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, House of Commons
As I said earlier, the act does not prescribe a specific mechanism to be used by the Governor in Council. One possibility would be to use the Inquiries Act, but that's not required under the Emergencies Act.
Bloc
The Joint Co-Chair Bloc Rhéal Fortin
Would you agree that, under normal circumstances, no one investigates themselves, and no one chooses the police officer who investigates them either?
By implication, when we say that the Governor in Council, which is really the government, is having an investigation done, am I correct in thinking that the investigation should be done by a third party, that is, someone who has no connection to the Government of Canada?
Law Clerk and Parliamentary Counsel, Senate
The very fact that the government is creating a commission of inquiry proves that it can form bodies to investigate its own actions and ensure that it's done in a highly independent manner. We saw several examples of this not too long ago. As my colleague Mr. Dufresne said, this mechanism was used under the Inquiries Act. Other mechanisms have been provided for in a more specific way. The government always has the option to create a body to investigate its actions in a transparent manner, according to well-established rules.
Bloc
The Joint Co-Chair Bloc Rhéal Fortin
I had a question in mind to ask you earlier, but I can't remember it. I have another one I'd like to discuss with you, but I'm going to need more than 30 seconds. So I will wait.
I really can't recall my question from earlier, so I'll let it go. It's pretty close to unbearable to have only a few seconds to speak.
Thank you.
NDP
The Joint Chair NDP Matthew Green
Thank you very much, Mr. Fortin. I can certainly appreciate that.
I'll now take my two-minute round. I'll pick up with the line of questioning from Mr. Fortin, which juxtaposes the inquiry's being a creature of the executive with the fact that we're a legislative branch. It's slightly different. I heard that there is a battle of considerations between statutory guardrails and parliamentary privilege.
I'll put the question to Mr. Dufresne. In the battle between statutory guardrails and parliamentary privilege, in your opinion, who wins?
Law Clerk and Parliamentary Counsel, House of Commons
I think it's not necessarily a question of winning in a sense that it's really who decides. If it's a matter of parliamentary privilege, the houses decide. So, in this instance it's for this committee and ultimately both houses to decide their interpretation of those statutory provisions and of the House order.
NDP
The Joint Chair NDP Matthew Green
Given the descriptions of the inquiry in terms of who it would be composed of and some of the reflections around this room, would it be safe to assume that this potentially could be the only avenue through which the legislative body can contemplate the invocation of this act, given that the inquiry would likely be composed of people outside of the parliamentary realm?
Law Clerk and Parliamentary Counsel, House of Commons
What I'll say is the Emergencies Act explicitly contemplates the Governor in Council creating a commission, an inquiry to look into these matters. That is certainly Parliament's decision.
This committee exists. It is clearly a parliamentary committee composed of parliamentarians, and so it's important for this committee to be able to do its work and to fulfill its important mandate, and its mandate is found in the orders of the House and in the act.
NDP
The Joint Chair NDP Matthew Green
Excellent. Thank you very much.
With that being said, I will now hand the floor over to Senator Harder for his two-minute round.
Senator, Ontario, PSG
Thank you very much.
Witnesses, I want to reference the word “pursuant” under subsection 62(1). We've all quoted this, “The exercise of powers and the performance of duties and functions pursuant to a declaration”, and it suggests a period of time from the declaration going forward during the period of time at which the Emergencies Act was invoked, again understanding that there may be questions that require some investigation in circumstances before that date in the nature of asking how.
Would you agree that it would be important for this committee to adopt terms of reference that made very clear how we were exercising the scope of our work, so that we didn't run into the debate that we're having now on a regular basis with individual witnesses, or indeed the work plan of the committee?
Law Clerk and Parliamentary Counsel, House of Commons
I'd hesitate to tell the committee how best it will be doing this. I think ultimately the question will be the outcome, what the committee reports on and whether the committee stays within its mandate, whether it has to be done at the front end with terms of reference or whether it's done throughout. That would be for the committee to determine.
Senator, Ontario, CSG
Thank you very much, and thanks again for being here.
One of you discussed earlier that really the review into the invocation already began in the House of Commons, with the debate. It's not really necessarily fair to suggest no parliamentarians were involved in the debate about why it was invoked—it's already occurred.
Law Clerk and Parliamentary Counsel, House of Commons
I would actually say it not only began; it actually concluded—
Law Clerk and Parliamentary Counsel, House of Commons
—and the House did confirm the declaration.
Law Clerk and Parliamentary Counsel, House of Commons
The Senate did not. I think the Senate interrupted—
NDP
The Joint Chair NDP Matthew Green
We are now back to the first round of four-minute interventions. I would suggest we leave it to the parties to decide how they want to split up their time. If somebody wants to split time or share the clock, they're welcome to do so.
Keeping the same order, we'll go back to the official opposition side. Mr. Brock will take his four-minute intervention, starting now.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Thank you, Chair.
With all due respect to my colleagues, some of them may use arguments that a broader mandate in this committee might prejudice court proceedings and the subsequent inquiry. As witnesses at this committee will enjoy the same freedom of speech as members of Parliament, pursuant to the Bill of Rights of 1689, I'd like your legal opinions that evidence given by those witnesses before this committee could not be used to impeach a witness, or used in any way before the actual inquiry.
Law Clerk and Parliamentary Counsel, House of Commons
That's correct. As a matter of parliamentary privilege, the evidence given before this committee by witnesses is protected and cannot be reviewed in other bodies or in other courts.
I think what you perhaps are referring to is the issue of “sub judice” and sometimes the concern of not having discussions in a parliamentary body when there are court proceedings or other proceedings. That is also an element of consideration.