Declaration of Emergency Committee on Dec. 8th, 2022

[Dr. Leah West]

I would agree that's the case. I think that if we look to the definition of “national emergency”, either paragraph 3(a) or paragraph 3(b) is where that is made clear. It has to be an emergency that's beyond the authority or capacity of a province to deal with it. Second, paragraph 3(b) has to deal with something within federal or national jurisdiction that threatens “the sovereignty, security and territorial integrity of Canada”, writ large.

Could you have a national emergency that is more regional in nature and isn't truly all across the country? I think so, but the issue is that it has to rise to the level of something that is of national concern. That takes it beyond the provincial jurisdiction and concern up to the national level.

[Claude Carignan]

I'm sorry. Given that I don't follow you on Twitter, I can't use your tweets to ask you questions.

The mayor of Ottawa said he had declared a state of emergency, but that did not really give him any powers and it was symbolic. I don't know whether you are familiar with those comments. I know you are not an expert in municipal law, but according to your CV, you have a lot of experience with emergencies.

In your opinion, that declaration? Those measures, were they symbolic only or did they confer important powers?

[Dr. Leah West]

I didn't get the interpretation. I'll try to answer your question.

The measures are supposed to be necessary to end the emergency. I don't think anyone could make the argument that a measure or a symbol is necessary. Even using it as a communications tool of the severity of the issue and how we're preparing to deal with it.... I don't think that is what would rise to the level of necessity as required in the act.

[Claude Carignan]

The mayor said that declaring a state of emergency at the municipal level did not give him any powers. However, there are still powers to seize and confiscate. The mayor has a number of powers when he declares a state of emergency.

Can you tell us any more about that?

[Dr. Leah West]

That's fairly typical. Most municipal emergency powers are limited to what would typically fall within the jurisdiction of the municipality.

Where you really see the most teeth, all across the emergency legislation, is with the provinces. The provinces' emergency powers are by far the beefiest, compared to the municipalities and to the federal government, and that makes sense, because the tools to respond to what we think of as a typical emergency rest with the provinces. For example, policing, health services and emergency services are held at the provincial level.

[The Joint Chair, NDP, Matthew Green]

That concludes the round.

We will now move on to Senator Boniface for four minutes.

The floor is yours.

[The Joint Chair, Hon. Gwen Boniface]

Thank you very much.

Professor Roach, I wanted to go back to subsection 17(1), because you didn't get a chance to expand on that. We have not heard much about that at this committee.

Could you give us a little more information around that, and how it interacts with the balance of the act?

[Prof. Kent Roach]

Sure. I agree with Professor West that you need to have paragraph 2(c), plus section 3, but then subsection 17(1) says, “When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures”. It seems to me that the issue for cabinet, and the issue that may be explored in that legal opinion, is whether they have reasonable grounds to believe that a public order emergency exists.

My own view is that 2(c) is 2(c). It doesn't mean something different through the Emergencies Act if it's incorporated as it is in the Emergencies Act, whether that is a good idea or not. I think you've heard from me. What I would like to know is how the Attorney General of Canada interpreted that. There is this increasing deference to government decision-makers and expertise. I would like to see how the belief on reasonable grounds in section 17 was interpreted, but I also wish it was Christmas.

[The Joint Chair, Hon. Gwen Boniface]

I would like to take you back to your comments on the comparative of the situation in Ottawa and the situation in Toronto. I think we've heard evidence at this committee that Toronto had the benefit of the Ottawa experience.

[Prof. Kent Roach]

Well, yes, to a certain extent. We also know, however, that, whether it was through operation Hendon or the ITAC reports, Ottawa knew this was coming.

Therefore, I don't think it's simply “they had the benefit”. I think they had the benefit of being criticized for what they did in G20 and actually got their house in order. They had a police service board and a police service that were working together functionally. They had a mayor who bothered to sit on the police service board and wasn't off on his own frolic negotiating with protesters.

I think a lot can be learned from the Toronto experience. I've said critical things about the police—you know that, Senator Boniface—but I also think we need to give credit where credit is due. There are two places where you should look to see what went right: what happened with the actual Parliament grounds not being breached—in light of what happened in 2014—and what was done in Toronto. I think those are significant successes.

Your committee should learn, in a balanced way, both from failures and from what has worked.

[The Joint Chair, Hon. Gwen Boniface]

I agree with you.

The one piece we also have to keep in mind.... Commissioner Carrique testified that—I may have my numbers slightly wrong—on one day, he had over a hundred incidents going at different points. I think we also, therefore, have to talk about capacity when we think about this, going forward.

Would you agree with me?

[Prof. Kent Roach]

Absolutely, but we also need to think about the Solicitor General in Ontario taking some sort of responsibility when it comes to those capacity issues.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

That concludes the second round. We have the ability to do a third round.

[A voice]

Was Senator [Inaudible—Editor]?

[The Joint Chair, NDP, Matthew Green]

No, it was originally slotted for Senator Carignan. There were two senators in this round.

We are contemplating a full third round of five minutes, and I want to put that to the committee. I understand there are some people who want to split times, so I'm seeking the direction of the committee on proceeding with a five-minute round. Recognizing that Senator Patterson is not here, we will claim some of that time.

I know the guests have been here for quite some time, both in person and online, so I would also like to get direction from the committee on whether or not a five-minute health break might be appropriate. Do you want to continue to work right through?

[The Joint Chair, Bloc, Rhéal Fortin]

Mr. Chair, personally, I have no objection to the committee continuing its discussions with the witnesses.

However, between 8:00 p.m. and 9:30 p.m., the committee was supposed to deal with upcoming committee business, which means we were supposed to consider motions. So if we agree to hold another round of questions, we are going to have less time to consider motions.

Have I understood correctly? The reason I ask is that the meeting is going to adjourn at 9:30 p.m.

[The Joint Chair, NDP, Matthew Green]

That is correct—with a bit of discretion on the bookend.

I'm at the direction of committee on what you want to do.

[The Joint Chair, Bloc, Rhéal Fortin]

Right.

[The Joint Chair, NDP, Matthew Green]

We could go for less time, if you want to reclaim some of that. We could do four-minute rounds, perhaps. It is at your discretion.

You want four minutes. This is great, guys. Thank you for your co-operation.

We're going to go with four minutes and we will acknowledge the split times. For the parties that want to do split time, are you requesting a hard stop at two minutes? Do you want me to intervene, or just let you figure it out?

I'll let you figure it out.

Okay, thank you for allowing us to work out that bit of housekeeping.

That being said, we will begin the third round for four minutes with Mr. Motz.

Mr. Motz, you have the floor for four minutes, sir.

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

Thank you. I'll be sharing my time with Mr. Brock.

Dr. West, you stated, “We do not label entire protest movements terrorist because some amongst the protesters are looking for an opportunity to [leverage that protest to potentially] create violence.” You also stated, “we have never labelled blockades and other non-violent but illegal means of obstructing critical infrastructure as terrorism...they do not fall within section 2(c) of the CSIS Act, no matter how broadly one interprets it.”

Can you elaborate on those statements, please, for the next minute and a half?

[Dr. Leah West]

Sure. I was referring to the violent protests we've seen in the past, such as those at the G8 and G20, as we heard, and remembering the Summit of the Americas. In those cases, we know there were violent elements of those protest movements seeking to take advantage of the protests to advance their violent agendas, but we did not label or consider those protests “terrorist”.

We've also seen a series of blockades, in this country's history, that were non-violent but illegal. We have refrained from calling them “terrorist”, because they lacked that serious threat of violence. That's been proper, in my view.

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

How would you classify the “freedom convoy”?

[Dr. Leah West]

I think it was a constellation of blockades and protests. I think we heard that the serious threats of violence, again, as in the past, came from those who sought to co-opt the movement to advance their own violent agendas. I've seen no evidence to suggest that this was the majority of the protesters or the ultimate aim of the protesters. I don't think that's much different from protests we've seen in the past.

While there may be those amongst them, certainly those in Coutts, who fall under the definition of terrorists and pose that threat, we typically don't label the entire protest movement as terrorist because of the actions of individuals.

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

Thank you.

One of your colleagues from the law school at Queen's University, a professor by the name of Dr. Bruce Pardy, wrote an article today in the Toronto Sun. The heading was, “Invoking the Emergencies Act was clear overreach”. He sets out examples as to why he forms that opinion. I don't know if either of you have had a chance to review the article, although that's not really relevant to my question.

This question goes to both professors, but I'll start with you, Professor West. Do you agree with that particular statement? If you don't, explain why.

[Dr. Leah West]

It's a little too definitive for me. As I said, my opinion is based on my understanding of the law. I stand to be corrected on my understanding of the law, but I haven't seen anything yet that shakes me from that.

If the act was interpreted more broadly, as a hook to use powers that were needed to dispel...the Emergencies Act, knowing that a tenuous legal position was being taken, I think that would be overreach.