Evidence of meeting #3 for Declaration of Emergency in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was inquiry.
A video is available from Parliament.
7:15 p.m.
NDP
The Joint Chair NDP Matthew Green
Are you saying to add more time to the second round?
So that we're clear, you would still be the speaker for that slot.
Mr. Fortin, please go ahead.
7:15 p.m.
Bloc
The Joint Co-Chair Bloc Rhéal Fortin
If I may, Mr. Chair, I'd like to make a suggestion.
Since the time isn't divided the same way among the members in the second round of questions, I don't think it would be a good idea to simply add time to the second round, because that might put some of us at a disadvantage.
We could do another round with the same time distribution as the second round and then go back to the time distribution we used in the first round.
Anyway, it's not like we're doing an investigation and we have specific things to learn from witnesses. We're all here to learn more. I'm equally interested in the answers that Ms. Bendayan, Mr. Brock, Mr. Motz or Mr. Carignan will receive. We want to hear from the experts we invited to appear.
I therefore recommend that we do another round with the same time distribution we used in the second round. Then, if we still have questions, we can do another round with time distributed as it was in the first round.
7:15 p.m.
NDP
The Joint Chair NDP Matthew Green
The second round will have the Conservatives at three minutes, the Liberals at three minutes, the two-minute rounds for the remainder, and then we'll decide after that. Is that the wish of the committee?
7:15 p.m.
Some hon. members
Agreed.
7:15 p.m.
NDP
The Joint Chair NDP Matthew Green
Okay. We will carry on as planned, and we will go to Mr. Brock, for three minutes.
7:20 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Thank you, Mr. Chair, and thank you, gentlemen, for your attendance today, and providing us with some much-needed clarity and some direction. We really appreciate your legal experience and interpretation of this statute, which has more questions, ultimately, than clarity.
With the time that I have, I want to get to very specific points. I'll open it up to both of you to answer. If one of you wants to take the lead, that's fine.
Would you agree with me that the Emergencies Act sets out particular thresholds that must be met before the Governor in Council may proclaim a public order emergency?
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
There are definitions and requirements in the act, so I would agree with that.
7:20 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Would you also then agree with me that if those legal thresholds were not actually satisfied, the Liberal cabinet's subsequent exercise of powers and performance of duties and functions, or, put another way, the legislative authority delegated by Parliament to adopt sweeping and powerful regulations, flowing from the emergency proclamation, was, in lawyers' parlance, void ab initio, or, put plainly, null and void?
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
You're describing a situation of a legal test if it's not met. In the scenario of any piece of legislation, if there is a requirement to be met, and it's not met, then the statute has not been complied with.
7:20 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Would you further agree with me, given your interpretation of the scope of our mandate—ultimately, in my view, you both reach the same endgame in terms of a very small “l” liberal interpretation of the act—that the determination of whether a legal threshold was met, and the circumstances by which that threshold was met, would entirely be within the purview of this committee?
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
There is a difference between the role of this committee, or any committee, and the role of the courts. The courts will be called upon, in appropriate cases, to make those types of interpretations in terms of compliance with statutes and legal consequences.
In this instance, the committee has a mandate to look at the exercise of powers and functions, so in the context of this mandate, if the committee looks at the criteria, with respect to the orders and the regulations and so on, that's something that would seem to be within the mandate or the ambit of the review, but it would be distinct from the role of a court of law, which would make a finding of legal—
7:20 p.m.
NDP
The Joint Chair NDP Matthew Green
Thank you, Mr. Dufresne.
I'm sorry, but you're out of time. You'll be able to reclaim it, I'm sure, in the next round.
We will now go to Mr. Virani.
7:20 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
Thank you very much. I'm going to go quickly here.
Would you agree with me, Mr. Dufresne, that one of the principles of statutory interpretation is to read it harmoniously, and that the role of Parliament, which you mentioned in your opening statement, was exercised in section 58, when Parliament had a debate that was uninterrupted and then cast a vote about the continuance of the invocation of the declaration?
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Yes. That was part of the parliamentary supervision.
7:20 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
Once the invocation is made by the Governor in Council, it is ratified by Parliament, for want of a better phrase. We then get to a situation, such as in subsection 62(1), where the exercise of the powers and functions pursuant to that invocation are the subject of review by the parliamentary committee.
Is that fair?
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
That's the sequence in the process.
7:20 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
In Mr. Hallée's submissions, he said that when you don't have any current or ongoing regulations that are operative, some of the aspects of the parliamentary review aren't at issue, such as subsection 62(5) of the statute.
Is that correct, Mr. Hallée?
7:20 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
Can you tell me, is it also a fair principle of statutory interpretation—I believe you may have touched on this, Mr. Dufresne—to look at the intentions of those who were in Parliament at the time of enactment? It's in the same way, sometimes, you refer to witness testimony or the evidence in Hansard, to ascertain the intentions of the legislators.
7:20 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
The intention of Parliament is an element that's looked at in statutory interpretation, and courts, from time to time, will rely on Hansard debates and so on. They do so with caution, because it's not always easy to identify in one statement of one parliamentarian what the intention of Parliament is, but courts have done this from time to time.
7:25 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
I want to ask you something about reading a statute such that it is not just harmonious but prevents possible duplication or inconsistency.
Something that's troubling me is this: If you look at section 63, it talks about this retrospective but also contemporaneous piece, because it looks at the circumstances of the invocation, as well as the measures undertaken. Compare that to section 62, which talks about the measures.
What I'm curious about is, if we open up the section 62 piece—which this parliamentary review committee is doing—much wider than it seems to be written, we have the potential to have two simultaneous investigations into the same subject matter, which could render opposite results.
Is that something we should be alive to and trying to avoid?
7:25 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
I would say that in looking at Parliament's intention, you'd look at the act and you'd look at whether this is an outcome that Parliament would have wanted. Is this something that leads to a contradiction or something that it seems Parliament wanted to avoid? You'd have to look at the statute to find that.
7:25 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
To clarify, in response to Mr. Brock, you indicated that there are certain legal thresholds and analyses that are done by court, but we are a committee, not a court.
7:25 p.m.
NDP
The Joint Chair NDP Matthew Green
That's the round.
We will now go to the two-minute round of the second round. I'm handing the floor over to Mr. Fortin.
7:25 p.m.
Bloc
The Joint Co-Chair Bloc Rhéal Fortin
I only have two minutes, so I will go quickly. I apologize in advance for that.
I want to check one thing with you, Mr. Dufresne and Mr. Hallée. Section 63 stipulates that “the Governor in Council shall... cause an inquiry to be held”... Do either of you know who the Governor in Council could commission to hold the inquiry? Do you have an opinion on this?