Declaration of Emergency Committee on March 29th, 2022

[Philippe Dufresne]

They do.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you.

[The Joint Chair, NDP, Matthew Green]

You still have a minute and 30 left.

[Rachel Bendayan, Liberal, Outremont, QC]

Oh, that's because of our four minutes. That's wonderful.

Gentlemen, based on the questions here today and your answers, I don't think anybody doubts your impartiality. We appreciate that very much.

I would like to confirm your roles, if I may.

I'm reading from House of Commons Procedure and Practice, which says, “the Law Clerk and Parliamentary Counsel [is] responsible for providing legal counsel services to the Speaker, the Board of Internal Economy, [all] Members”, regardless of party, and to the clerk, officials and House of Commons administration.

It is also my understanding that you in particular, Mr. Dufresne, have provided independent legal advice to committees in the past, including the finance committee. Is that correct?

[Philippe Dufresne]

That's correct.

My office and I serve the House.

[Rachel Bendayan, Liberal, Outremont, QC]

Clerk Walsh provided advice to the OGGO committee in 2010, as well.

[Philippe Dufresne]

Yes, I understand that to be the case.

[Rachel Bendayan, Liberal, Outremont, QC]

You regularly provide independent, impartial advice to members of committees and to committees as a whole. You do so in the context of your salary, which is paid already by taxpayers.

Is that correct?

[Philippe Dufresne]

I do. It's very important for me and for my office to do this work in an impartial way.

[Rachel Bendayan, Liberal, Outremont, QC]

Excellent.

Thank you, sir.

[The Joint Chair, NDP, Matthew Green]

Thank you.

Mr. Fortin, you now have four minutes.

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

Thank you, Mr. Chair.

Mr. Dufresne and Mr. Hallée, I'm going to discuss a completely different topic with you.

Subsection 62(4) of the Emergencies Act reads as follows: “Every meeting of the Parliamentary Review Committee held to consider an order or regulation referred to it pursuant to subsection 61(2) shall be held in private.”

Subsection 61(2) deals with orders and regulations which, for various reasons, are exempted from publication in the Canada Gazette. The exemption usually has to do with national security.

Am I to understand that, in principle, our proceedings are public and will only be in camera when we are dealing with cases under subsection 62(4), that is, when we are considering orders or regulations that are not subject to publication in the Canada Gazette?

[Philippe Dufresne]

I think when you're dealing with those regulations, your proceedings will have to take place in camera. However, that doesn't preclude you from in camera proceedings as determined by the committee. Your committee has the authority to manage its proceedings.

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

I understand that we can always decide to go or not go in camera, if the majority of the committee agrees. My point is that, in principle, our proceedings are public, unless the committee decides otherwise or unless the proceedings are subject to subsection 62(4) and we're dealing with orders or regulations exempted from publication.

[Philippe Dufresne]

I agree. Ordinarily, the core principle of committees is to be open and transparent. Some circumstances do warrant meeting in camera, however.

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

Thank you.

I have another question for you.

Subsection 61(2) deals with the referral of those fabled orders and regulations to the Parliamentary Review Committee, that is, our committee. It specifies that the order or regulation must be “referred to the Parliamentary Review Committee within two days after it is made or, if the Committee is not then designated or established, within the first two days after it is designated or established”.

Our committee was established on March 14. I remember the date because it was my birthday. Am I to understand that the reason we have not received an order or any other document of that nature so far is that there have not been any orders?

[Philippe Dufresne]

I think that's a defensible interpretation. The government could confirm it. Yes, it does seem that they would have already been sent to the committee.

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

Given your answer to my second question, I'd like to come back to my first question.

Would it be accurate to say that all proceedings will always be public, unless a majority of the committee decides otherwise?

[Philippe Dufresne]

I agree. Your proceedings would not be public either in the event that regulations like those were finally sent to you.

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

Thank you, Mr. Dufresne.

Mr. Hallée, I assume you agree.

[Philippe Hallée]

I totally agree.

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

Thank you.

I have no further questions, Mr. Chair.

[The Joint Chair, NDP, Matthew Green]

That's excellent. I'll proceed with my four minutes.

I'm really interested in hearing your thoughts around the intention or the spirit of the legislation.

Mr. Dufresne, we've heard interpretations that when this legislation was first contemplated, it would have rightly been considered during an emergency as a check and balance to the extraordinary powers granted within the provisions.

Is that correct?

[Philippe Dufresne]

I'm sorry. I did not hear the end of your question.

[The Joint Chair, NDP, Matthew Green]

In its initial drafting, this legislation would have been provided to the House and the Senate as a way of providing a check and balance on the government during an enactment of the Emergencies Act.