Declaration of Emergency Committee on March 29th, 2022

[The Joint Chair, NDP, Matthew Green]

Good evening. I would like to call this meeting to order.

Welcome to meeting number three of the Special Joint Committee on the Declaration of Emergency, created pursuant to the order of the House of March 2, 2022, and of the Senate on March 3, 2022.

Today's meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021.

I would like to remind all those present in the room to please follow the recommendations of the public health authorities, as well as the directives of the Board of Internal Economy, to maintain health and safety.

Should any technical issues arise, please advise me, as we may need to suspend for a few minutes to ensure that all members are able to participate fully.

Witnesses should also be aware that translation is available through the globe icon at the bottom of their screen or through the earpieces that are provided here in the room.

Before I turn it over for the first round of opening remarks, I would like to offer, for the benefit of the witnesses, that each time allocation to the members of this committee is strictly timed. It may be the case that from time to time, a member may intervene in order to request that they move on to their next question. Please know that this interruption is merely meant to protect their available time in order that they may gain insights they require for the purpose of the study. Should you not have the appropriate time to respond in full, I invite you to provide any supplementary remarks to the committee in writing.

To the members of this committee, this is a gentle reminder to place all questions through the chair, so as not to engage in any debate directly with the witnesses.

With that being said, I would like to welcome our first witnesses this evening.

From the Senate, we have Mr. Philippe Hallée, Law Clerk and Parliamentary Counsel; and from the House of Commons, we have Mr. Philippe Dufresne, Law Clerk and Parliamentary Counsel.

You will each have five minutes for your opening remarks.

Mr. Hallée, the floor is yours.

[Philippe Hallée, Law Clerk and Parliamentary Counsel, Senate]

Thank you, Mr. Chair.

Honourable senators, members of the House, I am pleased to be here this evening to support the work of the Special Joint Committee on the Declaration of Emergency, in the aftermath of the motion adopted on March 24. I hope to be able to answer your questions about the committee's mandate and the scope of its work.

As you know, on February 14, the Governor in Council declared that a public order emergency existed across Canada and necessitated the taking of special temporary measures. This declaration was subsequently revoked nine days later, on February 23.

Like other federal statutes, the Emergencies Act provides an explicit role for Parliament in its administration,. This role is described in Part VI of the act, entitled “Parliamentary Supervision”. Subsection 62(1), under the heading “Parliamentary Review Committee”, specifically provides that “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed by a committee of both Houses of Parliament designated or established for that purpose”. The motion to establish this committee, passed by the House of Commons on March 2 and the Senate on March 3, uses essentially the same wording as the act: your committee was established to examine “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency”, which has since been revoked.

Section 62 provides a number of details relating to the committee's role. However, as the motion establishing your committee passed after the declaration of emergency had been revoked, some parts of that section are no longer relevant to your work. For instance, no orders or regulations will be referred to you for revocation or amendment. Your committee will therefore focus on reviewing the government’s exercise of its powers during the state of emergency.

As some members of this committee have already noted, the wording of the act is quite broad. What needs to be determined is its scope, in practice. Neither the motion establishing the committee, nor the act itself, provide any further clarification of what is meant by “review”. Nor do they contain any guidelines or limitations as to the kind of information the committee must or must not consider or the kinds of inquiries it may or may not conduct in its review.

Were this simply a matter of statutory interpretation, I would suggest that the committee's role is to examine how any powers, duties or functions assigned during the emergency were exercised. The powers of the committee as set out in subsection 62(5) to revoke or amend an order or regulation tend to support a mandate that is focused on how the powers, duties or functions assigned during an emergency were exercised. This would include their conformity with the Charter of Rights and Freedoms and international human rights instruments, which are referenced in the act's preamble.

In addition, I would note the different language used in the act in sections 62 and 63. The former describes the work of this committee, and the latter describes the inquiry that the executive is obliged to convene into the circumstances that led to the declaration being issued. In section 63 the inquiry is explicitly required to examine the circumstances that led to a declaration of emergency. Section 62, by contrast, makes no mention of those circumstances.

As I mentioned, however, the committee's mandate is not simply a matter of statutory interpretation. One must always keep in mind the role of parliamentary privilege when considering committees and their work. Parliamentary privilege is a fundamental tenet of Canadian constitutional law, as you well know. It constitutes the sum of rights that the House of Commons, the Senate and their members possess, without which they could not discharge their functions. One such right is the right of each House of Parliament to regulate its own internal affairs without outside interference. This right is extended to committees, including joint committees like this one.

Accordingly, this committee is master of its own affairs, subject to any direction from the House and the Senate. It can determine what information may or may not be relevant and necessary to the task it has been assigned, and it can determine whether a given line of inquiry is or is not within the scope of its mandate. In other words, the committee is within its rights to determine, on its own, whether any given line of inquiry or piece of information is relevant and necessary to its work.

I thank you for your time. I'm looking forward to taking your questions.

[The Joint Chair, NDP, Matthew Green]

Mr. Dufresne, the floor is now yours.

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

Members of the committee, thank you for your invitation to appear today. I am pleased to be here along with my colleague, the law clerk and parliamentary counsel of the Senate, to discuss the scope of the mandate of the committee and address any questions that the committee may have.

As the law clerk and parliamentary counsel of the House of Commons, I am the chief legal officer of the House and my office provides comprehensive legal and legislative services to the Speaker, the Board of Internal Economy, the House, its committees, members of Parliament and the House Administration.

As counsel to the House, its committees and members, my staff and I serve the interests of the Legislative Branch, and provide similar types of legal and legislative services to the House as the Department of Justice provides to the government.

I hope that my remarks and my answers today will assist the committee in its important study.

The Emergencies Act authorizes the Governor in Council to take special temporary measures that may not be appropriate in normal times in order to secure the safety and security of the individual and to preserve the sovereignty, security and territorial integrity of the state during a national emergency. The act expressly provides that the taking of these measures by the Governor in Council is subject to parliamentary supervision and to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

With respect to parliamentary supervision, the act contemplates that both Houses play an important role in the review of government action pursuant to the act. Shortly after a declaration of emergency is issued, both Houses of Parliament are to be called upon to confirm the declaration of emergency. Any continuation of a declaration of emergency must be confirmed by both Houses of Parliament. A declaration of emergency may always be revoked by either House. Published orders and regulations made under the act can also be revoked or modified with the agreement of both Houses.

Importantly, the act provides for the creation, by both Houses, of this committee, as the Parliamentary Review Committee, with the mandate to review “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency”. The act mandates the committee to table certain reports before both Houses, and provides that the committee may also revoke or amend any unpublished order or regulation within 30 days of their referral.

While the act itself sets out certain features of the committee and the process in both chambers for the confirmation of a declaration of emergency and its continuation or revocation, the interpretation and application of these provisions are to be made by Parliament and not the courts, as these matters of parliamentary procedure fall under parliamentary privilege. This was demonstrated in the House of Commons on February 17, 2022, when the Speaker of the House rendered a ruling on the meaning of the expression “debated without interruption” found in subsection 58(6) of the act.

I understand that questions have been raised with respect to the mandate of this committee, and how it compares to that of the inquiry that the Governor in Council shall cause to be held “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency” pursuant to subsection 63(1) of the act.

The act requires that the inquiry be caused to be held within 60 days after the revocation of the declaration and that its report be laid before each House of Parliament within 360 days after the revocation of the declaration. As the inquiry made by the Governor in Council falls under the responsibility of the executive branch, the committee may wish to hear from counsel from the Department of Justice with respect to their interpretation of its mandate. From my perspective, it would cover both the issuance of the declaration and the measures taken to deal with it.

With respect to this committee, its mandate—which derives from the orders of reference of both Houses and the Emergencies Act—is “to review the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency that was in effect from Monday, February 14, 2022, to Wednesday, February 23, 2022”.

Pursuant to subparagraph (m)(ii) of the House order, the committee may “report to the Houses from time to time, including pursuant to subsection 62(6) of the act,” which provides for a report “at least once every sixty days while the declaration of emergency is in effect” and “within seven sitting days after” the revocation of the declaration, which was done on Tuesday, March 22, 2022.

In my view, the committee clearly has the authority to review the exercise of powers and the performance of duties and functions pursuant to the declaration, which includes the making of the Emergency Measures Regulations and the Emergency Economic Measures Order by the Governor in Council, as well as the performance of duties and functions that the regulations and orders authorized.

While the mandate of the committee does not explicitly include “the circumstances that led to the declaration being issued”, it will be for this committee to determine whether and to what extent a consideration of such circumstances would be relevant and necessary to its review of the exercise of powers, and the performance of duties and functions that took place pursuant to the declaration.

While the committee may be able to deal with certain matters in a more specific manner, other matters may require a consideration of the broader context. The key question for this committee, in my view, would be whether the information is necessary to the committee to fulfill its mandate pursuant to the House's order and the act.

With that, I would be pleased to answer any questions.

[The Joint Chair, NDP, Matthew Green]

Thank you, both. We will now proceed to our rounds of questioning.

Mr. Motz, the floor is yours.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Chair, and thank you both very much for being here and providing us that overview.

Mr. Dufresne, we normally speak of committees being the masters of their own proceedings, as long as they act within the scope and the mandates provided by the House.

In striking this committee, did either house impose any limitations on the scope of our work, or did they simply recycle the words from the Emergencies Act, that “The exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed”?

[Philippe Dufresne]

Those are the words used in the House's order. I understand it's the same for the Senate's order. It's “review the exercise of powers and the performance of duties and functions pursuant to the declaration of emergency that was in effect from Monday, February 14, 2022, to Wednesday, February 23, 2022”. There's a little more specificity to the dates in the House order.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

What I'm saying, though, is they didn't confine the mandate; they basically quoted the act.

Would it be fair to say that this committee shares in and enjoys the House's parliamentary privileges, as has already been mentioned by you and Mr. Hallée, to interpret the statutory provision without any outside interference and to determine the appropriate scope for its mandate as it sees fit?

That's for both of you gentlemen.

[Philippe Dufresne]

I would say that it is for this committee to interpret the scope of its mandate in light of the House's order and in light of the language in the act. Ultimately, it would be for the houses if there are any issues raised about that.

We have seen certain instances where concerns were raised following committee reports, when it was argued in the House that a committee had gone beyond its mandate. However, it's not something that would be for the courts. It would be for the committee and the houses.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

I have one more question. The House of Commons has a well-recognized role as being the grand inquest of the nation. Would it not, therefore, behoove us as a committee mandated by that House to take a broad and very generous interpretation of our review mandate in order to adequately discharge our responsibilities to Canadians to hold their government to account?

That's for both of you.

[Philippe Dufresne]

In terms of “the grand inquest of the nation”, that has certainly been cited and included by the Supreme Court of Canada in recognition of the important work of the House and committees in holding the government to account and being able to do its work. The House itself, though, has said in Speaker's rulings that it is important for committees to look to the ambit and the mandate that has been given to them by the House, so it's up to the committee, and ultimately the House, to make those determinations and to do what they can so that they can get to their mandate and fulfill their mission.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Fair enough, but as we've seen in the order by the House, it does not limit that scope. It just basically repeats the Emergencies Act in section 62 as being “the exercise of powers” and “the performance of duties”, and that's what it's the responsibility of the committee to review.

To ask again, in order to do that and to do that appropriately, to make sure this committee understands that the discharge of its responsibilities is not just to the House, but to the nation and to Canadians who are watching this, and it's a matter of having full transparency and full accountability for the actions of government, for the actions of the House, would it not then seem reasonable that we would take a very broad approach to a scope and mandate to ensure that there was nothing left out, to ensure that no questions were unanswered?

[The Joint Chair, NDP, Matthew Green]

Thank you. Unfortunately, time does go by. Four minutes go by quickly. This time is a little shorter than some of our House committees, so as was referenced earlier on, if there's an opportunity for supplementary information to be provided in writing as it relates to the questions from Mr. Motz, I would encourage the witnesses to give it contemplation and provide it to this committee accordingly.

We will now turn to Mr. Naqvi for his four minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

I want to thank both witnesses for being here today and assisting us in understanding the scope of this committee and the manner in which the act is laid out.

I'll ask this question of either one of you.

When we look at section 62, we see language that talks about “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed....”

In your view, is that a more contemporaneous review of the powers that were invoked as a result of the Emergencies Act?

[Philippe Hallée]

It is really an appreciation of the whole context that is needed for the.... I mean, the context is really the exercise of the powers that have been granted to the government for this purpose, so it is indeed an appreciation of the whole context. I would say the contemporaneous.... I'm not very clear.

It is essentially an appreciation of the whole context, including what has led to the adoption of the measures, but it's focused only on the exercise of the power and how. As I was mentioning in my notes, it's really about how this power, those powers, have been exercised.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Mr. Hallée, when you talk about how those powers are exercised, am I to understand that it's more an oversight function in the manner in which those powers are being exercised or have been exercised?

[Philippe Hallée]

If I understand your question, I think it's how they have been exercised, indeed, especially given that the declaration has been repealed now—

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Yes, and I am talking the more general statutory.... Even if that were not the case, if this order were still in place and we were sitting right now, we would have been performing perhaps an oversight function on how those powers were being exercised as they were being exercised. Am I correct in that interpretation?

[Philippe Hallée]

You're right.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

When you juxtapose the language in section 63, it says very distinctly “cause an inquiry to be held into the circumstances that led to the declaration being issued”.

Is it correct to assume that it's being looked at more from a retroactive perspective as to what were the circumstances that caused the government to invoke the Emergencies Act?

[Philippe Dufresne]

I can perhaps speak to this, Mr. Naqvi, in the sense that, as I said in my opening remarks, if we look at the language for the inquiry, there are certainly the two elements. One is the circumstances that led to it, which is retrospective and, second is the measures that were taken. There are those two elements in terms of the inquiry.

In terms of this committee, the language used is “the exercise of powers and the performance of duties and functions pursuant to the declaration”. That's the starting point for this committee.

To what extent additional context—including the circumstances that existed—is necessary and useful in assessing how the powers were used is for this committee to determine.

[The Joint Chair, NDP, Matthew Green]

Thank you very much. As mentioned, four minutes goes by very quickly.

We will now move on to Mr. Fortin for his round of questions.

If it's helpful for the members of this committee, I'm happy to put up one finger for one minute remaining, so you get a sense of how quickly that round goes by.

Mr. Fortin, the floor is yours, before we get into any other points of order.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Chair.

Mr. Dufresne and Mr. Hallée, thank you for being here. Your insight will certainly be invaluable to us in the work we're doing.

I'd like to go over some specifics with you.

In your opening remarks, you talked about the fact that the Canadian Charter of Rights and Freedoms continued to apply after the Emergencies Act was invoked. That wasn't the case in the context of the previous act—the War Measures Act—since at the time there simply wasn't a charter, as we know. Now that there is a charter, it applies.

Does the application of the Canadian Charter of Rights and Freedoms need to be taken into consideration when we interpret, for instance, the limits of our mandate? Our mandate includes reviewing the exercise of powers and performance of duties and functions set out in the act. Don't we also have a duty to look at whether the exercise of those powers is consistent with the charter?

[Philippe Hallée]

That is indeed my understanding. Among other things, the role of the committee is precisely to look at whether the exercise of powers that were put into place is consistent with the charter and other instruments.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

I'd like to ask you a second question.

I understand that based on how the act is divided, sections 62 and 63 deal with two different types of inquiries. On the one hand, section 62 deals with the review of “[t]he exercise of powers and the performance of duties and functions pursuant to a declaration of emergency”, which is what our committee is concerned with. On the other hand, section 63 refers to “an inquiry to be held into the circumstances that led to the declaration being issued”.

Do the review and the inquiry occur in silos, each one automatically excluding the other? For example, when the Governor in Council conducts the inquiry into the circumstances, will they be barred from determining that there should have been seizures, or that tow trucks should have been hired to clear the trucks from Wellington Street, in Ottawa, but that it was impossible to do that? Will all of that be excluded from the Governor in Council's work? And on the other hand, is it out of the question for us, in our review, to look at the circumstances that led to the exercise of these powers?