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.
Law Clerk and Parliamentary Counsel, Senate
Yes, that seems to be the goal of the legislation. Is that what you're talking about?
NDP
The Joint Chair NDP Matthew Green
We heard reference to the debates that happened within the House after the confirmation of the act, and I think it is safe to say that the order of the House on March 2 clearly provides an intention that this process be a retrospective and retroactive process, looking back later, not during, on the powers that were granted. That is an obvious statement. Is that right?
Law Clerk and Parliamentary Counsel, House of Commons
I think the order of the House indicates that the House mandated this committee to do its work beyond the date when the declaration was revoked, but it nonetheless used the mandate language that's been discussed today, with reference to the exercise of powers pursuant to the declaration—
NDP
The Joint Chair NDP Matthew Green
—but in an obvious observation, that was after it had already been confirmed and revoked within 48 hours.
Law Clerk and Parliamentary Counsel, House of Commons
That's right. The March 2 order occurred at the end.
NDP
The Joint Chair NDP Matthew Green
When we are talking about the intention that set the orders of the House that would give us parameters, we would enter into this with the understanding that it was a retrospective contemplation of the orders, and thus would require information that may not have been available at the debate. It would be safe to say, given the prescriptive nature of our being sworn in to see certain documents that might not be made available to the public, that in our consideration of the proportionality of the orders carried out under the act, we would be doing it with a deeper contemplation than would have been had in the House in debate. Is that safe to say as well?
Law Clerk and Parliamentary Counsel, House of Commons
All I can say is that the House order on March 2 reiterated the mandate of this committee and gave instructions to this committee to look into a review of the exercise of powers and performance of duties.
On your reference to information that would have come after as opposed to earlier, I don't know that the House order addresses that point.
NDP
The Joint Chair NDP Matthew Green
It is safe to say that 338 MPs weren't sworn to secrecy and provided with private and confidential information for the prospect of supporting the confirmation of the Emergencies Act.
I'll use myself as an example, to be fair, because I can speak only to my own intention. I made a vote confirming the invocation of the act, given the information that was made publicly available. Given that the House order was provided after its revocation, it's now my intention to retroactively reflect on the proportionality, including the circumstances leading up to the invocation of the act, to fully understand and contemplate the spirit and the intention through which the House sent us here.
I don't expect you to comment on my intention. I just think it's an important reflection that we separate the original drafting of this and its contemplation with the set of circumstances that are before us, given how unique this legislation is.
My time is up. We will now go back to the Senate side, and I would ask if it would be okay that we keep the same order. Is that fine with the Senate side for this round?
NDP
The Joint Chair NDP Matthew Green
With that being said, we will go to Senator Boniface, for four minutes.
The Joint Chair Hon. Gwen Boniface
Thank you again, and thank you very much for answering various derivatives of similar questions.
I want to pursue Mr. Fortin's comments, because I just want to be clear on subsection 62(3) and what the purpose of the oath of secrecy was, what it pertains to, and how that connects or doesn't connect to being in camera by necessity or legality.
Law Clerk and Parliamentary Counsel, House of Commons
Subsection 62(3) requires that all persons employed and all members take the oath of secrecy. If we look at the oath of secrecy in the act—and you have all taken it—it says, “I...swear that I will not, without due authority, disclose or make known....” I read this as, if it's an in camera discussion, discussed in confidence, that cannot be disclosed.
If it's a public discussion, then you have the authority to disclose it, because it has been done with the acceptance that it is a public discussion. That is how I would interpret the oath.
The Joint Chair Hon. Gwen Boniface
However, if I look at regular Senate committees, from our perspective, anything in camera would have the same rules.
I'm trying to understand the intentions behind the extra layer of the oath of secrecy in this act.
Law Clerk and Parliamentary Counsel, Senate
I don't think that this is an additional layer necessarily. We have a legislative scheme that has been put in place here, and the creation of a committee by legislation, which is really the prerogative of Parliament. The legislation can have it.
In creating that body, Parliament decided to have this safety aspect, if you will, that since the committee might have to look into some confidential information, then all of the staff and the members would have to take an oath. Otherwise, it could be something left to the committees to go with individually, at least on different sides of the Parliament.
In this case, it was to be consistent with the business at hand, if you will, that in some cases it might be confidential. So from the get-go, everybody will take an oath.
The Joint Chair Hon. Gwen Boniface
When you think about the committee's decision—and I understand it's the committee's decision—on the balance between what's public and what's in camera, the lens we'd be looking through is the type of information you intend to get from that particular witness or documents coming forward.
Am I understanding that correctly?
NDP
Senator, Quebec (Mille Isles), C
Thank you, Mr. Chair.
My question is about section 3 of the Emergencies Act, which states the following:
For the purposes of this act, a national emergency is an urgent and critical situation...that cannot be effectively dealt with under any other law of Canada.
Does “law of Canada” refer to federal laws, but also provincial laws, as well as orders or regulations adopted under the auspices of provincial or federal law, therefore the entire legal framework? This law applies in the event of a legal vacuum. In other words, emergency measures are being taken because the emergency cannot be dealt with using existing laws in the entire legal framework of Canada. Is that correct?
Law Clerk and Parliamentary Counsel, House of Commons
That strikes me as an accurate interpretation. It applies when existing laws in Canada, at every level, are inadequate to deal with the situation.
Senator, Quebec (Mille Isles), C
I see. Under Ontario's Highway Traffic Act, for instance, a towing company cannot be forced to tow a vehicle on Wellington Street.
Law Clerk and Parliamentary Counsel, House of Commons
I think that's the sort of question that arises. In other words, is it necessary to invoke the Emergencies Act or can other laws be enforced?
Senator, Quebec (Mille Isles), C
That brings me back to Mr. Fortin's question about the Governor in Council's inquiry.
In order to comply with public law, or administrative law, what features should the body, organization or individual conducting the inquiry have? Independence and impartiality come to mind, in terms of both the organization and the individual.