, “That, in light of the unprecedented and complex issues associated with the declaration of a public order emergency, and with a view to discharging adequately its serious responsibilities, the committee requires the assistance of legal expertise, independent of the Government of Canada, to be provided by a lawyer who is well versed in emergencies law and who is thoroughly familiar with national security and intelligence concerns, and, therefore, retains the services of a lawyer who satisfies these criteria, to be chosen by the committee, as legal counsel on such terms as agreed by the committee.”

Mr. Chair, I can speak to it after your—

[The Joint Co-Chair, Bloc, Rhéal Fortin]

I believe that Ms. Bendayan had a proposed amendment. Is that right?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Chair, I'll move something, before Ms. Bendayan.

Our position, meaning the position held by me and my colleagues Ms. Bendayan and Mr. Naqvi, on the issue concerning—

I'll continue in English.

The general proposition for the three Liberal members on whose behalf I'm speaking is that the basis of Mr. Motz's motion—and I tracked this language because it's in both the original and the second version—requires the assistance of legal expertise “independent of the Government of Canada”.

With respect to this motion, it seems like an implicit or veiled attack on the impartiality of the civil servants who serve this country. It is our view that rather than embarking upon the retainer for independent legal counsel and the process that that would undertake, and eating up the time that this committee could otherwise better spend on actually studying the issues that we've been charged to study pursuant to the House motion, and rather than undertaking the expense of such a retainer, we use the good offices of the civil servants who are employed to do exactly that, of which there are two options. There are Department of Justice counsel and there are also counsel that serve the Parliament of Canada, and there I'm referring to the law clerk to the House of Commons and the law clerk to the Senate.

It is our general proposition that this motion is not suitable, and we would be voting in favour of its defeat in its entirety.

Thank you.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Virani.

Mr. Green and Mr. White would like to speak. However, I told Mr. Motz that I would let him talk about his motion first, which I didn't do. My mistake.

Mr. Motz, I'll give you the floor to speak about your motion. I'll then give the floor to Mr. Green and Mr. White.

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

Mr. Chair, while I appreciate the comments from Mr. Virani, I think it's important to recognize that we all know that the declaration of the Emergencies Act by the Governor in Council was unprecedented in Canadian legal and national security history. The use of the Emergencies Act, the orders and the regulations established in the act and their enforcement are all subject to various legal tests and thresholds that previously have never been applied or tested in any way.

We know that the advice provided by the Department of Justice and supported by intelligence and analysis from Canada's national security and intelligence community formed the basis for the cabinet's decision to invoke the act and what measures were necessary.

However, I'm of the opinion that the government has not clearly articulated the legal basis for these decisions or how the evolving facts or threat picture supported the imposition of such extraordinary measures. In short, it's possible that the strengths, or weaknesses, of the government's legal positions have not yet been tested or assessed by legal experts, except those within the Department of Justice.

Now, understanding this particular threat and these legal thresholds, it is critical, in my opinion, to this committee's task in reviewing the powers, the duties and functions exercised pursuant to the declaration and as legislated.... Unfortunately, the development of and reliance upon confidential legal opinions based on potentially classified information known only to Department of Justice lawyers and national security officials and agencies they advise has proven problematic in recent years, and a fact highlighted even in the Federal Court of Canada.

Therefore, I believe it's imperative that this committee benefit from outside, independent legal advice and analysis for us to be able to do a fulsome and complete review of the evidence that will be presented to us, and to advise us, because this is a major undertaking that many of us around this table may not have the experience or the expertise necessary to maybe seek certain witnesses or to ask certain questions. I think it would be important for us to have someone who meets the threshold of the skills described in the motion to be able to give us, and Canadians, the most transparent and accountable view of the invocation of this act.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Motz.

Mr. Green, you have the floor.

[The Joint Chair, NDP, Matthew Green]

Thank you, Mr. Chair.

Having read the revised motion and certainly in keeping with the spirit of having a diversity of opinions around the table, I would put to this committee that I am open to having at our disposal outside legal counsel. I would suggest that we may find common ground by not limiting it to or having it be the only legal counsel provided to this committee, notwithstanding the fact that we ought to have ample time to invite the appropriate witnesses and guests who would be able to provide expert testimony at our request.

In keeping with the spirit of having a balanced approach to the legal interpretations, I certainly don't want to take anything away from our existing legal counsel within the public service, but would be open to the pursuit of outside legal expertise, noting that the process will likely take some time and some vigorous discussion to come to a consensus about who that person might be, and could veer us off of the material course of what we're pursuing.

That would be my caution in the selection process of that. I note that in our routine motions, we no longer have subcommittees. We have basically agreed that we're going to keep everything as a committee of the whole. I wouldn't want this process to be our first major roadblock in order to reach a work plan consensus.

If it is the intention and the spirit of the mover to bring outside legal counsel in addition to existing legal counsel that we have, many names could be put forward. Everybody around the table would have the opportunity to seek adequate subject matter expertise, and then as a committee we would come to a consensus.

The last point I would make on this is that if as a committee we deem that the process became an obstruction in and of itself, we could at a potential later date decide to abandon that process for the sake of the committee.

However, at this moment I would support the mover's intention of having outside legal counsel to add to the diversity of expertise around the table.

Thank you.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Green.

Mr. Harder, you have the floor.

[Peter Harder, Senator, Ontario, PSG]

Thank you very much, Chair.

I believe a discussion—

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Sorry, Mr. Harder, but I forgot that I was supposed to give the floor to Mr. White.

[Peter Harder]

Was Mr. White supposed to speak before me?

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Yes. That was my mistake and I apologize.

Mr. White, you have the floor.

[Vernon White, Senator, Ontario, CSG]

That's fine, Mr. Chair.

Thank you very much. I want to thank my newfound friend, Mr. Green. My perspective is that I don't want us not to consider bringing in outside legal counsel. In fact, I believe we may need that.

I would like first to see the scope of where we're going. A friend of mine once told me to never ask a lawyer to work for you until you tell him what work you want him to do, because that could cost us a lot.

I would like to see us come to an agreement that outside legal counsel may be appropriate, but I don't think we should hire outside legal counsel until we actually see what the scope of the work is going to be. That will allow us to get that out of the way.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you.

You now have the floor, Mr. Harder.

[Peter Harder]

I'll be brief, because it's very much in the spirit of Senator White.

I think this discussion is premature. I am open to the notion of outside counsel should we in the course of our work identify that as a need.

Let's deal with our scope, get off and running and start some work. If we find that we need a particular expertise that can be found in outside counsel, let's do that at that time. Outside counsel if necessary, but not necessarily outside counsel.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Harder.

Mr. Carignan, you have the floor.

[Claude Carignan, Senator, Québec (Mille Isles), C]

Thank you, Mr. Chair.

I also think that outside counsel may be needed.

Our role and our current work are similar to the role and work of a commission of inquiry. However, in the case of commissions of inquiry, counsel always provides advice to the commissioners in the course of their work.

I'm not sure that we should wait to hire counsel. If we wait until we need counsel, there may be a waiting period while counsel reviews all the evidence and the facts. If we hire counsel now, they can start keeping track of our work. When questions come up spontaneously, it will be easier to obtain legal advice. This will help us avoid delays. If we wait until we have an issue before we ask counsel a question, we may need to wait a week or two for an answer. This could push back our work schedule or cause some delays.

I believe that counsel should be hired now.