Declaration of Emergency Committee on Dec. 1st, 2022

[The Joint Chair, Hon. Gwen Boniface (Senator, Ontario, ISG)]

I call this meeting to order.

Welcome to meeting number 20 of the Special Joint Committee on the Declaration of Emergency, which was created pursuant to the order of the House of March 2, 2022, and of the Senate on March 3, 2022.

Today's meeting is taking place in a hybrid format pursuant to House and Senate rules. Should any technical challenges arise, please advise me, as we may need to suspend to ensure all members are able to participate.

For our first panel this evening, we are joined, from the Privy Council Office, by Jody Thomas, national security and intelligence adviser; Martin Green, assistant secretary to the cabinet, intelligence assessment; and Mike MacDonald, assistant secretary to the cabinet, security and intelligence. We are also joined by Marie-Hélène Chayer, executive director of the integrated terrorism assessment centre.

I understand that Ms. Thomas will lead with opening remarks.

Ms. Thomas, we welcome you. You have five minutes.

[Jody Thomas, National Security and Intelligence Advisor, Privy Council Office]

Thank you very much, Madam Chair. I'll make very short introductory remarks.

I am here with three colleagues who have been introduced, so I won't go through that with you.

I assumed the role of national security and intelligence adviser on January 11, 2022. It is a position designed to provide coordinated, non-partisan advice to the Prime Minister through the Clerk of the Privy Council. The role includes coordinating the national security and intelligence community and providing a challenge function, like all deputy secretaries do at PCO.

The National Security Intelligence Advisor oversees four secretariats: Security and Intelligence, Foreign and Defence Policy—

[The Joint Chair, Hon. Gwen Boniface]

Ms. Thomas, could you stop, please? I apologize. There's an interpretation issue.

[Jody Thomas]

It could be my French. I apologize.

[The Joint Chair, Hon. Gwen Boniface]

Pardon me, Ms. Thomas. Go ahead.

[Jody Thomas]

Thank you.

The other two secretariats are Intelligence Assessment and the new Emergency Management and COVID‑19 Recovery Secretariat.

The national security threat posed by the so-called “freedom convoy” was multi-faceted and complex, and we are learning more about it daily. The protests, the occupation of the nation's capital and the blockades of critical infrastructure presented unprecedented challenges for government.

Freedom of expression and peaceful assembly are fundamental rights and must be protected in any democracy; however, the government has a responsibility to ensure safety and security for Canadians.

I want to emphasize that it was the totality of the circumstances that led me and others to recommend invoking the Emergencies Act. It is important to note that these measures were temporary and in place from February 14 to 23. They were carefully tailored to ensure that they were reasonable, proportionate and, thankfully, short-lived.

Others have appeared in order to provide information and context with regard to the broader implications of the myriad factors that led to how the Emergencies Act was invoked and carried out. I'm here to speak about the role of the NSIA as a coordinating body within the federal intelligence community as well as an adviser to the federal government.

My colleagues and I look forward to your questions.

I will end there.

[The Joint Chair, Hon. Gwen Boniface]

Thank you very much.

We will begin our round of questions starting with Mr. Motz.

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

Thank you very much, Madam Chair.

Thank you to the witnesses for being here.

Ms. Thomas, I'll focus on you.

I appreciate your introduction on your role as the national security and intelligence adviser. You provide briefings, as you said, and advice to the Prime Minister through the PMO.

Would it be fair to suggest that an aspect of your responsibility during the “freedom convoy” was to provide the PMO, the Prime Minister and cabinet with briefings with full, frank and factual threat pictures? Would that be a fair assessment?

[Jody Thomas]

The information and the intelligence is provided through the PCO, not through the PMO, just as a clarification.

Yes, it is frank, open and transparent information.

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

Thank you.

Would you then agree with me that the Emergencies Act sets out the threshold upon which government must rely to lawfully invoke the Emergencies Act, namely, the definition in section 2 of the CSIS Act? I would suspect that you have a firm understanding of section 2, which defines what “threats to the security of Canada” means.

[Jody Thomas]

Yes, and thank you for the question.

This has been a subject of significant discussion. It certainly has come up in these hearings, and it came up at the inquiry last week.

Legal advice has been provided. I know that both the deputy minister of justice and the Minister of Justice have both been here. The government has a responsibility to take a broad look when assessing national security threats.

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

I want to get to that.

CSIS, the RCMP and the OPP have testified that there wasn't intelligence to support that a threat to the security of Canada existed, yet, as you've just stated now and you stated at the commission, you received some legal opinion that included a broader interpretation of the Emergencies Act than what the law states is the prescribed threshold.

Can you tell me who determined that this broader interpretation was required? That's the first part.

When was that interpretation asked for? Who wrote that interpretation? When was that interpretation received by you or others who presented it?

[Jody Thomas]

Thank you very much for the question.

The Department of Justice wrote the legal opinion. They write the legal opinions for government. The paragraph 2(c) question is significant. The interpretation of paragraph 2(c) and the Emergencies Act is that the national security description and the parameters are assigned the meaning per paragraph 2(c) of the CSIS Act, as opposed to derived directly from.

That means that there's not one person in this country who determines that something is a national security threat. We do not believe that the drafters of the Emergencies Act intended for the CSIS director to be the sole arbiter of national security threats to this country. It means, as an example, that there could be a policing situation—lawlessness on the streets, the police are overwhelmed and they cannot respond—but if there wasn't a very narrow paragraph 2(c) threat, then the Emergencies Act couldn't be applied.

We do not believe that this was the intention of the drafters.

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

I will interrupt you there, Ms. Thomas.

Actually, if you listen to the testimony of the person who drafted this, Perrin Beatty, he did say that they used section 2 specifically because of how carefully it was drafted and relied upon.

Would you say, for this broader interpretation that was relied upon, that you relied upon it in the advice you gave to cabinet? Was it clear to cabinet that this interpretation did not align with the letter of the law as included in the Emergencies Act?

[Jody Thomas]

Thank you for the question.

It did align with the letter of the law, as interpreted. Yes, cabinet was thoroughly briefed.

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

At this stage, I guess my question would be this: Why would you place any value on a legal opinion when—to me—the existing law is pretty clear on what you need?

Could it be that since the circumstances of the protest didn't really meet the threshold—as has been said already by the RCMP, the OPP and CSIS intelligence—it was conscripted to try to justify the government's invocation of the Emergencies Act?

[Jody Thomas]

I thank you very much for the question.

No, I don't agree with that.

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

Thank you very much.

[The Joint Chair, Hon. Gwen Boniface]

The five minutes are up. Thank you, Mr. Motz.

I'll move to Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

Welcome to all the panel members.

Thank you, Ms. Thomas, for being here.

I'm just going to continue the line of questioning where Mr. Motz left off.

You told the Public Order Emergency Commission that, “in terms of the Emergencies Act, the Governor-in-Council can consider more broadly than the intelligence collected by CSIS in determining a national security threat or situation or a public order emergency.” You were alluding to that just now in your comments, as well.

What did you meant by that? Can you take some time to explain that to us? Why is that important in the context of a public order emergency?

[Jody Thomas]

What I meant by that is that the 2(c) national security definition is not a one-for-one translation into the Emergencies Act. It is assigned meaning from the CSIS Act, as opposed to it must be determined by CSIS.

Section 16 of the Emergencies Act requires a broad interpretation and allows for broad consideration, as the Governor in Council has that responsibility.

The totality of the events across the country were determined to meet a threshold for a public order emergency. There were blockades at, as we know, the Ambassador Bridge, Emerson, Coutts and Surrey. There were convoys being formed across the country. As the Ambassador Bridge was being cleared, we learned of pop-ups to retake that bridge. In fact, the police had to stay in place for quite a significant amount of time.

There was a threat of weapons in Coutts and then the discovery of the size of the cache. Then there was even news we heard today about the significance of that cache and the amount of ammunition that was collected there. We were hearing the same language being used about Ottawa, that there was a threat of weapons. There were economic impacts, the inability of Canadians to live their lives and the increasing rhetoric online.

The concern about the rhetoric online—as you've all heard, because you've heard about IMVE, ideologically motivated extremism—is that the leaders of those movements are not necessarily the people who are going to act. It is the people who are motivated and inspired to act by the rhetoric they read. The rhetoric was increasing and we were getting concerned. The threats against public officials were increasing and we were getting concerned.

We were in the third weekend, going into the fourth weekend. The decision was based on the totality and the section 17 interpretation of a broad view, and the Governor in Council took the decision that the Emergencies Act was the correct course of action.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What I am hearing from you is that when that determination is being made—and you speak of the totality of events that you took into account—there is a contextual nature to that determination and the basis of your advice to PCO and to the Prime Minister of whether the threshold is met or not. Am I correct?

[Jody Thomas]

Yes, you're correct. CSIS is an intelligence agency. They collect intelligence and 2(c) allows them to collect intelligence. It doesn't allow us to necessarily act and it doesn't mean that there will be a police action as a result of 2(c).

The broad interpretation, the context, the national nature, the amount of time that this had been going on and the dire concerns coming out of Coutts led to the action taken.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

When we look at your recommendation to the Prime Minister, and when we look at the recommendation of Mr. David Vigneault, the CSIS director, I believe he told the commission that based on his understanding that the Emergencies Act definition of a threat to the security of Canada was broader than the CSIS Act, as well as based on his opinion of everything he had seen to that point, he advised the Prime Minister of his belief that it was indeed required to invoke the act.

Even the CSIS director, as I read it and understand it, agrees with your understanding of the importance of context.

I am asking you, not on his behalf, but is it your understanding that his advice to invoke the act was also based on the context that he was seeing in his role as the CSIS director as to what was happening, not just in Ottawa but across the country, and how it was escalating by the moment?

[Jody Thomas]

I can't speak for the CSIS director, but as a senior deputy minister in the national security community, yes, I believe that is the perspective he had.