Declaration of Emergency Committee on March 24th, 2022

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

Mr. Motz, do you agree with this friendly amendment?

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

I agree with that friendly amendment.

Thank you.

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

The motion will be amended in accordance with the amendment suggested by Mr. Green.

Mr. Harder, you have the floor.

[Peter Harder]

Thank you, Mr. Chair.

I have a problem with the early bullets of this motion. I would like to speak to that.

We know that under the act there will be an inquiry. The scope of the inquiry is very broad and defined to look at many of the circumstances of certainly the first three bullets, as well as the others.

My reading of the act is that this parliamentary committee has as its focus the implementation and actions taken under the Emergencies Act, not a review of the legitimacy of either the government's invocation of the act or Parliament's vote on the act.

I'm reasonably comfortable with the last three items, but I think the first three intrude on the jurisdiction of the inquiry. I think our work would be helped if the government were to announce the inquiry soon, so that the scope of its work could be clearly defined and our work could be complementary to that.

I'm afraid that we are tilling more than our mandate with this motion.

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

Thank you, Mr. Harder.

The clerk is drawing my attention to a rookie mistake that I made. I really am a bad chair.

I understood that Mr. Motz agreed with the friendly amendment, but I forgot to ask whether anyone else objected to Mr. Motz's motion being amended to reflect Mr. Green's suggestion.

Does anyone object?

Mr. Virani, the floor is yours.

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

Before we decide whether Mr. Green's amendment is sound, I think that there should be more debate on the entire motion.

[The Joint Chair, NDP, Matthew Green]

I have a point of order.

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

One moment, Mr. Green.

I gather that we're debating the motion as amended by the amendment. Is that right?

[The Joint Clerk of the Committee, Mr. Paul Cardegna]

I must check this, since I was distracted. I may have made a mistake.

I understood that Mr. Motz agreed with the amendment, but I don't know whether all the committee members agreed with it. If the committee didn't make a decision on the amendment, it means that the debate now concerns the amendment until the committee makes a decision. That's my understanding of the situation. If I'm wrong, I'm sorry.

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

Do we agree that the debate now concerns Mr. Green's amendment?

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

Is it my turn to speak, Mr. Chair?

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

Mr. Harder had the floor, but I think that he's finished.

Thank you, Mr. Harder.

Mr. Virani, you have the floor.

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

Okay.

Generally speaking, my two Liberal colleagues and I don't agree with Mr. Green's amendment for several reasons.

Continuing in the vein of what Senator Harder was referencing, it is really important that the committee draw reference to and that the record reflect what subsections 62(1) and 63(1) say in the statute.

Subsection 62(1), which relates to us, the parliamentary review committee, reads:

The exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed by a committee of both Houses of Parliament designated or established for that purpose.

That is this committee with representatives of the Senate and members of Parliament. What we were meant to be looking at is “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”

In contrast—and this came up in the debate we were having about 10 minutes ago—there is also an inquiry contemplated, which has to occur. That inquiry is entrenched in subsection 63(1) of the same statute, which reads:

The Governor in Council shall, within sixty days after the expiration or revocation of a declaration of emergency, cause an inquiry to be held—

Here is the important part:

—into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.

The key point here is that the inquiry has a retrospective and a prospective element, whereas the review committee does not have a retrospective element whatsoever vis-à-vis what happened prior to the invocation of the declaration. It speaks simply to the exercise of powers and performances of duties under that declaration.

Senator Harder's point is very well taken, because the first three bullets of what Mr. Motz is proposing are retrospective in their nature and, clearly, outside the scope of subsection 62(1). It's open for debate whether the remaining three, these being the choice and necessity of regulations, the constitutionality of those regulations and the use made of those regulations, fit squarely within subsection 62(1). That is my first general point.

The second point I would have is that it may be premature to be looking at this without the advice and input of those people experienced in interpreting these types of provisions, so that people aren't taking my word for it or the word of any of my colleagues. By “those people”, I mean perhaps hearing from the law clerk of the House of Commons or the law clerk of the Senate to help us with scoping the study before we take a preliminary decision on a motion without having the benefit of their interpretation of subsections 62(1) and 63(1).

I would also say, as a further submission, that when you look at the context of the motion—now I'm referring to the motion that was passed in the House of Commons, on which six of us voted—it reads in paragraph (a), the very first paragraph of that motion:

pursuant to subsection 62(1) of the Emergencies Act—

That's the section I just read.

—a special joint committee of the Senate and the House of Commons be appointed to review the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency....

Again, it is not retrospective in nature. It is contemporary, what happened when the invocation was declared.

I'll leave it at that, Mr. Chair.

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

Thank you, Mr. Virani.

Ms. Bendayan is next. After that, Mr. Brock, Mr. Motz and Senator Carignan can speak.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you, Mr. Chair, but I'll pass. I'll speak after my colleagues.

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

Mr. Brock, it's your turn.

[Larry Brock, Conservative, Brantford—Brant, ON]

Mr. Chair, this is not an exercise of judicial interpretation of a statute. That is not our responsibility. While I have the utmost respect for my colleague, Mr. Virani, I respectfully disagree with his literal interpretation of the language of this particular statute.

An argument could be made.... I do not dismiss his argument, but our mandate is to provide clarity to Canadians. It's not necessarily just taking a look at a snapshot in time from the date of invocation and reviewing all the circumstances prospectively forward. In my opinion, sir, with all due respect, it would be a dereliction of our responsibility if we did not take a look at all of the circumstances that created the emergency in the first place.

In our view, no one can reasonably be expected to review the declaration without looking at the reasons for the declaration. If the emergency proclamation was unlawful, it follows that the exercise of powers would be equally unlawful.

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

Thank you, Mr. Brock.

Mr. Motz, you have the floor.

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

Chair, I won't add much more to the eloquence of my friend, but I would agree.

As I read this, once I realized I was going to be on the committee, to me, the exercise of powers is exactly.... In order to understand how those powers were exercised, you have to understand the circumstances that led them to believe they needed to be exercised in the first place.

Canadians—and you have to look at this through the eye of a Canadian who is concerned and watching what we do on this. No one can reasonably be expected to review this declaration and whether it was appropriate or not without looking at the reason behind the invocation in the first place.

If the emergencies proclamation was unlawful, it follows then that the invocation itself, or the exercise of powers, would be equally unlawful, if that's what the conclusion is.

As Mr. Brock said, it would certainly be reasonable for us to have a full view of those who made the decision in the first place to invocate this Emergencies Act. How can we possibly say whether it was appropriate or not without having the same set of circumstances that they looked at to make their decision that we also look at to make our decision?

I would respectfully have to disagree with Mr. Virani and suggest that there might be other bullet points, if we will, about this motion that we can add to this to give us a fulsome....

If you look at it from the perspective of those of us who have been in law enforcement, when you look at an arrest, the lawfulness of that arrest is looked at in its totality, the reasonableness of it. If you're doing a search, was it a warrantless search and was that warrantless search reasonable? You have to look at all the factors that led to that conclusion.

Frankly, I can't make a fully informed decision on whether this was appropriate or not without seeing all the facts that everybody else at that time used to make that decision.

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

Thank you, Mr. Motz.

Senator Carignan, it's your turn.

[Claude Carignan]

I agree with my colleague.

The committee's mandate is to review the exercise of powers and performance of duties and functions pursuant to the declaration. We must assess whether this exercise was reasonable. For example, we must look at what was seized and at how and why it was seized. We must determine whether we cast a wide enough net or whether the net was too wide. However, in order to assess whether these actions were legal or reasonable, we need information on what led to the declaration of emergency. We can't assess this in abstracto, starting on a certain date and ending on another date, without knowing the background of the decision, the issues involved and the facts that justified the emergency declaration. Otherwise, we'll miss part of the story. When part of the story is missing, we may get things wrong.

It's much better to look at the background and circumstances that led to the emergency declaration. We can then assess the reasonableness of the subsequent actions.

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

Thank you, Senator Carignan.

Mr. Green, you have the floor.

[The Joint Chair, NDP, Matthew Green]

Mr. Chair, I want to reflect on this as somebody who, in the House, voted to support the Emergencies Act and is responsible for reporting back to my community about the rationale and the basis of the act. From my perspective, I made a decision based on information that was only made available to the public, not having the privilege of the inside information that the government had to come to this conclusion.

I look at the work plan that's been presented before us and I've heard the comments of Senator Harder. I can only perhaps find agreement with point number three. I would not claim to be a legal expert, but I feel that exploring the legality of the invocation would be to the benefit of the public.

I would state that this legislation as drafted and contemplated in its time was left ambiguous. I would suggest that there's probably case law—although I'm not a lawyer—that would suggest that when legislation is unnecessarily ambiguous, liberal interpretations ought to be had on the legislation to provide fairness for the people who are pursuing it.

In the comments of my friend Mr. Virani, I feel that he was generous in his over-prescription of how he interpreted what is before us, which on its face looks fairly ambiguous. From that perspective, on points one and two, I can't imagine a scenario where we could understand the actions being necessary or proportionate if we don't examine the actions leading up to it.

On the rationale, I would put to this committee that at its height, this country was experiencing a crisis of confidence in our democracy, government and public safety frameworks. There was a crisis of confidence in local policing, provincial policing and national policing. They were seen to be compromised in the events leading up to the invocation of this act in a very public way, livestreamed for the public to see.

Regardless of where people are on this, in terms of whether they supported it or they didn't, whether they were in support of the actions that took place or not, I believe that Canadians deserve to have a fulsome exploration of the topics at hand. I would caution this committee that the crisis is still a very clear and present danger. If we don't act with the kind of care and thoroughness—and by thoroughness, I mean not over-prescribing or unnecessarily narrowing the scope of our exploration of this topic—we will be revisiting this type of crisis in the very near future.

I can't state enough that in supporting this Emergencies Act, as a member of Parliament, I believed there was a national crisis. I don't think that crisis has gone away. I think that we're facing other crises around the world, but it doesn't take away from the fact that cynicism, lack of trust and erosion of faith in our democratic institutions are still very much topics at hand.

What I would put to this committee is that if we rush to defer our responsibility, recognizing that this legislation is not clear, then we risk a review process that is so overly legalistic that it lacks socio-political context for the average Canadian to fully understand and unpack what happened. What I mean is that there is heightened rhetoric and hysteria around what is and isn't democracy, freedom or the ability to lawfully assemble for the purpose of your democratic rights. With all of these topics, I think, as elected parliamentarians, it would be the only opportunity where we have a chance to contemplate these things in a way that isn't overly obscured by legal language in some kind of judicial review.

It's a unique opportunity. If we don't deal with it well, if it's perceived to be any kind of cover-up or to give credence to any kind of conspiracy, mark my words, we'll be back in this committee within a year and a half.

That's the care with which I hope this committee deals with the undertaking. I hope, and I would ask, that my colleagues around the table provide a liberal interpretation to legislation—

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

Small-l.

[The Joint Chair, NDP, Matthew Green]

—small-l, yes, very small—that is not clear, not prescriptive, and a place that gives us the opportunity here to continue to operate in the way in which we're operating.

Again, I don't know if the senator was in the room. Just to recap, I concede that we might not be the appropriate place to determine the legality of invoking the emergency act. I agree to that point. But on the first two points, it is absolutely contingent that we go to the preconditions and that we explore the failures of public safety frameworks. Ultimately, the decision to invoke a national emergency act requires the breakdown of previous levels of government and requires the inability to adequately deal with the matters at hand.

As we work through this work plan, again, I really implore members around this table to give this the breadth that it's going to need, to unpack in a public way and to provide socio-political commentary on something that goes beyond just the legalese of whether or not invoking the act was constitutionally sound. Quite frankly, when this was drafted, I don't think this situation was ever contemplated, so regardless of who's dealing with that in the judicial inquiry, I don't think they are going to be able to come up with an answer that meets the socio-political times of the moment. That's how fragile this is.

I know that I have taken up some time on this, but I need to underscore, as somebody who supported this thing, how important it is that I go back to my community and let them know that at this committee, we provided the full opportunity for a complete and thorough and careful analysis of what happened.