Declaration of Emergency Committee on Dec. 8th, 2022

[The Joint Chair, NDP, Matthew Green]

I call this meeting to order.

Welcome to the 21st meeting of the Special Joint Committee on the Declaration of Emergency created pursuant to the order of the House on March 2, 2022 and the Senate on March 3, 2022.

Today's meeting is taking place in a hybrid format, pursuant to the House and Senate orders.

Should any technical issues arise, please advise me, as we may need to suspend for a few minutes to ensure that all members are able to fully participate.

Witnesses should be aware that translation is available through the globe icon at the bottom of the screen.

I wish to inform members that Professor Roach has undergone all technical tests successfully, and both witnesses have been informed of their duty as it pertains to responding to questions.

I always like to provide a bit of a preamble to the witnesses that, given the nature of the committee, you may find from time to time that a parliamentarian may interject to take back their time. They may interrupt you. Please don't take that personally; it's not a personal affront. They have a long list of questions and a very short period of time in which to conduct them. We ask that you acknowledge, if a senator or an MP interjects, that it's not a personal affront to you.

For our first panel this evening, we have with us, by video conference, Kent Roach, professor in the faculty of law at the University of Toronto. Here in the room, we have Leah West, assistant professor at the Norman Paterson School of International Affairs at Carleton University.

You will each have five minutes for your opening remarks. We'll begin online.

Professor Roach, the floor is yours.

[Prof. Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you very much for this invitation to assist with the important work of this joint committee.

Although I am a member of the Public Order Emergency Commission's research council, I should stress that I am speaking only in my individual capacity and, indeed, I am not privy to the commission’s internal deliberations as it prepares it report.

I have written about the events leading to the declaration of emergency, both in my book Canadian Policing: Why and How it Must Change and in an article in a special issue, volume 70, number 2 of Criminal Law Quarterly, where Professor West also has an article.

In both of these venues, I suggest that the use of emergency powers was related to policing and policing governance failures. This is an important matter even when the Emergencies Act is invoked, because section 20 of the Emergencies Act preserves the existing and, I would submit, fragmented and dysfunctional governance silos of the local, provincial and national police.

Let me make three points. One is that, if you compare the police responses in Ottawa and Toronto, you will see that the Toronto response was more effective and reflected the lessons of the Morden report that there should not be watertight compartments between policy and operations, something that was inelegantly referred to more than once in the emergency commission as “church and state”.

This lesson should have been learned long ago, at least since the 1981 McDonald commission, which, like the Supreme Court in its 1999 decision in Campbell and Shirose, stressed that police independence is limited to the ability of every police officer to make law enforcement decisions about whom they will arrest and investigate. Everything else, in my view, is potentially a matter that the responsible governing authorities, the democratically accountable authorities, can assume responsibility for. In a democracy, the police should not be self-governing.

My second point is to address Bill C-303, which is before Parliament. It is a good idea, in that it recognizes that the responsible minister can direct RCMP policies in the form of public directions. It has the potential to clarify police governance. Unfortunately, it continues to define police independence too broadly by exempting RCMP operational decisions, including day-to-day operations, from the ministerial directives. The term “operational” only occurs in policing laws in Ontario and Manitoba, and has indeed caused much confusion and the sort of under-governance that led to the Ottawa police board's having no published policies before the convoy arrived about how to police protests on Wellington Street. They had policies on labour protests and on indigenous protests, but no public policy on Wellington Street.

My final point is that we need such policies. We need to think creatively about these policies, including how to use barriers as a means to reconcile the right to peaceful protest with human safety.

I would urge this committee to be creative and to explore the suggestions of former Senator Vernon White about a redesign of Wellington Street. I would also urge you to consider giving the RCMP a clear lead in policing the parliamentary precinct and border crossings, but only if its governance and resource policies are addressed.

Bill C-303 could be part of this reform, but only if its overbroad definition of police operational independence is rejected through an amendment, one limiting police independence. Police independence should also be defined so that it does not impede the ability of police leaders to control and manage their organizations. Again, this can be done if we limit it to law enforcement discretion.

I would be happy to answer any of your questions. I have particular concerns addressed in my Criminal Law Quarterly article about some of the elements of the events with respect to the Emergencies Act.

Thank you very much.

[The Joint Chair, NDP, Matthew Green]

Thank you very much for your intervention.

We will now go to Professor West for five minutes.

The floor is yours.

[Dr. Leah West, Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual]

Thank you very much, Chair, for the invitation.

In the short time I have with you today, I'd like to focus on two issues of statutory interpretation that I think are exceptionally important to this committee's work.

The first is a reference to the CSIS Act and the definition of “public order emergency”. The second I may not get to, I admit. It's the “any other law of Canada” criterion in the definition of “national emergency”.

Before getting into the specifics, I think it's important to set the stage with the modern principle of statutory interpretation and a few core rules.

The leading and well-established Supreme Court precedent on statutory interpretation comes from Rizzo—

[The Joint Chair, Bloc, Rhéal Fortin]

Mr. Chair, could you ask the witness to speak a little more slowly, please? I have the feeling that the interpreters are having trouble keeping up.

Thank you.

[Dr. Leah West]

Sure.

[The Joint Chair, NDP, Matthew Green]

Did anybody else have issues with the interpretation?

Feel free to back it up a little bit if you want. You're only a minute in.

[Dr. Leah West]

It's all right.

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

Chair, I have a point of order.

Can the witness back it up a little bit, so we have the proper context, please?

[The Joint Chair, NDP, Matthew Green]

Would you mind starting from the beginning?

Thank you.

[Dr. Leah West]

The first point I would like to address is the reference to the CSIS Act definition of a public order emergency, and the second, which I hope to get to—but if not, in questions—is the definition of “any other law of Canada” and those criteria in the definition of national emergency.

Setting the stage, the principle of statutory interpretation, or the modern principle we apply, was set by the Supreme Court in 1998 in a case called Rizzo & Rizzo Shoes Ltd. It has really become a mantra. The quote reads:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

There are a few assumptions that underlie statutory interpretation using this principle. One of the clearest is the presumption against tautology, meaning that every word in the act must be given meaning. Every feature is deliberately chosen to play a role and there is no unnecessary or meaningless language in statutes. The legislature does not make the same point twice.

A second presumption is that of consistent expression. It is presumed that the legislature uses words and patterns of expression in a consistent way. Once the legislature adopts a particular way of expressing something, it avoids variations and prefers to express the same meaning in the same way.

Of course, undergirding all of this is the concept of the rule of law, which means, in part, that the law as written has to mean something tangible, articulable and discernible to those who read it and are subject to it, and those tasked with interpreting it, so that those who exercise power given to them through the law cannot do so by whim, abuse or prejudice.

This brings me to the definition of a public order emergency. The plain text of section 16 states that a public order emergency “means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” “Threats to the security of Canada” is then defined in the act for the sake of that portion of the Emergencies Act. Section 16 states that the phrase “has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act”, the CSIS Act.

Just looking at this provision, the statute tells us not only that the EA incorporates the words in section 2 of the CSIS Act, but that it also incorporates the meaning assigned to it under that act. As we know, and as I just said, every word used in a provision has meaning and its use is deliberate.

This understanding is consistent with the clear intention of Parliament. During the debates over the act, much of the concern around the Emergencies Act was the ability to invoke the act to quell public dissent under a public order emergency. Moreover, we know that during the FLQ crisis, the War Measures Act was deployed against politically motivated terrorism, so, not surprisingly, this section of the act got a lot of attention.

In response to those concerns, it was made clear that only protest and violence that meet the definition of a threat to the security of Canada as defined in the CSIS Act, and then only those threats that also meet the definition of a national emergency, could form the basis for a declaration. This is what the bill’s sponsor, Perrin Beatty, referred to as a “double test”. He also reminded members of the House who were concerned with how broad and vague the CSIS Act definition is that this definition had received exhaustive scrutiny by Parliament.

Thus, we know from both a plain reading of the text and the clear intention of Parliament that the meaning of “a threat to the security of Canada” comes from how it is understood and applied in the CSIS Act, and the breadth of the CSIS Act definition—which is, I would argue, quite broad—is then narrowed through the definition of a national emergency.

I would also put forth that there is nothing in the other elements or provisions of the Emergencies Act that is inconsistent with this understanding or calls into question this interpretation.

Additionally, the incorporation of section 2 of the CSIS Act is actually not unique to the Emergencies Act. The same move is made in the Security Offences Act, the Access to Information Act, and the Privacy Act. In each of those acts, who is doing the interpreting, in terms of what meets the threshold, is not necessarily CSIS. In the case of the Security Offences Act, for example, it is the Attorney General, when deciding when to seize jurisdiction from the provinces.

Finally, I want to reiterate that the requirement is that the national emergency arises from a section 2 threat. This is a causal requirement, meaning that what is a national emergency of an urgent, temporary and critical nature, and beyond the provinces, arises from threats of serious politically motivated violence—meaning that economic or reputational harm and all the other things that we certainly saw as a result of the crisis in Ottawa and across this country have to be the result of serious threats of violence as understood in the CSIS Act.

I know that I'm now over time. Hopefully, in questions, I can talk about what “any other law of Canada” means.

Thank you.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

We will now begin our five-minute segments of interventions with Mr. Motz.

Mr. Motz, you have five minutes. The floor is yours.

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

Thank you very much, Chair.

Thank you, Dr. West and Dr. Roach, for being here.

Since you didn't get to complete your opening remarks, could you table those with the committee at the end of today so we could have access to those, please? Thank you so much.

Dr. West, you indicated publicly that a national emergency is a public order emergency that can't just arise from incompetence in various municipalities or provinces. It has to arise from a threat to the security of Canada, which typically means terrorism or violent extremism, to meet the threshold to invoke the act.

Have you seen any documents, anything you've looked at since the invocation, that this threshold was met?

[Dr. Leah West]

Well, I don't think it's fair to ask me that, because I haven't seen all of the intelligence that was relied upon by CSIS or the cabinet—especially the cabinet—to make that decision.

My point was then—and I would make the same point now—that the key is that the threat to the security of Canada has to be what drives the emergency, rather than it being the by-product of the emergency. That was really the key of what I was trying to say. There should be a causal connection there—that's how I interpret the statute—rather than it being something that happens as a result of another reason for the emergency.

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

That's fair enough.

One of the things that I find very concerning, and that I think many Canadians do, is the precedent that will be set once Justice Rouleau releases his final report. He essentially will either agree with or disagree with the government's expansion of the CSIS definition and the threshold that served as a foundation for the rationale for invoking the Emergencies Act.

Dr. West, can you speak to why it's so important that future governments be constrained by law—like the CSIS Act—when it comes to using the Emergencies Act?

[Dr. Leah West]

Yes. I think the rule of law requires, especially where the legislature speaks and does constrain the power of the executive, especially in times of crisis, that the executive adhere to those constraints imposed by the legislature.

I think the Emergencies Act has incredible amounts of discretion for the executive, and that would be how anyone would interpret it: whether or not they had reasonable grounds to believe a threat to the security of Canada existed and then whether it was necessary. They have incredible amounts of discretion there, but when Parliament has chosen to be very narrow—in this case, in its use and the definition of threats to the security of Canada—it's important that be respected because it was a deliberate choice, and the rule of law is the backbone of what makes us a liberal democracy that thrives on the rule of law.

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

Okay. That's fair enough. Thank you for that.

One of the things I found interesting was that at one point you actually tweeted that in your opinion there were holes in the Prime Minister's legal analysis. Can you expand on what you meant by that or on what that means in your opinion?

[Dr. Leah West]

My understanding of what the Prime Minister said when he testified before the POEC was that he took into account different considerations than CSIS did when making the determination as to whether or not the definition of paragraph 2(c) was met, and he also viewed paragraph 2(c) to be more broad.

I don't think he said that. I think he said something to the effect.... I think the CCLA had him acknowledge that the thresholds were the same, but then subsequently, when asked what factors led him to believe that paragraph 2(c) was met, he listed a variety of threats, violence and weapons, etc. that he relied on to make that decision. I suspect that CSIS would have also relied on all of those factors when making its assessment. It didn't seem to be anything that would not have been subject to CSIS's consideration.

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

Okay. If I'm understanding you correctly, the broader interpretation that we are left with—that we haven't seen—could include the same sorts of things that CSIS was reasonably looking at. Is that what your assessment would be?

[Dr. Leah West]

Yes. It was the fact that he suggested that he viewed the standards to be the same between the CSIS Act and the Emergencies Act, but that he relied on different factors. But then the factors listed are factors that would have been considered by CSIS.

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

And what CSIS said was that there was no threshold under section 2...to meet the threshold to invoke the Emergencies Act.

[Dr. Leah West]

Yes, that's my understanding.

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

Thank you very much.

[The Joint Chair, NDP, Matthew Green]

Excellent. Thank you.

We'll now move on to Mr. Virani.

Mr. Virani, you have five minutes, sir. The floor is yours.

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

Thank you very much.

Thank you to both witnesses for their testimony. I'm going to direct my questions to Professor Roach.

First of all, it's nice to see you, Professor Roach. By quite a coincidence, we have two U of T law alumni here at the committee, at least two.

I'm going to ask you about three areas of questioning.

You mentioned some of the things you've written about. There are a couple of things of yours that I've read. I'm going to quote to you some of the passages in an article called “The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights”, which appeared in a German publication. It touched upon something that you identified a bit in your opening. I want to take you to it.

It's about this idea of possible areas for improvement and the idea that policing is multi-jurisdictional, particularly in a federation like Canada. What you said in that article is this:

One limit of the inquiries triggered by...the Emergencies Act is that they are limited to examining the federal government’s actions, whereas the roots of the Ottawa occupation and the Windsor blockade are in failures of local policing, including planning for protests. There is no requirement that Ontario, which has ultimate jurisdiction over the local Ottawa and Windsor police, will call a similar inquiry. This is an omission given that emergencies are defined as something that exceeds the capacity of the province.

I know you're intimately familiar with the inquiry that Justice Rouleau was leading. We actually saw an effort to have the Premier of Ontario come before that inquiry, which was then subject to some litigation that was successful from the perspective of the premier's not being interested in participating.

Can you tell us, from your perspective, what you would recommend that we should be doing as a committee to try to rectify this situation, given the constitutional parameters that we're operating under or the division of powers? Going forward, how would you see future inquiries involving by necessity all three levels of government when there is an emergency such as this that gets triggered?

It's over to you, Professor Roach.