Declaration of Emergency Committee on March 29th, 2022

[Philippe Dufresne]

I would say administrative law provides for a range of possibilities when it comes to inquiries. In terms of specific cases, the body looks more like a classic administrative tribunal, so a quasi-judicial tribunal. In the case of a commission of inquiry into issues that are far-reaching, the process is more polycentric with different requirements around independence and impartiality. Earlier, we talked about the Inquiries Act, which provides for a certain regime. It's not the same in every circumstance.

[Claude Carignan]

Generally speaking, then, the person or group conducting the inquiry should come from outside the government, for example, a retired Supreme Court judge or someone who has previously led an inquiry.

[Philippe Hallée]

Yes, judges are traditionally chosen to carry out inquiries, as we've seen in the past. Normally, the idea is to look for the element of independence, and no one embodies that more than judges, so that is why they tend to be selected to carry out inquiries. That gives the process credibility. Conversely, if a deputy minister were to conduct the inquiry, it would present more complications from an independence standpoint.

[Claude Carignan]

Let's just say that the process wouldn't have the desired institutional independence or that the person might have an economic relationship that would make it hard for them to satisfy that requirement.

[Philippe Hallée]

I would say perception probably comes into play as well. I'm referring to the public's perception of the credibility of the inquiry process. The inquiry has to be carried out with full independence, and that's usually the quality judges bring to an inquiry.

[Claude Carignan]

Have resources been set aside to conduct the inquiry? It's one thing to ask someone to conduct an inquiry, but they need resources to look into the matter and determine whether the decisions that were made were the right ones.

[Philippe Hallée]

Funding is traditionally allocated for commissions of inquiry to do their work. Commissions oversee their own budgets. Access to resources that are entirely independent of the government poses challenges. Obviously, the money comes out of public funds. As Mr. Dufresne said, and rightfully so, various models are possible, depending on what the situation calls for. Some are especially complex, and we've seen examples of that in recent years.

[The Joint Chair, NDP, Matthew Green]

Thank you very much.

[Philippe Hallée]

In those cases, the funding—

[The Joint Chair, NDP, Matthew Green]

Thank you, Mr. Hallée. We will try to stick to the time.

We will give the floor over to Senator Harder.

[Peter Harder]

I cede my time to Senator White.

[The Joint Chair, NDP, Matthew Green]

Go ahead, Senator White.

[Vernon White]

Thank you very much. I won't use it all myself, but others will.

I'm trying to get my head around the meetings and private discussions, because, again, this appears to me to be an area that's very prescriptive. It says that every meeting of the PRC held to consider an order referred to in subsection 61(2) “shall be held in private”.

I'm trying to understand. I think you explained why that can be changed, but I can't see how we can come to a decision...why we're not in private now, to be fair. Explain to me how you think that's appropriate for this committee.

[Philippe Dufresne]

The act provides that certain regulations adopted pursuant to a declaration are going to be registered, published, in the normal course. That's what happened with the two regulations. Those are then tabled before the Houses of Parliament. That's where the process can take place if there's a motion to revoke.

Others will not be published. Generally, as was stated, it's because they deal with certain matters that would be prejudicial to the security of Canada and so on. They're not published. They would be referred to this committee, and then they would be looked at by this committee in camera to ensure that they remain confidential.

[Vernon White]

I don't know where it gives us the...“held to consider an order or regulation”, as an example. I'm just trying to figure out how we are stepping away from that, when we're here to consider an order like the invocation.

[Philippe Dufresne]

The orders that are covered by the in camera mandate are only the unpublished regulations and orders. The two that we have had issued so far are not those types of regulations. They were published in the Canada Gazette.

[Vernon White]

Okay. Thank you.

Next, I think one of you referred to proportionality. Would you agree that proportionality, how something was done, really would be a measure of an inquiry rather a measure of this committee? You're looking at before invocation and then what actions were taken. Our job is to look at what actions were taken.

[Philippe Hallée]

I think you have a good point. I think it could be in both, as a matter of fact, when you look at it. However, I would focus on the mandate of this committee. To me, there is an element of proportionality that you can look into, looking at the instruments that have been put in place: Have they been used in proportionality with what they were supposed to do?

In the context of section 63, the inquiry that I think you were referring to, that also could be something that the government in its inquiry will look into, whether the circumstances leading up to the declaration are sufficient, but it's a different element of proportionality, if you will. One is the proportionality and the exercise of the powers given by the legal instruments, in this case. The other one is whether the declaration itself is proportional to the circumstances leading up to the declaration of emergency.

[Vernon White]

I agree.

My next question is this. When you look at this legislation, do you believe it anticipated that the invocation would still be in effect when we were sitting? Is that the way you would read this—that we would be walking in step with the order that's still in place and asking the difficult questions about what's happening?

[Philippe Dufresne]

That's certainly a possibility that's contemplated in the legislation. It talks about regular reports while...for the duration of the declaration. It also gives this committee the power to revoke certain regulations. All of that would be during, but it's not only during.

[Vernon White]

It's certainly not that this committee, while the order was invoked, would be challenging the “why” it was invoked at the same time as we're looking at what is occurring while it is invoked. Obviously that's not what we would be doing.

[Philippe Dufresne]

I think what this committee is mandated to look at, in the language of the order and the act, is the exercise of powers and performance of duties pursuant to a declaration.

[Vernon White]

So that's day one and going forward. It's not day one minus one day or day one minus two; it's day one going forward.

[Philippe Dufresne]

I think you have the link to the “pursuant to the declaration”—

[Vernon White]

Look, at the end of the day I understand that we will make decisions, but I think it's important that for clarity, at least from your perspective, this is day one moving forward from invocation, not day one minus one or day one minus two. Is that right?