Declaration of Emergency Committee on Dec. 8th, 2022

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

Thank you, Mr. Chair.

I'd like to thank both professors for their attendance today.

Dr. West, the Prime Minister promised Canadians, when he formed government, that he would run an open and transparent government. He agreed to co-operate fully with Justice Rouleau when asked to testify, yet he and his cabinet have hidden behind the principle of solicitor-client privilege in not releasing the legal advice he received.

A “just trust us” argument is unacceptable to Canadians. Without the benefit of that opinion, you opined in a legal article—which was co-authored by yourself, Michael Nesbitt and Jake Norris—in the Criminal Law Quarterly that:

to have properly justified the declaration of a public order emergency, the government needed to base its invocation on three novel, unconventional, and previously unanticipated ways of interpreting this legal threshold

Can you opine on that? My secondary question to that is with regard to how this article was written before all of the evidence was heard. Does your opinion still stand? If not, how does it differ?

[Dr. Leah West]

It changed slightly, because we wrote that on the basis that paragraph 2(c) of the CSIS Act was being interpreted as we would interpret it. That's what we were assuming, that when cabinet read paragraph 2(c), it read it the same way that we would have. Not having any evidence at the time the article was written that there was such serious violence or threats of violence that would amount to paragraph 2(c), we said that there must be some novel way of interpreting what “serious violence” means. Based on the section 58 justification, we looked at what was there, and it was serious economic harm in particular.

Now we've heard that it wasn't the serious economic harm, that it wasn't intelligence or evidence that wasn't available to the public, but that it was a different definition of paragraph 2(c) that was relied upon, and that was something we had not anticipated when we wrote that article.

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

Okay.

You appeared on CBC's Power & Politics on a number of occasions during the Rouleau commission, and a question put to you and another professor asked what we learned from the Prime Minister's testimony.

I also looked at your Twitter feed, and in a tweet around that same time frame—this was probably during the day or perhaps a day after the Prime Minister testified—you said that Trudeau, the Prime Minister, was making a compelling argument if you're not a lawyer. Please expand on that.

[Dr. Leah West]

It's a lot to unpack. Basically—

[The Joint Chair, NDP, Matthew Green]

You have one minute, Dr. West.

[Dr. Leah West]

Yes, thank you.

What I heard and what I've heard all the way through—as someone who's trying to take the facts and the understanding and apply them to the law—is a lot of facts being applied to different elements of the definitions, but they're not ever necessarily in the right order. You don't meet the first hurdle before you get to the next one before you get to the next one. They're all kind of just applied as if there isn't a structure to the act, so you get facts that talk about one element of the definition and then facts that talk about another. However, they don't really lay it out in terms of “you have to meet this threshold, then this one and this one”.

So, I think if you're just reading the act and aren't someone who's a statutory interpretation nerd, you look at it and think, “Oh, well, all of the things here match up with all of the things that are in the act, so that makes sense”, but that's not the way the statute is laid out. There's a series of thresholds that need to be met, and each word matters. That's why I found it compelling, but not if you're looking at it through the eye of someone who is keen on statutory interpretation.

[The Joint Chair, NDP, Matthew Green]

For those who may be keeping track, I am allowing the witnesses to finish their thoughts and their answers.

Your intervention has been completed.

We will now pass the floor over to Ms. Bendayan, who has four minutes.

The floor is yours.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you, Mr. Chair.

I'll continue along this line of questioning, Professor West.

Earlier in your testimony, you indicated that you obviously don't have all the facts, because you're not privy to a lot of the security and intelligence information, among other things. Just now, you testified that you're applying the facts to the law, but you would agree that you don't have all the facts.

[Dr. Leah West]

I don't.

[Rachel Bendayan, Liberal, Outremont, QC]

I also looked at your Twitter, and we seem to have picked up on the same article of November 30, last week, where CBC reported more details about the murder plot in Coutts, Alberta, where pipe bombs and more than 36,000 rounds of ammunition were seized by the RCMP there.

In the CBC story were mentions of unsealed search warrants that included text messages between those charged and “the bosses”, who told the charged men that “the real goal for the protests included altering Canada's political, judicial and medical systems.”

You tweeted about this story. In your tweet, you say, “Curious as to why these men are not charged with terrorism offences.” I was wondering if you could provide us with your insights into what you were referring to and, in particular, the danger of ideologically motivated extremist violence.

[Dr. Leah West]

Certainly. The definition of “terrorist activity” is the basis for a number of terrorism offences in the Criminal Code—which is different, I would say, from what is in the CSIS Act definition. It's much narrower in the Criminal Code and requires three things: an intent, a motive and a certain level of action.

I think, based on the information obtained and conveyed in those articles, that it seems there is evidence to support all three of those requirements. That's why I asked why terrorism offences weren't added to the charges, subsequently, after they were laid.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you, Dr. West.

I'll move now to Professor Roach.

There are two articles—among many more, I'm sure—you published on this topic, Professor. I would like to refer to your May 12 article, where you state, “One issue that should be examined is whether CSIS failed to collect and share intelligence on whether there were links between the protests and far-right violent extremism. Canada's intelligence agency has been slow to accept far-right terrorism as a security threat”, and you go on. I wonder whether, in connection with this article and that statement, you could provide your recommendations about how we might address that—perhaps in writing to the committee, because my time is very limited.

I will also point you to your February 14, 2022 article, which was, of course, at the height of the occupation. You stated, “The RCMP acting as federal police only has jurisdiction over actual federal property. It is the local police that is responsible for the public street...that runs in front of the Parliament building and the main highway in Windsor leading to the Ambassador Bridge. Such arrangements should now be reconsidered.”

Again, thinking towards the recommendations this committee will make, could you provide your thoughts to the committee on those statements, as well as your statement—if I understand your testimony here correctly—to the effect that all of this is, essentially, the result of a failure in policing?

I'm not sure whether you would like to expand on any of those points in the short amount of time I have left. Again, if I could get your commitment to provide your thoughts in writing to the committee, we may benefit from them.

[Prof. Kent Roach]

As I suggested in my opening statement, thought should be given to giving the RCMP primacy with respect to both the broader parliamentary precinct and border crossings.

On the issue of far-right violent extremism and whether CSIS's response was adequate, I think that is something NSIRA or the National Security and Intelligence Committee of Parliamentarians should examine.

[The Joint Chair, NDP, Matthew Green]

Thank you.

That concludes the round.

Mr. Fortin, the floor is yours for five minutes.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Chair.

Ms. West, I am going to continue where I left off on the question of interpretation.

I don't want to criticize or support the legal opinion that some interlocutors have seen, since I have not seen it. In fact, it does not exist for us. Given that you and Professor Roach are here, I would like to verify a principle of interpretation.

As I understand things, when a statutory provision grants rights, it will be given a larger and more liberal interpretation, and when a provision instead takes away rights, it will be given a more restrictive and limited interpretation.

Am I correct in thinking this, Ms. West, or am I mistaken?

[Dr. Leah West]

Generally, that's correct, that if you're interpreting rights that are depriving someone of their liberty, their property, etc., you will read that more narrowly than if you are creating a positive obligation or a positive right for others.

I'll let Professor Roach—

[Rachel Bendayan, Liberal, Outremont, QC]

Mr. Chair, I have a point of order. I didn't want to interrupt my colleague, I wanted to wait for the witness to answer.

My colleague seems to have insinuated in his question that members of the committee had seen legal opinions. I don't know whether he is alluding to my questions to the witnesses or to what other members have said, but no one has seen any legal opinion.

[The Joint Chair, NDP, Matthew Green]

When you call a point of order, it has to be specific to a standing order. That is not specific to a standing order. That is debate.

We will go back. You will have another round if you want to refute anything that's been said here in debate.

Thank you.

My apologies, Mr. Fortin. The time was stopped.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Chair.

I was not presuming anything. I am simply saying that for the purposes of our work, there is no opinion, because everyone refused...

[The Joint Chair, NDP, Matthew Green]

We're into debate on a point of order. It's not necessary. I've ruled on the point of order.

Let's get back to it. Here we go.

[The Joint Chair, Bloc, Rhéal Fortin]

I will continue.

A provision had to be interpreted restrictively when it takes away rights.

With respect to invoking the Emergencies Act, which obviously leads to various orders and regulations in its wake, is it your opinion that this is a provision that takes away rights?

[Dr. Leah West]

Yes, certainly there were limitations on people's rights with the proclamation of the Emergencies Act, but I think it's important to take a step back and talk about what we are actually interpreting, which are the words under paragraph (c) of the definition of “threats to the security of Canada” in section 2 and then how that applies to the declaration of emergency.

That specific provision isn't giving somebody a right or taking their rights away. The typical rule in that context is not one that I think would have a lot of sway in either direction, because it's not that element that is either giving a right or taking it away.

I agree that it's the general context of the act, so you might want to consider that when you're thinking about the context of the act, which is to potentially deny people's liberties.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you.

I will ask you the same question, Professor Roach.

In your opinion, must a statutory provision that takes away rights be interpreted restrictively? If so, in your opinion, must the provisions of the Emergencies Act that allow it to be invoked be interpreted as depriving people of rights?

[Prof. Kent Roach]

I agree that it did deprive them of their rights.

I also think it is jarring that CSIS didn't think the threshold in paragraph (c) under the definition in section 2 was met. Nevertheless, its director and subsequently the cabinet recommended the proclamation of an emergency.

I really think that—and again, this may lead to the legal opinion—much of it really depends on subsection 17(1)—

[The Joint Chair, Bloc, Rhéal Fortin]

I'm sorry, Mr. Roach, I have only a few seconds left.

If I understood correctly, in your opinion, the opinion that the provisions of the Emergencies Act must be given a large interpretation is not a good thing.