Declaration of Emergency Committee on March 29th, 2022

[Claude Carignan]

All right. I think that sums it up nicely. Thank you.

I have a second point.

We have a mandate to review the exercise of powers. There are many ways to do that. We can ask whether powers were exercised unreasonably or for inappropriate purposes, for example. I also understand that in reviewing the exercise of powers, we can look into the legal basis for taking on those powers. Take the freezing of bank accounts, for instance. We can look into what the legal basis was for those powers, because we do have the incidental authority to go and check whether or not the legal authority was there to exercise those types of powers. We're free to do that as part of our review of the exercise of powers, right?

[Philippe Dufresne]

I would say that the committee doesn't have the same role as a court of law would have dealing with these types of issues.

[Claude Carignan]

We still need to review those powers to determine if they were appropriate or not. If the powers were taken on illegally, that may mean they were exercised inappropriately.

[Philippe Dufresne]

That will definitely be part of how you interpret your mandate. You will be able to ponder these questions, that is, try to determine whether the powers were exercised appropriately, the situation in which the powers were taken on and whether it had been anticipated, while also keeping in mind the separate roles played by the committee and the courts.

[Claude Carignan]

However, determining the legal basis for the exercise of powers is part of reviewing the exercise of those powers, is it not? In other words, the authority to take on the powers and the manner in which the powers are exercised are part and parcel of the exercise of powers.

[Philippe Dufresne]

I think that's part of what led to this regulation being adopted, actually.

[Claude Carignan]

Okay. We're on the same page.

Thank you.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

We will now go on to Senator Harder.

[Peter Harder, Senator, Ontario, PSG]

Thank you very much, Chair.

I'm going to be on the same theme. It seems to me that you've given us good advice with respect to starting our consideration of scope with section 62. Your question of “how”, I think, is very relevant to us.

You've also opened up the door to “how plus”, in the sense of privilege and how the deliberations of the committee need to be informed by the preinvocation of the emergency in the context of what we were dealing with at the time.

Is that a correct interpretation? In other words, we should start with the “how” in the period of exercising the responsibilities, and only revert to earlier in the context of particular testimony or a particular issue emerging.

[Philippe Hallée]

I think that would be a good interpretation of the mandate. Indeed, it is to really look at the use of the power and how it has been used. Has it been used in proportionality? Has it been used abusively in the context that it was meant to address?

To have a better sense of the use of those tools, of course, indeed, looking into the broader context is sometimes essential. However, the main focus of the committee, as I understand it, is really to look into how it has been exercised.

[Peter Harder]

In that look back for context, I presume it's not to determine whether the House of Commons was correct in invoking the Emergencies Act.

[Philippe Dufresne]

I think you mean to say “whether the government was correct”.

[Peter Harder]

Yes, the government, but the House of Commons invoked it.

[Philippe Dufresne]

If we look at the inquiry's role, the circumstances and so on, if we look at this committee, we are focusing on the powers and the performance of duties and functions that took place. In the House's order, we're talking about during the declaration, when it was in effect.

[Peter Harder]

Yes. I think that's a very important point and one where section 63 is much broader in scope and in timeline for consideration.

In fact, concerning my final question, a close reading of the act would suggest that the parliamentary review committee would be functus with the revocation of the act.

Now, I know the mandate of this committee from the Senate and the House is otherwise, but the act itself would suggest that the review committee ceases its work with the revocation.

[Philippe Hallée]

Not quite. I think there is still a role, as I mentioned in my comments. There is a portion of the function of the mandate in section 62 that is not applicable anymore. You would not be provided with regulations to consider whether they should be repealed.

However, to look into whether those regulations that were in place, the instruments that were taken, were used effectively and reasonably in the context is still something that this committee can look into and report to both Houses.

[Peter Harder]

Thank you.

[The Joint Chair, NDP, Matthew Green]

Given the expediency of our friends from the Senate, we've actually reclaimed some time. I would like to put to members of this committee that we are running ahead of schedule and I would present perhaps two options—

My apologies. Thank you. I will now recognize Senator White, who can redeem the 11 seconds from Senator Harder, if he so chooses.

[Vernon White, Senator, Ontario, CSG]

Thank you very much, Mr. Chair. It's truly appreciated.

I feel like the “beating of the dead horse” person here, because I think we've gone through the same discussion, but it seems to me that section 62 is extremely prescriptive, and that's where we come in.

The inquiry, under section 63, has much more latitude for growth and can expand the role based on what the inquiry hears. Is that really what we're talking about here?

[Philippe Dufresne]

What we've been discussing is that the inquiry has a twofold element to its mandate in terms of the act: the circumstances that led to the declaration being issued, and the measures taken for dealing with it.

In terms of this committee, it is talking about exercise of powers, performance of duties and function pursuant to a declaration, and that this committee has certain powers, in particular when it's in effect. However, I think we have both said that if the committee feels that it needs to consider the context in order to do its work, then that falls within its mandate.

[Vernon White]

Understanding that we may wish some information to assist us, we're still limited back to those guardrails under section 62, regardless of what we want. This isn't about our wants, right? At the end of the day, we still are limited back to the guardrail of section 62.

I might not like how it reads, but it is pretty clear to me that we're back in the same room.

[Philippe Dufresne]

You would have to fit yourself into the language of the orders of the Houses, which talk about “exercise of powers” and “performance of duties and functions” pursuant to the declaration.

[Vernon White]

Thank you very much, Mr. Chair.

[The Joint Chair, NDP, Matthew Green]

The rounds have now gone a little more quickly than anticipated. When we first contemplated our routine motions, we understood our meetings would be held to two hours. We now are in a three-hour meeting.

The two choices that I would like to put to the committee are to either add more time to the second round or to take the order and provide a fullness of four minutes per person.

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

Add more time to the second round.