Declaration of Emergency Committee on March 29th, 2022

What I would suggest to you, Senator, is that if you find that the criteria and the threshold were not met on the basis for invoking the act in the first place, then everything that flowed from the decision of invoking the act was improper as a consequence as well, as you're looking at how those powers were used. It's entirely appropriate for you to do that.

In addition, you have information today that Parliament didn't have at the time that it voted to support the invocation of the act. It's appropriate for you to look at that. You can choose how extensively you want to do that.

I do want to be clear about this. We anticipated that the primary role of the committee was going to be to provide continuing parliamentary oversight, throughout the time of the crisis, of how the government was using its authority. What we certainly did not preclude was the ability of the committee to look at whether or not the authority that the government had given itself was appropriate.

Senator, Ontario, CSG

Vernon White

Thank you.

NDP

The Joint Chair NDP Matthew Green

We will now move into our second round, beginning with a round of three minutes with Mr. Brock.

Mr. Brock, you have three minutes.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Thank you, Chair.

Thank you, Mr. Beatty, for your attendance today and your helpful evidence as we work as a committee to frame the ambit of this very important study.

I want to start with some basic issues here, to wrap my head around them. Perhaps you can opine as well.

In my view, there was probably a very good reason that in the last 34 years, this Emergencies Act was not invoked. You'd agree with me, Mr. Beatty, that Canada has seen its fair share of crises, with numerous blockades with respect to pipelines, forms of infrastructure or railway lines, which substantially impacted the livelihood of Canadians from coast to coast to coast.

We've seen all kinds of insurrections. In fact, not too long ago, we had the storming of Centre Block and the killing of Corporal Nathan Cirillo at the veterans memorial. We had someone storming into Centre Block trying to gain access to parliamentarians. We had a shootout. We've had this worldwide crisis under COVID.

No Canadian government, in those 34 years, took the most drastic of measures, as you've indicated—the gravest of actions—to invoke the Emergencies Act.

Did you even contemplate, as a legislator and a government in 1988, that a protest outside of Centre Block on Wellington Street by way of truckers honking their horns, demonstrating their love for Canada, flying flags and singing and dancing would ultimately rise to the level of a national emergency? Was it even contemplated that such an action would give rise to that?

CP, OC, As an Individual

Sir, I think that would be what is known as a leading question and it drags me perilously close to a partisan comment. I want to avoid that.

I do agree with the first part of your question, though. Emergencies legislation is designed to be legislation of last resort, if possible. It's explicit on that. It is designed to be used when there is no other legal authority available to be able to adequately resolve an emergency.

I'll leave it at that.

NDP

The Joint Chair NDP Matthew Green

It is a three-minute round on this one.

We will likely have an opportunity to cycle back through as we did in the last session, but I want to give the floor to Mr. Virani.

Mr. Virani, you have three minutes.

Liberal

Arif Virani Liberal Parkdale—High Park, ON

Thank you very much for being here, Mr. Beatty.

You have mentioned a number of times that parliamentary oversight is important. I think all of us would agree with that. It is important. That's why we're here and why we were elected.

Sections 58 and 59 of the statute that you helped to enact talk about Parliament either confirming or potentially revoking a declaration order. Is that parliamentary oversight, from your perspective?

CP, OC, As an Individual

That's part of parliamentary oversight. Yes.

Liberal

Arif Virani Liberal Parkdale—High Park, ON

We've talked a lot about the statute. I want to talk to you about what is and isn't in the statute.

Section 62(1) talks specifically about the “exercise of powers and the performance of duties and functions”. It doesn't explicitly use the term “the circumstances that led to the declaration being issued”.

Can we agree that this language is not in 62(1)?

CP, OC, As an Individual

Yes. I think we've agreed to that already.

Liberal

Arif Virani Liberal Parkdale—High Park, ON

You made reference to this notion that if the declaration of the invocation was itself flawed, then everything that flows from it is flawed. You started your opening statement by talking about what constitutes the legal definition of an emergency. You cited section 3.

The language of section 3 is not cited in section 62(1) either, is it?

CP, OC, As an Individual

I'm sorry...?

Liberal

Arif Virani Liberal Parkdale—High Park, ON

The language of section 3, which is the legal definition of an emergency, is not referenced in section 62(1), which talks about the parliamentary review committee.

CP, OC, As an Individual

No it isn't, but it has to be met—if that's what you mean—before the government can invoke the act.

Liberal

Arif Virani Liberal Parkdale—High Park, ON

I guess we're having some discussions here quite actively this evening about some legal maxims, and this came up with the law clerk. You said yourself that you listened to the law clerk's testimony.

There was talk about a legal maxim called expressio unius est exclusio alterius, which basically means a principle of statutory construction, that when one or more things of a class are expressly mentioned, others of the same class are excluded. That's something that many of us learned in law school, and that we use to apply to different statutes when we're trying to interpret them.

It seems to me, with all due respect, Mr. Beatty, that your position is somewhat the inverse. You're saying that what that maxim would indicate is that by expressly not referencing circumstances that gave rise to it in 62(1), we shouldn't be looking at it. However, you are saying, conversely, that had you wanted that to be excluded, you would have been very deliberate in the exclusion in 62(1). Do I have that correct?

CP, OC, As an Individual

Yes, sir. I would make the point, as well, that my legal opinion is worth what you pay for it. You have lawyers on the committee, and you have access to lawyers.

What I can talk to you about is what our intent was in writing the law. It was to ensure as broad parliamentary scrutiny as possible. That certainly would mean that anything flowing from an improper invocation of an emergency would obviously have to be looked at in that context.

NDP

The Joint Chair NDP Matthew Green

Thank you.

Monsieur Fortin, you have two minutes.

Bloc

The Joint Co-Chair Bloc Rhéal Fortin

Thank you, Mr. Chair.

I have just two minutes, Mr. Beatty, so I hope you don't mind if I do this quickly.

I'd like to hear your opinion on subsection 17(2) of the Emergencies Act, which states that the declaration of a public order emergency shall specify the three things listed at paragraphs 17(2)(a), 17(2)(b) and 17(2)(c). I'll jump right to paragraph 17(2)(c), which reads as follows:

(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.

Am I right to say that the application of the act can be limited to specific places, for instance, one or two provinces, a particular city or a given area? In other words, it's not necessary to apply the act to the entire country.

CP, OC, As an Individual

Yes, sir, and that was deliberate.

Bloc

The Joint Co-Chair Bloc Rhéal Fortin

Mr. Beatty, am I right to say that, when the act is invoked and its application extended to a given area or the whole country, the emergency must affect the entirety of that area?

In this case, an emergency was declared in the whole of Canada. If I go by the definition in the act, that means that there was an emergency right across the country, does it not?

CP, OC, As an Individual

I want to make sure that I'm actually answering your question.

It has to meet the standards of the national emergency. The consequences have to be so severe that the welfare of the country as a whole is affected. However, that does not mean that an emergency has to take place in all regions of the country.

In the case of the October 1970 crisis, the crisis was essentially limited to Quebec, yet the civil liberties of Canadians right across the country were suspended. Censorship was used in Guelph, Ontario, with the University of Guelph student newspaper. In Vancouver, there was a threat to use the act, as well, although it was not necessary to have it there.

We wanted to have legislation that would allow the government to say, “There's a grave crisis here. It meets the definition of a national emergency, but we aren't going to suspend everybody's rights; we're going to target it.”

9:05 p.m.

Bloc

The Joint Co-Chair Bloc Rhéal Fortin

I don't want to be rude, Mr. Beatty, but I have to stop you there.

I'm being told that my time is up anyways. Two minutes goes by very fast.

Thank you.

9:05 p.m.

NDP

The Joint Chair NDP Matthew Green

Given the fact that we still have some time here, we should be able to revisit that.

I'll begin my round now, and I want to pick up in the spirit in which I'm engaging in this. You touched on some of the stuff. You talked about the political climate.

I'm hoping for an opportunity for Canadians to heal from what happened in what was a protracted...It was, I think we agree, very divisive, sometimes filled with rhetoric around violence.

We had a group of people who provided a logistical occupation of the nation's capital, including an MOU that spoke explicitly about overthrowing a democratically elected government. This is all public, and what we know to be true. We had a situation in Coutts where munitions were found in large quantities—enough, in my opinion, to constitute a threat to national security.

However, one of the critiques I have—even being somebody who supported this, given the information that I had, Mr. Beatty—is that the actual declaration in and of itself, I felt, was overly reliant on the blockage of goods and services.

Could you comment on whether or not this committee should contemplate all circumstances as related to the CSIS Act—under 2(d), in particular, but all the definitions—when contemplating the invocation of this act, or is it strictly prescribed to what was written in the invocation?

9:05 p.m.

CP, OC, As an Individual