Declaration of Emergency Committee on Dec. 8th, 2022

[Prof. Kent Roach]

Thank you very much.

You're quite right that the premier and the solicitor general did not testify and successfully invoked parliamentary privilege, so that's obviously a problem going forward, but I was actually surprised at the level of provincial and municipal buy-in at the Rouleau commission.

It seems to me that the only way the federal government can control that is by giving the federal government and federal policing a lead role in those areas, whether it be the parliamentary precinct or border areas. I think that's really the only way the federal Parliament can respond to this interjurisdictional nature.

Professor West mentioned the Security Offences Act, which is not well known enough, but we actually do have precedent for federal pre-emption of provincial areas in the national security area. This might be an area for you to consider if you want to ensure there will be full accountability for future emergencies should they develop around these same areas of federal interest.

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

Let me explore that with you. I have about a minute and a half left, I believe.

Your article also talks about intelligence failures and policing failures, and links the two in that same article. It talks about underestimating right-wing extremism to the detriment of...overestimating things like “al Qaeda and Daesh”, for example, and then the policing failures that might follow therefrom, because ultimately this was a policing issue.

What would you recommend in terms of what we should be doing with respect to policing failures? I note that your article also talks about how indigenous or racialized protesters are sometimes treated versus how these blockaders were treated for three weeks in Ottawa and perhaps some of the biases that were involved. Could you elaborate on that point?

[Prof. Kent Roach]

Yes, the OPP operational handling has actually gotten a lot of praise. I'm not going to join that bandwagon. My concern is that intelligence operations started with respect to indigenous occupations. Also, some of the product we've seen uses phrases like “the patriot movement”, which don't really seem to me to strike down.

Although the RCMP and CSIS are subject to fairly rigorous scrutiny by NSIRA, the OPP and municipal forces, when they collect intelligence, are subject to very limited scrutiny, only by the Ontario independent police review director, if that person has enough resources to do systemic reviews. My understanding is that they don't.

Again, this may be another reason for the federal arms to play a lead role, because we cannot guarantee adequate levels of accountability at the provincial level.

[The Joint Chair, NDP, Matthew Green]

That concludes this round of questions.

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

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Chair.

Hello, Ms. West, and thank you for being here today.

I heard your answers to the questions from my colleague Mr. Motz regarding the justification for declaring an emergency. I thought I understood that you were not in a position to determine whether it was justifiable or not, given that you did not have all the evidence.

Ms. West, some people have stated the hypothesis that this was an emergency that justified invoking the act based on a legal opinion that is supposed to have been given. Do you consider it essential to read the legal opinion? Is your knowledge of the events sufficient alone to determine whether there was a threat to the security of Canada or not?

[Dr. Leah West]

To read the legal advice would help me understand if my interpretation of the act has any holes in it. I came to watch what happened, the invocation, and adjudge everything from it based on my reading of the act. As someone who's written about it before it was invoked, as someone who has advised on it during COVID, I have a clear understanding, in my mind, of what it means.

I'm not saying that there could not be some sort of legal precedent out there that could potentially change my mind. I would have to read that to see whether or not I would concede anything. That would be the value in reading the legal opinion, to see whether or not the common understanding of the act, and especially section 16, could give way to a different interpretation, as suggested by the government.

[The Joint Chair, Bloc, Rhéal Fortin]

Based on what you already know about the situation, do you believe that there was a threat to the security of Canada, yes or no?

[Dr. Leah West]

No.

[The Joint Chair, Bloc, Rhéal Fortin]

It is often argued that the definition of an emergency has to be interpreted more broadly than the text of the present act.

What do you think should be the biggest difference in how that definition could be interpreted, keeping in mind that it is in a situation where there is a wish to declare an emergency? There is the text as it stands, which you are familiar with, but if we interpret it very broadly, in your opinion, how far can we go in drawing valid and justifiable conclusions?

[Dr. Leah West]

That's an interesting question.

I think the definition, as it stands, is already quite broad. I think that reflects the concerns of opposition MPs, the Canadian Civil Liberties Association and the Canadian Bar Association when the act was first introduced.

The definition of “threat to the security of Canada” is intentionally broad and somewhat vague, because CSIS is an agency that needs to be able to interpret potential threats, things that are not quite there yet and things that are hard to discern. Having very firm lines around what is and is not up for a potential investigation, as in the context of a criminal investigation, is something that is avoided by having more broad and vague language, as is used in the CSIS Act. It's not so vague as to not denote anything, but it is quite vague.

To say how broadly we can interpret it.... I have a hard time with any broadening of it, especially when we talk about paragraph (c) under the definition of “threats to the security of Canada” in section 2. What we're talking about here is terrorism and violent extremism. These things are already quite hard to put your hands around, to understand what is or isn't violent extremism, for example. To say that as we currently understand it we could interpret it even more broadly, I don't see where there is a limit. I think we have to rely on the text.

Where there is discretion is in that weighing of the factors to decide whether or not that definition is met. It's not what the words themselves mean.

[The Joint Chair, NDP, Matthew Green]

I did allow the intervention to go longer, because I think it was important. That was five minutes.

Professor Roach, could you please lift your mike up a little bit, for the purpose of the sound?

Senator, would you be able to take the chair while I do my intervention for five minutes?

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

I would, absolutely.

[The Joint Chair, NDP, Matthew Green]

Thank you.

Professor West, you acknowledged that your legal opinion is based only on the information that's been made publicly available. You suggested that further scrutiny to know what the government knew and how they reacted to it would help in your legal analysis on whether or not the government made the right choice. Is that correct?

[Dr. Leah West]

That's correct.

[The Joint Chair, NDP, Matthew Green]

Professor Roach, do you share that same opinion?

[Prof. Kent Roach]

Yes. For example, it's been mentioned that the OPP had undercover operatives in the Ottawa protest. We don't know what they came up with. I really think that you can only fully investigate this if you do so in a manner that is in camera, subject to national security confidentiality.

I would add that I think that, moving forward, you should consider that an inquiry would have powers to go behind solicitor-client privilege. NSIRA, for example, has those powers.

[The Joint Chair, NDP, Matthew Green]

I would put to you that Parliament has those powers, that the convention of cabinet confidence is only a convention and that ultimately we're the grand inquisitors of the nation.

The point I want to make is more on the legal opinion. This has been a challenge, even for this committee with our parliamentary privileges. It's getting access to the legal understanding in order for our own process to take due course to be able to provide analysis.

I'll put the question to you and ask if you can answer it briefly.

Professor West, would you benefit from having the internal legal opinions of the government made public for scrutiny by subject matter experts like you and by the public?

[Dr. Leah West]

Yes.

[The Joint Chair, NDP, Matthew Green]

Professor Roach, would you agree that a legal opinion would be valuable in terms of looking forward on this topic, regardless of what side the issues are on?

[Prof. Kent Roach]

Absolutely.

[The Joint Chair, NDP, Matthew Green]

You mentioned the notion of “any other law of Canada”. I do want to give you the opportunity to speak to that, Professor West. I'm curious as to why you brought it up. I'm not clear about where you were going with it.

[Dr. Leah West]

Yes, “any other law of Canada” means any other federal law. It does not literally mean any other law of Canada. This was decided by the Supreme Court in Roberts, in 1989. That case involved interpreting section 101 of the Constitution. It includes federal statutes or federal common law.

Typically, federal legislation says any law of Canada or of a province or “any other law” if it's used to denote wider application. The reading of “any other law of Canada” makes more sense in this if you look at paragraphs 3(a) and 3(b) of the definition as well. Paragraph 3(a) would become redundant, because it already says it has to be beyond the authority and capacity of a province. Paragraph 3(b) doesn't have anything to do with provincial jurisdiction.

Realistically, once the executive has decided that the criteria under the chapeau of paragraphs 3(a) and 3(b) are met, all they need to look to, then, is whether or not there are other federal statutes for them before they invoke the Emergencies Act.

[The Joint Chair, NDP, Matthew Green]

I have to say that I regret not inviting you to this committee earlier, because that is a significant interpretation that I don't think we had been made aware of.

Just so we're clear, and for the purpose of the record, you're suggesting in that analysis and that legal opinion that regardless of the fact that there was a breakdown municipally with the local police here and regardless of the fact that provincially they had tools, both through the Ministry of Transport and perhaps some other incentives for the truckers to leave the occupation, that really doesn't matter. Even if those remedies were available but not used, as you understand the act it is only the federal laws or regulations that had been exhausted.

[Dr. Leah West]

That first part goes to.... If you're invoking under paragraph 3(a), that goes to the authority and capacity of the province. You should be looking to see whether or not there are other authorities for the province to remedy the situation.

Once you've decided that the province or the municipality doesn't have those authorities and you've decided that the definition is met, the federal government only needs to look at its federal tool belt.

[The Joint Chair, NDP, Matthew Green]

I want to get very clear about that first point. Even if they have the authority, is it your opinion that if they have the authority, but don't use it, it's the same thing? This, for me, is the practical crunch of the matter. Having the law and then having an effective failure of policing I don't think was contemplated by Perrin Beatty when this was. Would you agree with that assessment?