Evidence of meeting #21 for Declaration of Emergency in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was definition.
A video is available from Parliament.
8:20 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Through violence...yes.
8:20 p.m.
NDP
The Joint Chair NDP Matthew Green
Thank you. That concludes my round.
I will take the floor back and pass the four minutes on to Senator Boniface.
You have four minutes. The floor is yours.
8:20 p.m.
The Joint Chair Hon. Gwen Boniface
Thank you very much, Chair.
This is for Professor Roach and Dr. West, if you would like to weigh in on this one. I'm trying to come up with a recommendation that deals with, perhaps, mandatory involvement of the provinces or something in a context that says they can't step back and not reply or not attend meetings when people are trying to get a solution together.
Is there any way, within an amendment to the act or if the act is redrafted, as I suspect it should be, that you could make that an obligation?
8:20 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Senator Boniface, I hope that you're going to look at section 20 of the Emergencies Act, because I don't know why that was there originally. It preserves the municipal and provincial silos when it comes to policing. I'm not really sure whether that is necessary. In fact, this emergency may demonstrate some of the flaws of section 20.
8:20 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
I honestly can't think of something other than a legislated requirement for an invitation to the provinces, similar to the inquiry, or a recommendation.
At the same time, I would say that we also need to amend what consultation is from the federal government to the provinces, and make something of required meaningful consultation on that end as well. We shouldn't be looking at one without the other.
8:25 p.m.
The Joint Chair Hon. Gwen Boniface
I'm looking at it through the lens of the public, who don't always understand the distinct roles. On policing, people thought the RCMP were policing here, when it's municipal.
I'm trying to figure out ways that you could compel people to at least come to the table.
8:25 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
I wonder whether this is something the Uniform Law Conference could look at. It sometimes deals with overlapping jurisdiction. It's a thought.
8:25 p.m.
The Joint Chair Hon. Gwen Boniface
In terms of the governance structure for policing, both in its effectiveness and in its role, when you look at the RCMP and the OPP, which you are familiar with, do you see board-type governance as a better place to assist with this?
December 8th, 2022 / 8:25 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes. It would be board-type, but with adequate staffing.
8:25 p.m.
The Joint Chair Hon. Gwen Boniface
There would be enough responsibilities that are driven by legislation.
8:25 p.m.
Professor, Faculty of Law, University of Toronto, As an Individual
Exactly.
8:25 p.m.
NDP
8:25 p.m.
Claude Carignan
Thank you.
My question is for Professor West.
In answer to a question, you said there were no consequences for invoking the act other than political consequences. When there are debatable actions that violate section 8 of the Charter, such as unreasonable seizures, and even certain actions provided for in the order, the act does provide for the possibility of compensation. There can also be civil remedies for unreasonable seizures, for example.
8:25 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Any finding by the commission, this committee or the Federal Court that suggests that it was unreasonable or unjustified to invoke the act would form the foundation for potential charter claims. People could make the claim that their rights were unjustifiably infringed under the charter and seek a remedy—potentially a monetary remedy—from the courts.
8:25 p.m.
Claude Carignan
So there could be civil actions, and we might see another prime minister apologize, as Mr. Trudeau often does. There would be a different one apologizing for invoking the Emergency Measures Act.
8:25 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
I'm sorry. I don't hear your interpretation.
8:25 p.m.
NDP
8:25 p.m.
Claude Carignan
It's about apologizing.
8:25 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Was the question about giving apologies? Certainly, that would be one way of trying to repair any harm from an unjustifiable use of the Emergencies Act, but I suspect that findings in court might be more meaningful.
8:25 p.m.
Claude Carignan
I would like to hear your thoughts on professional privilege. I don't know the extent of your knowledge of that subject. Who is the client, in this case?
We have often heard the minister say he could do nothing because of professional privilege.
Who is the client and who can waive professional privilege?
8:25 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Usually it's the client, so in this case, it would be cabinet or the Prime Minister.
8:25 p.m.
Claude Carignan
So, the Prime Minister or cabinet could waive it. If we summon the Prime Minister to appear here as a witness, we could ask him whether he waives professional privilege, and, if he does, get access to the information.
8:25 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
Yes.
8:30 p.m.
Claude Carignan
Right.
There is also an implicit waiver when information in a legal opinion is disclosed to third parties who are not members of cabinet. We have seen that Mr. Vigneault seemed to have had access to this legal opinion, when he was not a member of cabinet and did not take part in the decision.
Does disclosure to a third party not amount to implicit waiver of professional privilege, as we have seen in a number of judgments, for example?
8:30 p.m.
Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual
I would say no. Having been a former Department of Justice lawyer, I would say that my client would be the government. Anyone within the government who needed to make that decision would have access to that opinion.
If it was important for them to have Director Vigneault's opinion, based on that legal opinion, I don't think it would be improper for him to have seen it as a party to the government.