Thank you, Chair.
My motion is as follows:
That, in light of developments since the Committee's most recent meeting, including a Federal Court ruling which found that the government’s use of the Emergencies Act to have been illegal and that the special criminal laws subsequently created by the Liberal Cabinet to have been an unconstitutional breach of Canadians' Charter rights, as well as correspondence from the Privy Council Office concerning translation of the evidence before the Public Order Emergency Commission,
(a) in relation to the Federal Court judgment,
(i) the Committee invite the following witnesses to appear, separately, for at least one hour each:
(A) the Honourable David Lametti, the Minister of Justice and Attorney General of Canada at the time,
(B) the Honourable Arif Virani, the Minister of Justice and Attorney General of Canada,
(C) the Honourable Marco Mendicino, the Minister of Public Safety at the time,
(D) the Honourable Chrystia Freeland, the Deputy Prime Minister and Minister of Finance,
(E) Royal Canadian Mounted Police Superintendent Denis Beaudoin,
(F) representatives of the Canadian Civil Liberties Association,
(G) representatives of the Canadian Constitution Foundation, and
(H) other witnesses whose names are provided to the Joint Clerks by members of the Committee within ten days, and
(ii) an order do issue for all legal opinions which the government relied upon in determining that
(A) the threshold of “threats to security of Canada”, as defined by section 2 of the Canadian Security Intelligence Act, required by section 16 of the Emergencies Act, had been met,
(B) the thresholds required by paragraphs 3(a) or (b) of the Emergencies Act, concerning a “national emergency” had been met,
(C) the situation could not “be effectively dealt with under any other law of Canada”, as required by section 3 of the Emergencies Act,
(D) the Emergencies Measures Regulations were compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act, and
(E) the Emergency Economic Measures Order was compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act, provided that these documents shall be deposited with the Joint Clerks, without redaction and in both official languages, within ten days of the adoption of this order;
(b) in relation to the translation of Commission evidence,
(i) the Committee invite the following witnesses to appear, separately, for at least one hour each:
(A) senior officials from the Privy Council Office, and
(B) other witnesses, representing parties which placed unilingual submissions before the Commission or entities whose unilingual evidence was before the Commission, whose names are provided to the Joint Clerks by members of the Committee within ten days, and
(ii) members of the Committee shall, within ten days, identify their preliminary lists of unilingual Commission evidence or submissions for priority translation to the Joint Clerks who, in turn, shall relay those requests to the Privy Council Office;
(c) to accommodate the scheduling of witnesses, (i) the Committee meet during the weeks of March 4 and 11, 2024, if necessary, and (ii) if the number of witnesses proposed under clauses (a)(i)(H) and (b)(i)(B) warrant, the Joint Chairs shall convene a meeting to discuss prioritizing their respective scheduling; and
(d) in relation to the Committee's draft report:
(i) the Committee suspend its work on the current draft report,
(ii) the analysts be directed to prepare a second draft report, incorporating the information and analysis set out in the Federal Court ruling, along with the evidence received under paragraphs (a) and (b),
(iii) members of the Committee may, after the Committee has received evidence under paragraphs (a) and (b), submit draft recommendations and conclusions for the draft report, including those which may have been negatived by the Committee on May 16 and June 6, 2023, where reconsideration may be warranted in light of the Federal Court judgment or the evidence received, and
(iv) the Committee work toward a goal of tabling its final report by June 21, 2024.
Chair, this is a very comprehensive motion. It covers off a number of things and I believe very succinctly identifies some of the areas where I think the committee needs to go in preparation for a fulsome study of and conclusion to this particular event of the invocation of the Emergencies Act.
Now, if we look at the reason why we're here, in following along with the purpose behind our committee, the Mosley decision reflects exactly some of the areas we need to cover off. Was this legal? Did they follow the rules of law? Was it charter-compliant? Those are all things that we need to examine as a committee.
Just for everyone's reference, the Federal Court I think provided a very succinct review. I was particularly pleased with how well it was presented and provided clarity: not just that he made a decision, but he provided a rationale for the decisions, and I think they were very sound. I want to take just a moment to refresh our memory on what those decisions were.
On January 23, the Honourable Justice Mosley of the Federal Court issued his decision:
...Four groups applied for judicial review of the decision by the Governor in Council...to declare a Public Order Emergency under the Emergencies Act.... The February 14, 2022 Proclamation Declaring a Public Order Emergency...and the enactment of temporary special measures in order to deal with protests in various parts of the country—which included the occupation of the downtown core of Ottawa and blockades of ports of entry—were under review. This was the first time [that] the Act was invoked since its enactment in 1988. The Proclamation, the Emergency Measures Regulations...and the Emergency Economic Measures Order...adopted under the Act had a three-fold impact: a) they prohibited a range of activities relating to protests in designated areas, b) they required third parties to assist the police in ending the protests and c) they authorized financial institutions to disclose information on designated persons and entities to federal officials...to suspend their accounts. The Applicants [and] Parties raised issues which [led] to the following...questions: 1. Was the Proclamation unreasonable? With respect to the first question, the Court considered the decision under the reasonableness standard of review and concluded that the answer was yes, the Proclamation was unreasonable and illegal (“ultra vires”)....
That is really a term that means “to act beyond one's authority or power”.
It continues:
While the Court recognized...the occupation of downtown Ottawa and the blockades of the ports of entry were matters of serious concern calling for government and police action, the threshold of national emergency required by the Act was not met. Under paragraph 3(a) of the Act, a national emergency is an urgent and critical situation that exceeds the capacity or authority of the provinces to deal with it, and that cannot be effectively dealt with under any other law [in] Canada. The Proclamation applied the temporary special measures in all of Canada's provinces and territories, despite the lack of evidence that it was necessary. Apart from the situation in Ottawa, the police were able to enforce the rule of law by applying the Criminal Code and other legislation. While the conclusion [of] the Proclamation was illegal...[it] was sufficient to dispose of...applications, the Court addressed the other issues should it be found to have erred in its findings on the first question. ...the Court considered the threshold for “threats to the security of Canada.” Section 2(c) of the Canadian Security Intelligence Service Act...defines threats to the security of Canada as “activities...directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.” Under [section] 17 of the Emergencies Act, the [Governor in Council] required reasonable grounds to believe that the standard set out in section 2 of the CSIS Act had been met. The evidence in the record before the Court did not support a finding that the impugned activities reached that threshold.
The second question that was asked was:
2. Did the powers created by the Regulations and the Economic Order violate sections 2(b)(c)(d), 7 or 8 of the Canadian Charter of Rights and Freedoms, and, if so, could they be saved under section 1 of the Charter?
Concerning the Charter, the Court found that the Regulations infringed the guarantee of freedom of expression under s. 2(b), as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace.
The Economic Order infringed s. 8 of the Charter by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts.
The infringement of sections 2(b) and 8 of the Charter were found to be not minimally impairing, and could not, therefore, be justified under s.1 of the Charter.
The Court found that there was no infringement of the rights to freedom of peaceful assembly and....
So that particular piece of the charter was not found to have been breached.
I think it's important to recognize that, while Justice Rouleau had a role to play in his presentation of the evidence, we don't have a lot of the 250,000 documents that he said he saw. We're never going to see all of them, but he relied on 7,000 documents to write his report.
Commissioner Rouleau, in justifying his decision to support the government's invocation, did say that the evidence was underwhelming and that any other person presented with the same evidence could reach a completely different conclusion.
That didn't leave me with a lot of confidence back in the day. I've spoken about that at this committee, about how his decision did not leave me with confidence.
On the other hand, Justice Mosley's decision from a high court in this country has provided me confirmation that there was an appropriate judicial review of the act and the use of the act, that it was found to be illegal in this circumstance, and that there was a breach of the charter.
It begs a number of questions. The committee's role is to do a number of things. One of the things Mr. Beatty, our very first witness at this committee, said was that our role was to look at the act and to ensure it was adjusted so no other government could invoke the Emergencies Act under exactly the same circumstances again.
Beyond that, we asked for a charter analysis, which we never got. It was “trust us—we've done it”. We never did see it.
Justice Rouleau made a comment that it was unfortunate that the government had chosen to keep its broader interpretation to itself. Mosley spoke about that, about how we were just supposed to trust them, a number of times in his decision. Well, the Canadian public has lost trust with this decision.
The motion has a number of different components to it that speak to the need to have certain people here as witnesses, the need to have documents. Again, this is not a new phenomenon for this committee. We've asked for the documents the government relied on to make its invocation, and we haven't gotten them.
In fact, It's quite telling that the government has refused, at all levels, to allow some of these documents to be released, and I think it's unfortunate.
The other issue before us, which was left over from our meetings in the fall, is the issue of translation. I don't know how we're going to solve that completely. My personal opinion is that we need to come to some compromise on how to make that work and make it work fairly for everyone. I'm certainly open to conversations about what that might look like.
Again, the motion as presented deals with the report as well, where we need to go with the report and the information we need to include in the report moving forward, with the goal to correct it.
As I look ahead at our calendar, I think our longest task will be to develop recommendations to address some of the gaps in the current legislation that we might be able to fix. Hopefully, we can do a lot of it as a committee and then have a report done. If there are dissenting reports, then there's time to get those in as well.
I am certainly open to debate on this.
I will acquiesce my time to the next speaker, Chair.