Declaration of Emergency Committee on March 29th, 2022

[Philippe Dufresne]

I would say that the work doesn't necessarily have to occur in silos, to use your expression.

The committee and the Governor in Council will have to do their jobs. They both have a mandate, and they'll have to determine the scope of their mandates, the work that needs to be done and the information that needs to be gathered, and then focus on that. Obviously, if we see that some of the work is being duplicated, then the committee and Governor in Council would be free to make adjustments. Having said that, they each have their own mandate and can conduct their inquiry as long as the scope of that mandate is respected.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Mr. Dufresne, I will give an example to confirm that I understand your answer.

If a witness appears before the committee and we need clarification of some of their answers, and that leads us to look into some things that might be considered part of the circumstances having led to the declaration being issued, will we not be permitted to ask those questions? Will this instead be handled on a case-by-case basis?

As you said at the outset, we're not working in silos, so we have no formal limitations on addressing issues that fall under either mandate, right?

[The Joint Chair, NDP, Matthew Green]

Mr. Fortin, thank you very much.

Of course, with any questions that are left unanswered....

We find ourselves in an interesting place. I'll just let the members know that, based on what we've passed, we'll actually fall a bit short, so we will have some time in additional rounds. Also, as has been suggested, there is the opportunity for the witnesses to provide, in reflection of this meeting, fuller answers to the best of their ability. We want to have a scenario in which we have as much information as possible to help guide the scope.

With that being said, we will go on to the next round, which is mine.

I am looking to my co-chairs. I am happy to pass the chair over, if that's....

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

I'll time it for you, Matthew.

[The Joint Chair, NDP, Matthew Green]

Yes, I bet you will, Glen, with a 60-second clock.

I have a clock here. Feel free to match yours to mine, and we'll take it from here. That being said, the clock has begun.

Mr. Dufresne, in your remarks you talked about legislative interpretation. I think you referenced the Supreme Court. My remarks reflected on a similar principle, that if legislation was “ambiguous”—and in fact, I said it so many times that I couldn't even pronounce the word correctly—we ought to have a liberal interpretation of it.

Would both of you care to comment on what I think is an important principle of law that we're wrestling with right now, since we have before us legislation that provides some ambiguity?

[Philippe Dufresne]

When we talk generally in terms of large and liberal interpretation—and we talk about that sometimes in the human rights context and in other contexts— we talk about what is the purpose and what is the interpretation that is going to support the ultimate purpose of the legislation.

As the Speaker of the House pointed to in his ruling on the interpretation of uninterrupted debate, I would point to the modern rule or principle of interpretation, that

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Those are all the things you look to, including—as was stated—the purpose of this legislation.

We know this legislation has a number of purposes, but one of them is parliamentary supervision and one is compliance with the charter and other instruments.

[The Joint Chair, NDP, Matthew Green]

Mr. Hallée, is there anything you'd like to add to that?

[Philippe Hallée]

No. I agree.

[The Joint Chair, NDP, Matthew Green]

With that being said, then, would it not be a logical conclusion that, given that the orders of this committee were presented and passed by the House after the conclusion of the Emergencies Act, we would be provided with the avenue via which a liberal and broad interpretation would allow for us to contemplate the preconditions leading up to the use of these powers in order to gain a kind of social and political context, given that we will likely be the only parliamentary intervention reflecting on this particular order?

[Philippe Dufresne]

What I'd say is that the anchor for the committee's work is going to be the language of the order and the language of section 62, so

The exercise of powers and the performance of duties and functions....

Some of them you may be able to do in complete isolation; many you may not. You may find that you need to understand and have information on the context and the circumstances that led to the exercise of those powers. Those are the types of questions you'll be dealing with.

[The Joint Chair, NDP, Matthew Green]

You referenced this being a starting point. In your contemplation of that phrase, what would that leave us open to in terms of our ability to adequately deal with the information at hand?

[Philippe Dufresne]

Are we talking about the exercise of powers and the performance of duties and functions? We mention the regulation. We mention the order. Then, to what extent will this committee feel that it needs to understand the broader scope of the circumstances in which those powers were exercised to assess the manner in which they were exercised?

[The Joint Chair, NDP, Matthew Green]

Mr. Dufresne, in closing, with 45 seconds left, how would you care to comment on proportionality? In order for the public to look at and reflect on what the government constituted over the course of the order, would it not make sense that proportionality would have to be contemplated through the preconditions leading up to the invocation of the act?

[Philippe Dufresne]

When we review the exercise of powers in the performance of duties, some of the questions will be what those powers were, what they were for, what the situation in which they were utilized was, and what the outcome was.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

I have eight seconds to go. I will call that a wrap.

I will hand the floor over to Senator Boniface for her intervention.

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

Thank you both very much for being here. It's really important in terms of clarifying how the act is interpreted.

Many of the questions I had in mind have been covered, but perhaps you can tell me a bit more about section 63, to do with the inquiry, because, as you said in your response to Mr. Fortin, they're not silos.

I know you can't speculate, but what would be the normal process of naming a commissioner to head the inquiry and so on? Would there normally be further information provided within that edict that would lay it out, or would the commissioner be in the same position we are, relying on a section in the act?

[Philippe Dufresne]

I'd hesitate to go too far in that direction, because this is really for the executive to assess, and for counsel from the Department of Justice. There's no prescription in this act, other than talking about causing a review, so is it going to be one under the Inquiries Act? If so, there are powers that flow from that, and there's a structure. Is it going to be something else? I don't know, so I wouldn't go further.

[The Joint Chair, Hon. Gwen Boniface]

For clarity, then, in the Inquiries Act, there will be certain specifics laid out that would guide the commissioner of the inquiry, or whatever title is provided.

[Philippe Dufresne]

It would provide the inquiry with some powers for subpoena and so on that it would be able to use.

[The Joint Chair, Hon. Gwen Boniface]

If you look at the two sections, as you indicate, would it then be wise for this committee to start with going to the core of section 62, as you say, the “duties”, the “powers”, and looking at that, in order to not go back to the House and find out that we've gone way outside of our scope? It's to focus on those, and then, as we work along, determine—to Mr. Fortin's point—that if you have certain information and you need the information in that regard to understand that piece, then you would do it then.

[Philippe Dufresne]

I think both of us have said here today that the focus on the regulation, on the order that was adopted, and how it was exercised and used, seems to be squarely within the language of the order and the language of section 62. Then, going beyond that, looking at the circumstances and perhaps what led to that, may still be within the ambit. However, if your starting point is the regulation—what it is, what it does, etc.—then it seems that you would be starting from the core of that mandate.

[The Joint Chair, Hon. Gwen Boniface]

Okay. That's good enough for me.

Thank you, Mr. Chair.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

We now have Mr. Carignan.

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

Thank you, Mr. Chair.

I've read the documents, listened to Mr. Fortin's question and heard your response, Mr. Dufresne. Just to make sure I understand, I'm going to rephrase what was said and you can tell me if it sums up your thinking.

Basically, you're saying that the Governor in Council must investigate the circumstances that led to the declaration, but that doesn't mean the committee can't hear evidence related to the circumstances to give itself more context and carry out its review of the exercise of powers. We can consider the circumstances, can't we?

[Philippe Dufresne]

Yes.