Declaration of Emergency Committee on Dec. 8th, 2022

[Dr. Leah West]

I would agree that the Emergencies Act contemplates everyone doing their jobs. It does, however, say “authority” or “capacity”. If for some reason they don't have the capacity to fulfill their duties or use their authorities, that's a separate question, because it does say “authority” or “capacity”. It does not need to be both.

[The Joint Chair, NDP, Matthew Green]

Got it. Thank you very much for that. That's great for my own analysis on this.

Senator Boniface, you have five minutes. Oh, you were timing me too.

We have great co-chairs at this committee, by the way.

Thank you so very much and thank you for the little bit of extra time. I noted that.

Senator Boniface, you have five minutes. I have taken back the chair and the floor is yours.

[The Joint Chair, Hon. Gwen Boniface]

Thank you.

Thanks to both of you for being here. I agree with the chair. It's important to have your presence and your views, so thank you for taking the time.

I'm going to address my first comments to Professor Roach.

First of all, thank you for your comments. I'm particularly interested in some of your references to police and police jurisdiction and the role of the province. I'd be interested in your giving a better sense, if it had been a perfect world, of what you would have expected in terms of the role of the province.

[Prof. Kent Roach]

I would look to the Toronto example, where there were barriers put in place that protected the critical infrastructure of the hospital. There was a full briefing by a police board, which the mayor actually sat on, and there wasn't the sort of disarray that you saw both in the Ottawa police and in the Ottawa Police Services Board.

[The Joint Chair, Hon. Gwen Boniface]

Thank you.

When it comes to directing operations, which you're very familiar with and which I think you covered in your book as well, we heard that here as well, in terms of what I think is a misunderstanding by people in political areas of the role of the operations of police and where they can intervene and when they can't. Can you elaborate a little on that? That's a fundamental question here in terms of responsibility.

[Prof. Kent Roach]

Absolutely. I mean, if the police have complete operational independence, then they're essentially self-governing, and they're restrained only by the fact that we have good police that are generally restrained.

To go back to the McDonald commission, they always said that policy of operation was a matter for the responsible minister, but it's too easy for the responsible minister or the police service board to say, no, that's a matter of operation. That's why I was quite distressed to see again in Bill C-303, which I think is a worthy effort, this mantra of operational independence, which is extremely confusing. Justice Morden had to devote 100 pages of legal analysis to try to elucidate it, and his messages obviously didn't make it to the Ottawa Police Services Board.

[The Joint Chair, Hon. Gwen Boniface]

You will agree with me that certainly in the Ipperwash Inquiry, which you and I are both familiar with, this was actually one of the fundamental questions—the ability of politicians to direct the police. Some information out of that may have been helpful to this issue.

[Prof. Kent Roach]

Exactly. The part of Bill C-303 that I think is good is that it picks up Justice Linden's recommendation with respect to how this is going to be an area that will change over time, and when the responsible political authority assumes responsibility, they should do so in writing and there should be a presumption that what that direction is will be made public. I think Bill C-303 is going down the right route.

One of the things Justice Linden said was that there's no one-time solution between policy and operation or church and state. It really is a dynamic contextual issue. In a democracy, we have to make sure that ultimately policies are set or not set, as the case may be, by those over whom we can have some democratic accountability.

[The Joint Chair, Hon. Gwen Boniface]

I want to pick up on your comments around intelligence—particularly, in this case, intelligence collected by the police. Because that is shared among three levels, what would you suggest in terms of oversight or review that might be beneficial in terms of those sorts of issues?

[Prof. Kent Roach]

I think if there was some formal coordination that included the federal involvement, then you would ensure that NSIRA and the National Security and Intelligence Committee of Parliamentarians could at least have some review over that. The problem is that there is nothing like NSIRA or the National Security and Intelligence Committee of Parliamentarians at the provincial or municipal level. Therefore, you have an accountability gap.

[The Joint Chair, NDP, Matthew Green]

Thank you.

Senator Carignon, the floor is yours for five minutes, please.

[Senator Claude Carignan]

My question is for Professor Roach.

It has been said that the measures taken under the Emergencies Act were subject to the Canadian Charter of Rights and Freedoms and there was nothing to worry about since the Charter applied.

What do you think about the restraint order freezing the bank accounts of people who participated in the convoy in Ottawa? Did those seizures violate section 8 of the Charter? In the Supreme Court of Canada judgment in Laroche, it was held that a restraint order was a seizure.

[Prof. Kent Roach]

Thank you for your question.

Anyone can say that things are charter-proof. I've written extensively about how the charter sets only minimal standards, but there were many aspects of the emergency order, not only the financial aspects, that I think could be charter-suspect. Being able to seize or freeze assets without any discernible due process is something that could be vulnerable. There is also the use of the “breach of the peace” concept in the second part of the regulation, but we actually don't have an offence of breach of the peace, and it is vague. So I would not be willing to write a clean bill of health, with respect to the charter, for either the financial or the protest-related measures.

Similarly, the definition of interfering with trade as an offence is staggeringly broad. I think it's important that we apply the charter standards, but the fact is, that's never going to happen before a court, and just because the government says something is consistent with the charter, that doesn't mean it is.

[Claude Carignan]

I heard an argument that made my hair stand on end.

[Prof. Kent Roach]

Me too.

[Claude Carignan]

I imagine!

Obviously, there has to be some action by the state or the government. However, people have said that because they were not the ones who seized the accounts, it was the banks, this was not a search or seizure.

What do you think of that argument? Does it have the same effect on you as on me?

[Prof. Kent Roach]

Yes. It is technically true that the charter only binds the state, but there are section 8 decisions under the charter where the fact that the nurse got the blood sample as opposed to the police officer does not immunize something from the charter.

Of course, in the area of financial sanctioning, the use of financial institutions at the direction of the state, I think, could very well be subject to charter scrutiny. I think the courts will be sensitive to the fact that if they hold the opposite, then it really does create a pretty large accountability gap, because so much in the area of financial sanctions or indeed surveillance is now done by the state directing the private sector.

I think our courts are aware of this and interpret the charter in a broad way, in part because they don't want to provide governments with incentives to basically say, “Here's someone not subject to the charter. Why don't you go and do our dirty work for us?”

[The Joint Chair, NDP, Matthew Green]

That does conclude the five minutes.

I'm sorry.

We will now go to Senator Harder.

You have five minutes, sir, and the floor is yours.

[Peter Harder, Senator, Ontario, PSG]

Thank you very much, Chair.

My first question is for Professor Roach.

Professor, you've argued that Canada has not taken the threat of far-right extremism seriously enough. In the wake of the convoy protest, can you elaborate on where we've fallen down, what threats we must consider going forward, and whether or not we have the legal tools to deal with the threats as you see them?

[Prof. Kent Roach]

Thank you, Senator Harder, for that question.

I think CSIS came very late to recognizing that violent extremism, particularly from the far right, was taking far more lives than terrorism inspired by al Qaeda or Daesh. Again, when we evaluate CSIS's determination that there was not a threat to the security of Canada, we have to recognize that it was coming fairly late to that game. I'm not saying whether that means they were right or wrong, but I think it is relevant.

Since that time, there has been.... Again, in Operation Hendon, you see in references to the “patriot movement” an assumption that the far right in Canada will be very similar to the far right in the United States. There are certainly transnational dimensions to this that we've unfortunately seen in New Zealand, Buffalo and elsewhere, but I think we need to develop a much more sophisticated understanding of ideologically motivated extremism.

I would expect that to come mainly from CSIS, as opposed to the police. From the lessons of the McDonald commission, police are not trained to have the sort of political skills to do intelligence, and particularly saying when extremism, which I think is something we shouldn't necessarily be extremely concerned with, passes into violent extremism. That's not necessarily a call that I would expect the police to be best suited to make. I would rather have CSIS making that call, subject to ministerial direction and subject to all the oversight that comes with it.

Do we need more legal tools? I think that really remains to be seen. I don't think.... I agree with Professor West that there are lots of people in the security establishment in the federal government who want to expand section 2 of the CSIS Act. Well, you're supposed to do that before, not through interpretation. I agree with Professor West that this is kind of basic in a rule of law state, but I also think this is not something that should be undertaken on the fly. It is extremely serious, especially given the new powers we've given to CSIS to engage in threat reduction. Maybe we need to go back and really rethink the entire CSIS-police distribution.

We also know through the RCMP's institutional report to the commission that it has four different intelligence sections, including on ideologically motivated extremism. The civilian review board is not going to be able to keep up with that, especially when it has to deal with CBSA. I hope NSIRA and the National Security and Intelligence Committee of Parliamentarians are taking a hard look at that from both a rights perspective, that we're not branding extremism as something that should be subject to intelligence, but also from the efficacy point of view, that we're actually doing it with the needed resources and skills that are required.

I'm sorry for the long answer.

[Peter Harder]

It was a long answer, but it was very worthwhile.

Mr. Chair, do I have time for another question?

[The Joint Chair, NDP, Matthew Green]

You have 30 seconds.

[Peter Harder]

Very quickly, then, I'll turn to Professor West.

Director Vigneault testified before the committee, as you well know, with respect to his view of the legal framework for the action that was undertaken. Are you disputing his testimony?

[Dr. Leah West]

No. Director Vigneault said that he was not of the view that what he witnessed was a paragraph 2(c) threat. He was provided legal opinion that told him he could take a broader view of paragraph 2(c), and then, based on that, provided his advice as an adviser on national security. I think that's permitted.

[The Joint Chair, NDP, Matthew Green]

Thank you.

Since Senator Patterson is not here, we will go on to the next round, which is a four-minute round.

Mr. Brock, the floor is yours for four minutes.