Declaration of Emergency Committee on Feb. 13th, 2024

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin (Rivière-du-Nord, BQ)), Bloc, Rhéal Fortin]

I call the meeting to order.

I would like to welcome you all to the 28th meeting of the Special Joint Committee on the Declaration of Emergency, which was established pursuant to the House of Commons order of March 2, 2022 and the Senate order of March 3, 2022.

Today's meeting is taking place in a hybrid format, pursuant to the orders of the Senate and the House of Commons.

To ensure that all members of the committee can participate fully in the meeting, please inform me of any technical problems so that we can suspend the meeting for a few minutes if necessary.

The committee is meeting this evening to consider its future business.

I should point out that the sound tests were carried out with Mr. Naqvi, who is attending the meeting online. The clerk has confirmed that everything is in order.

We are therefore ready to begin.

Mr. Motz, you have the floor.

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

Thank you very much, Chair.

It's nice to see everyone again for this meeting.

There have been significant developments since the last time we met, specifically with the Mosley decision. I'm prepared to move the following motion, duly placed before the committee:

That, in light of developments since the Committee’s most recent meeting, including a Federal Court ruling—

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

On a point of order, Mr. Chair.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Mrs. Romanado, you have the floor.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

I would like to know whether the order in which motions are moved should follow the order in which they were tabled. I think mine was tabled before Mr. Motz's. Since I'm a new member of the committee, I just want to check how the committee normally works when it comes to motions.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

That's a good question. My reflex is to give the floor to those who ask for it as they go along. You are on my speaking list; the clerk told me that you raised your hand after Mr. Motz.

I may be wrong, but as far as I know, there are two motions on the table: yours and Mr. Motz's. I have no objection to dealing with one or the other first. That said, since Mr. Motz raised his hand first, I gave him the floor. We'll proceed accordingly, if you have no objection.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

It's fine. I just wanted to clarify how the committee works, since I'm a new member.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you.

Do you have a point of order, Mr. Brock?

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

I'd like to be put on the speaking list. Thank you.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Okay.

Mr. Motz, you have the floor.

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

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.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Mr. Motz.

Mrs. Romanado, you have the floor.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much, Mr. Chair.

I really like my colleague's explanation.

As I mentioned, I too am new to the committee, and I too want to see if we can find a path forward. That is why I brought forward a motion that I think captures the two issues at hand. One is the importance of documents being translated in both official languages. On the other, obviously our colleagues have great interest in the Mosley decision. That's why I put forward the suggestion to have the two ministers who are responsible brought forward to come and testify here before the committee.

In those aspects, I am in support of the path forward. I was not involved in this committee and the incredible work you did and the meetings you had. I have read the documentation from all of the meetings that happened prior, and I did read the draft report that you're working on. I think if the goal is for this committee to do the work that we were mandated to do, based on the legislation that actually created this committee, Canadians are expecting us to submit that final report.

I believe we are there. I don't believe we need to revisit having all of the same witnesses come back based on the fact that a court has found, with the Mosley decision, something that the Conservatives were of course in support of. I brought forward a compromise in terms of bringing a path forward and opening that conversation—I think we have 12 meetings scheduled between now and June—on how the committee can find a path forward in terms of addressing the question of translation and addressing the question of, okay, while outside the scope of the mandate of this committee, with respect to the Mosley decision, how do we get further explanation? I think it's the will of the opposition to hear from the two ministers who are involved.

That is why I put a good-faith motion forward. I'm hopeful that we can come to some common ground here and move forward in a positive way so that we can issue that final report.

Thank you.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Mrs. Romanado.

Mr. Brock, you have the floor.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Mr. Naqvi has his hand up too, on the screen.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Mr. Naqvi is indeed on my list.

Senator Harder, you also raised your hand. So I'm going to add your name.

You have the floor, Mr. Brock.

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

Thank you, Chair.

Welcome, Ms. Romanado.

Mr. Maloney, welcome to our committee.

Senator Smith, welcome. You're new and we've all been hearing evidence and discussing these issues for what may seem a daunting length of time, but these are important issues.

First, there are some takeaways I want to highlight. I certainly will try not to repeat the comments of my colleague Mr. Motz. We also would like to come to a conclusion sooner than later. I believe there is a path forward to doing that by the end of this session sometime in June. When this particular committee began its examination of the invocation of the act and the circumstances surrounding it, while we had heard rumours that there might be a charter challenge, we didn't know what that would look like and we didn't know what the results would be, but we certainly had that at the back of our minds moving forward.

I also want to highlight the issue of witnesses. Back in December 2022, with a tie vote—and in this particular committee a tie vote results in the defeating of a particular motion—a motion was brought by the Conservative team to extend the study to call further witnesses who we had deemed would provide relevant information. The vote was five to five, so by no means did that vote indicate a strong majority preference, in my view, to shut down the possibility of hearing from further witnesses.

We lived by that decision and we then instructed the analysts to prepare a review of the material and to provide us with draft reports. We are now in draft version number three.

During that time frame, we had the Rouleau commission. I want to highlight that although it's statutorily mandated that a commission be launched during the invocation of the act or following the invocation of the Emergencies Act and although it was presided over by a justice—a Superior Court justice—the mandate of Justice Rouleau was not to provide any charter analysis of the legality behind the invocation of the act. That legal mandate did not exist, and I think in his wisdom, Justice Rouleau definitely shied away from making legal pronouncements because he knew that ultimately this was a matter that was going to be studied and argued in the Federal Court. At this point, two institutions, as outlined in our particular motion, have launched a charter challenge—the Canadian Civil Liberties Association and the Canadian Constitution Foundation.

Justice Rouleau, as my colleague indicated in his opening remarks and in the report itself, made it abundantly clear that there was no overwhelming evidence that would have led him to conclude that there was legal justification for the Liberal government's invoking of the act given the circumstances present primarily in downtown Ottawa and secondarily with respect to some of the border crossings in Alberta and in Windsor, Ontario. He made it clear that reasonable people who had the ability to review all the evidence he had heard could come to a completely different conclusion than he did. I highlight the word “evidence”.

This segues to the concern that our francophone members have on this committee, that the submissions and evidence heard at the Rouleau commission were not translated into the other official language, which has compromised the constitutional right that all members have in this House and in the Senate to receive information in both official languages.

The motion was drafted in such a way that we don't want every single submission or piece of material officially translated into the other official language. It would take years to do that. I think we received a figure, in terms of the cost analysis, of well over $300 million. At one point, this committee said that sounded like a daunting task, and given the financial crisis we have in this country, the affordability issues, and the thousands of families who are literally one paycheque away from insolvency, we have to be prudent stewards of taxpayer money.

So that, in my opinion, would not be a proper exercise of our authority. We talked about perhaps just getting the index translated, such as an index indicating how the arguments were presented so that we could identify who said what, and maybe an index of the 2,500 potential exhibits. That price tag was $5 million or $6 million, which was another extraordinary expense that could not be justified under any circumstances.

The motion is drafted as such so that we can hear from individuals to perhaps give us the answers we seek without going through the expense. I can't speak for my colleague and chair Monsieur Fortin, but I can speak on behalf of Senator Carignan. He's certainly on the speaking list, and I don't want to take away his submissions, but I think that was a reasonable compromise.

I appreciate your approach, Ms. Romanado. I think we're not too far off in terms of where we both see a pathway to proceed with, but I think it's incumbent on us as parliamentarians and senators to give value to Canadians.

This was an extraordinary time in this country during the pandemic and the response to the pandemic by the convoy and the supporters of the convoy who descended here in Ottawa. But I think it's a reminder to us all that we are a country of law. We are a country of order. We don't interpret the laws to fit what we believe as a government, a narrative that's not supported and grounded by facts and not supported and grounded by the legislation.

The legislation in the Emergencies Act was abundantly clear. It could not be more clear that the definition of a national emergency was the same definition as defined under the CSIS Act. It did not say anywhere “or as other interpretations may be available” or “or as other circumstances may be available”. The law was black and white. It wasn't grey. That's what we expect in this country.

As drafters of legislation, we use our best skills and resources to provide clarity with the law. Sometimes we get it right and sometimes we get it wrong. Courts and appeal courts, and ultimately the Supreme Court of Canada, will weigh in if we do get it wrong. In this particular case, as my colleague Mr. Motz has indicated, we heard from Perrin Beatty, who was a cabinet minister and primarily the architect of the Emergencies Act.

As we all know, the Emergencies Act was designed to replace the War Measures Act, which has significant flaws in terms of trouncing the civil liberties of Canadians, and there was a mandate to do better. It was a mandate to create the strongest, most powerful law available to a national government in times of true national emergencies.

Through resources that may not be wholly available to this committee, I've certainly been privy to resources from the government itself, indicating that there was even a consideration of the invocation of the Emergencies Act at the outset of the pandemic—frightening and disturbing on so many levels.

Then we had evidence very early on of then minister Lametti, the most powerful legislator and lawyer in this country, jokingly opining with Minister Mendicino on day two of the convoy, "Let's bring in the tanks." Appalling—it was a joke, but it was an appalling remark.

I have defended, and I will defend with my last breath, as a member of the Law Society of Ontario, the Charter of Rights and Freedoms.

While the Charter of Rights and Freedoms is drafted in such a way that these are not absolute rights, they are enshrined rights, and they are valued rights; the right to freedom of expression, the right to peaceful assembly, the right to be secure against unreasonable search and seizure.

All of this ultimately came to a head with this Liberal government, notwithstanding that the Ottawa Police Service, as well as the City of Ottawa municipal government, directed the convoy truckers to park on Wellington Street, directed that there be an off-site location for the supply of materials to run back and forth. All of this was planned. It was organized. There was discussion between legal authorities and the truckers.

One thing that no witness has ever been able to answer—and if I asked it a half a dozen times, I probably asked it two dozen times—is at what point in time and at what event this lawful exercise of the freedom of expression and assembly, as directed by legal authorities, became unlawful. No one could answer that. The only thing I could surmise is that it became inconvenient to the government.

It was certainly inconvenient to citizens in downtown Ottawa, the smell of diesel, the noise, the commotion, but according to Justice Mosley's decision, that's not a national emergency. That's what protests are. Protests can be loud. They can be uncomfortable. They can be a nuisance, but it doesn't rise to the high, legal threshold of an national emergency.

All I ever heard, both from parliamentarians and from Canadians, is that this was required; that lawful, legal measures were simply incapable of dealing appropriately with the removal of this blockade. There's contradictory evidence, and I'm not going to get into that. The evidence is already on the table on that issue.

More importantly, what we heard from the Prime Minister, Marco Mendicino, David Lametti, Minister Freeland, Minister Blair and probably the entire cabinet bench, was that this was necessary, lawful and had legal justification; it was charter-compliant.

When we asked for evidence of charter compliance, they said, “Oh, you can't have that. That's protected by cabinet confidentiality,” or, “You can't have that, Mr. Brock. That's protected by solicitor-client privilege.”

The Prime Minister had no problem waiving privilege and confidentiality with Justice Rouleau, save for the legal opinion that they received from the Department of Justice, which would have laid out under what legal authority the Prime Minister and government could invoke that act. They would not share that, even with Justice Rouleau.

I remember this exchange because I watched it live, and I read the transcript. We heard the chief testimony of David Lametti, the former justice minister, and the cross examination. As judges often do and are entitled to do, Justice Rouleau questioned the witnesses.

Justice Rouleau—I'm not quoting word for word here—essentially said, “You're not going to give us the legal opinion that justified your use of the invocation of the act. Do I simply have to accept your opinion that it provided you with the legal authority?” and David Lametti said, “Yes, take my opinion.”

He could be right, but also could be wrong. I think it's important that we have access to that legal opinion, which is why we set it out in the notice of motion.

Ultimately, the government telegraphed, literally within minutes, an intention to appeal Justice Mosley's decision. He's a very senior justice of the Federal Court—appointed by a Liberal prime minister, I might add.

Other significant decisions that impact the lives of Canadians are taken under advisement. The government examines all of the circumstances behind the decision and weighs its options before considering whether or not to appeal, but not in this case. It was literally a jackrabbit response.

“He got it wrong,”—we heard that from our new justice minister—“He committed judicial errors.” I'm sure that at that point our justice minister hadn't even read the full decision. It was a very lengthy decision. I would be surprised if he had the time to read the decision in full before he quickly pronounced himself on all of the judicial errors that Justice Mosley made in his decision. This again was parroted by the Deputy Prime Minister and many other ministers—“There are justifiable legal errors that we can appeal.”

If they hold true to their word—and they will appeal this decision—ultimate, the appellate court, be it the Federal Court of Appeal or the Supreme Court of Canada, is going to hear from Department of Justice lawyers as to what legal advice they gave to justify the invocation of the act.

It's eventually going to come out. If it's going to come out eventually, in this promised appeal, then let us share this with parliamentarians, with committee members and with Canadians, because they have a right to this information, as do we.

I've gone on long enough. I know other members want to talk. I don't want to sit here until 9:30.

I'm going to cede my time to the chair.

Thank you very much.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Mr. Brock.

Senator Carignan, you have the floor.

[Claude Carignan, Senator, Quebec (Mille Isles), C]

Thank you, Mr. Chair.

Especially for the new members, who weren't there, I think it would be good to recall what happened, particularly on September 22, 2022. We wanted to call a number of witnesses, including the Prime Minister. In its wisdom, the committee said that this would double the work. We wondered why we should call witnesses who, in any case, had to appear before the Rouleau commission and a House of Commons committee. So we decided to put forward a motion to have all the evidence presented to the Rouleau commission or the other committee tabled here, before us, so that we could take it into account.

It's important to say this because we can see that it's not possible to use all the evidence from the Rouleau commission. The spirit of the motion is therefore to call certain witnesses given that we can't use the Rouleau commission's evidence because we asked for it to be translated.

At one point, we realized that the documents had not been translated. When I say "not translated", it's not just the French speaker in me who's talking. The French evidence is not translated into English either.

Dear English-speaking colleagues: if you say that you don't understand French, but that you think you have all the evidence even though some of it is in French, I'd be a bit embarrassed if I were you. This applies to both French and English speakers. A large proportion of documents are not translated into French when filed in English and are not translated into English when filed in French.

We therefore wrote to the Privy Council Office to request that these translated documents be sent to us. After several months, the Privy Council Office replied that it would be complicated and time-consuming. Instead of telling us that from the outset, they waited until we finally pressed them several months later with a letter from the chairs asking them to tell us when they would send us the documents. It wasn't us who took a long time, but the Privy Council Office, only for us to learn just before the holidays that it would be a mammoth task.

We reached a compromise by asking them for an index so that we could at least tell them which documents we wanted translated. They told us that it would take over a year to provide us with the index alone and that it would cost millions of dollars. We were told that translating all the evidence would cost $300 million and take years.

So what should we do? Initially, our intention was to hear more witnesses.

We reduced the number of witnesses by saying that we would use the evidence from the Rouleau commission. However, this is impossible. I worked with my colleagues to create a list of witnesses and documents, a modus operandi, to be able to hear from witnesses we wouldn't have needed to invite if the Rouleau commission documents had been translated; to produce the documents we'd like to have; and to provide us with a framework in which we could feel comfortable.

What is written at the bottom of the motion violates my constitutional rights. I won't let it pass. I will certainly make it a question of privilege in the Senate. I refuse to allow us to do committee work without having access to witnesses and documents we are missing in both official languages. We need them.

I have a great deal of respect for our new colleague, but her motion does not address the issue of translation. All it does is say that we're going to call in the Privy Council Office and ask them to explain what's going on. They've told us. They are going to come and explain to us why it is costing $300 million, but then what are we going to do next?

How am I going to get my evidence? We have to bring in the witnesses and find a way to determine, at the very least, which documents we consider important so that they can be translated and so that we have them in both official languages. Without that, we'll only be able to do part of our work. Moreover, our constitutional rights will be violated.

I think the motion we have put forward suggests compromises and makes it possible to establish a modus operandi. It may need a bit of fine-tuning or tidying up, and perhaps some clarification, but we need it to complete the report and respect the spirit of the September 22, 2022 motion, in which we said that we would not hear witnesses. Now we have no choice but to hear them. They have to be heard and the documents have to be in both official languages. As we know, the work of all parliamentary committees must be done in both official languages.

As for the Rouleau commission not doing its job, I've already lodged a complaint with the Commissioner of Official Languages, and that complaint is under investigation. I have lodged another complaint with the Privy Council Office, which is also being investigated by the Commissioner of Official Languages. This will ensure that this does not happen again in the future. I hope it won't happen again with the Hogue commission. To do the work required, we need evidence and documents in both official languages.

If a member of the committee who doesn't understand French tells me that he can read a French document that has not been translated and that he will take that into account in the report, it's really problematic.

Thank you.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Senator Carignan.

Mr. Maloney, you have the floor.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Chair.

I'm also a new member to this committee. I don't have the benefit of having sat through the many meetings of testimony provided, and you've discussed all of these other issues, so I sometimes think this might be a useful perspective, because I'm a fresh set of eyes—although I'm sure some will disagree with me.

Senator, I am one of those people who does not speak French, one of my many regrets in life, so I will need the benefit of translation. I agree with you, sir, that we must do things and conduct ourselves in a bilingual fashion so that resources are available to all. Thank you for pointing that out.

I'm going to address something Mr. Brock said. If I look at the Emergencies Act and what this committee is doing, it's meant to be a contemporaneous review following the invocation of the Emergencies Act, not to review whether or not it was appropriate to invoke it, but to review the exercise of the powers and performance of its duties. Mr. Motz said in his submissions that the report needs to address gaps in the legislation. From what I've seen, read and heard, we're in a position to do that now.

There's a certain amount of irony in my mind when Mr. Brock welcomes Ms. Romanado, me and Senator Smith to the committee. Combine that with the motion when you're bringing in all of these proposed witnesses under all sections of the motion, because it sort of flies in the face of the contemporaneous notion.... Some of these people have retired and some of these people are now ministers—in fact, former members of this committee. If we proceed in the fashion that you are proposing in this motion, I suspect the three of us won't be the last new members who join this committee and have to get up to speed on this.

We have two issues at hand. One of them is the documents and dealing with the bilingual issue and getting them translated. I disagree with the senator's position, again because Ms. Romanado's motion does address that issue. We'll have people from the Privy Council who come in here, and that does not foreclose having other witnesses, but it gets us to a place where we need to be to understand why they are telling us what they are telling us in terms of costs, time and whatnot. I don't think anybody will agree that it's a good idea to spend all of those years waiting for translated documents.

Also, if I look at this motion, it occurred to me as I was looking at it that paragraph B(ii) says, on one of the witnesses they're proposing to call, “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...”.

If I read that correctly, what's being proposed is that you bring in people who submitted documents in only one language and have those witnesses come here and testify, to what end I'm not quite sure, except that we want to make a decision based on that evidence to then decide which documents we want to translate. That seems a bit like chasing my tail, to be completely candid with you, and doesn't seem to be a productive exercise, because I don't think it will get us any closer to getting those documents translated than where we're at right now. My suggestion would be that we look closely at Ms. Romanado's motion and deal with the two issues at hand.

The other thing about this motion is that Mr. Brock talked about the Mosley decision and Justice Rouleau. I suppose I could sit here and pontificate about who was more senior at the bench and whose career was stronger and whose opinion I will put more weight on personally, but I don't think any of you would want to hear it, and it wouldn't be particularly useful or productive.

That's not our job either: We're not a Court of Appeal. We have a very specific task to do in a very limited time frame, and we're past that time frame. Part of their motion suggests that this report that we're going to deal with be done by June of 2024. It's not possible, because this appeal probably won't even be perfected by June 2024, let alone a decision.

Otherwise, why don't we just all agree? Let's reconvene after these appeals are exhausted, whether it's the Federal Court of Appeal or the Supreme Court of Canada, and then we can review all of the evidence that was put before these.

It's an absurd assertion, I realize, but that's sort of where we are. We have a job to do.

I would suggest we take the information we have. We have the two witnesses proposed by Mrs. Romanado, and we're going to address some components of the Mosley decision.

I don't know whether new evidence will be allowed on the appeal, Mr. Brock. I suppose somebody could argue that, but I don't think it's realistic to expect that there is going to be evidence put before an appeal court that wasn't heart at first instance. There was a suggestion that some of the documentation with respect to the justification for the invocation might appear before the court, so it's going to have exactly the same documentary record and appeal that it did at first instance, so that won't offer any new insight.

My view is that we should move quickly, move to Mrs. Romanado's motion, and deal with the two issues at hand, recognizing the time constraints we have, and the physical constraints we have because of the documents.

Thank you, Mr. Chair.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Mr. Maloney.

Mr. Naqvi, you have the floor.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

My apologies that I am attending this meeting virtually, given my parental duties.

I am one of the members who have been part of this committee from the get-go. I have sat through hours and hours of meetings with similar conversations with witnesses, and hearing their perspectives on what happened.

As I read the motion tabled by Mr. Motz, I am inclined to think this is an effort to have this committee act almost as de novo just because of a decision from a court on first instance only.

In my view, this motion is too broad. We have already heard from most of these witnesses. That information is available to us to do our job, and just because we have one decision from a trial division level does not give us enough reason to start all over again.

Not to mention, as I am hearing my colleagues speak, especially from the Conservative side, that I am again reminded that they're attempting to go beyond the scope of the legislation.

I remind members of this committee to look at subsection 62(1) of the Emergencies Act that outlines very clearly the scope of this parliamentary review. By Mr. Brock's assertion, if Justice Rouleau were not required, under the act, to look at the issues of constitutionality, I would suggest to you, if you look at the wording in subsection 62(1), nor are we asked to look at the constitutionality of the matter.

We have the Rouleau commission before us. We have that extensive report, and we also have a decision by a Federal Court trial division.

What we need to focus on is Mrs. Romanado's motion, which presents a far more credible path in terms of inviting both the Justice Minister and the Minister of Public Safety, so that we can hear their perspectives as to the Mosley decision. We can then hear from the Privy Council to better understand the issues around translation, and collectively come up with a path that will allow us to bring this committee to a conclusion with a report that will serve the best interests of Canadians.

It's quite obvious that we may have more than one report on this matter as this has been part of this committee for almost two years now, and we are hearing people present their views, and that's okay. I think that people are entitled to do so, but let's get to the point where we can share our perspective with Canadians, given the amount of work we have done. However, going back in circles and starting anew is not going to serve that purpose. I think we will be providing a disservice to Canadians.

Thank you, Mr. Chair.

[The Joint Co-Chair (Mr. Rhéal Éloi Fortin), Bloc, Rhéal Fortin]

Thank you, Mr. Naqvi.

Senator Harder, you have the floor.

[Peter Harder, Senator, Ontario, PSG]

Thank you, Mr. Chair.

I'm going to be relatively brief even though the cameras are on.

We are now entering almost our third year in this committee. It had been my hope, for those of you who have joined subsequently, that we would report before Rouleau finished his report. You realize how naive my wishes were, but I viewed the work of this committee as rather limited and, indeed, you could argue whether or not this committee should have been formed at all, but that's another matter worthy of debate.

We are not an ongoing commentary of all of the actions taking place in other streams. Rouleau had his mandate. We've now had one trial division judge. We still have a class action suit. Are we just going to continue to sit and to pick out parts of whatever legal processes might be in place to reinforce our biases or our views? I don't think we're going to change views in our discussion, frankly. They haven't changed in two years, so I don't think that's going to come.

I think we really have to figure out: Do we want to finish or not? I oppose the motion before us because, frankly, it's a motion purporting to bring conclusion but will ensure conclusion never takes place. I would rather see us go forward in the spirit of what member of Parliament Romanado has suggested: to open it up, yes, for some additional witnesses, but we were so close to finishing our report and making our contribution, which isn't the last word, by any means.

On the issue of translation, I'm not sure I agree with my Senate colleague, as much as I respect him, that it is a constitutional right to have every document of every commission translated. The Privy Council Office has said that the actions of Rouleau in terms of translation were compliant with the Official Languages Act. That's our obligation to ensure. If there are other legal processes that will define whether or not that is adequate, God bless, go forward, but I think it's a tactical manoeuvre to prevent us from concluding.

We have Rouleau's report—900 pages. Are we really thinking that waiting four more years to have more translation will change anybody's mind or even be read? I don't think so.

I would urge colleagues to put aside the processes we've put forward to kind of pretend as though we're wanting to move forward when we're ragging the puck, and to get more ambitious about concluding this committee, so that before we rise in the summer we've made our contribution, because I think that if we adopt this motion, you can guarantee that we'll be meeting until the end of this Parliament.