Declaration of Emergency Committee on March 29th, 2022

[Philippe Dufresne]

I think I would focus more on whether you're dealing with a duty and function. Are you dealing with the exercise of a duty made pursuant to a declaration?

[Vernon White]

Okay, that's great.

I have six minutes left, right? Oh, oh!

[The Joint Chair, NDP, Matthew Green]

You have three minutes and 41 seconds.

[Vernon White]

At the end of the day, when we look at this as well, I think it's clear that the inquiry has much more latitude and breadth, obviously just in the language alone, and that they could open a much greater inquiry into some of the areas that are being raised even by members here.

Is that correct? Is the inquiry limited, I guess—?

[Philippe Dufresne]

I think the language described in the inquiry is broad, in the sense that it's talking about the circumstances leading to and the measures taken to deal with.

[Vernon White]

Okay, thank you. I'm good.

[The Joint Chair, NDP, Matthew Green]

It's 8:01. If everybody got through on the Senate side, I'd like to take this time to thank both of the witnesses, who performed outstandingly over the last hour and a half. I think there's been a really substantive debate.

We will now suspend for five minutes, to allow us to prepare for our second round.

I would just close with how I opened, which is that if you feel there were questions through which you weren't provided with the opportunity to give the fullness of the answers, you are invited to provide supplementary comments to this committee for consideration.

Thank you. The meeting is suspended.

[The Joint Chair, NDP, Matthew Green]

I call this meeting back to order.

I would like to welcome the Honourable Perrin Beatty for our second panel this evening.

Hon. Beatty, thank you for being here. I understand you have a detailed statement.

With the indulgence of this committee, and given that it's an hour and a half session, I'm wondering if we would allow you more time than your regular five minutes for the opening remarks, notwithstanding you're the only guest.

We will allow that extension for up to 10 minutes. You will likely have subsequent time in your rounds of questioning to fill out whatever comments you feel may have been restricted in your 10 minutes of opening remarks.

With that being said, we will now provide you the floor.

[Perrin Beatty, CP, OC, As an Individual]

Thank you very much, Mr. Chairman, and thank you for the invitation to speak to the committee.

At the outset, I want to stress that I'm not here as president and CEO of the Canadian Chamber of Commerce, but as a private citizen and a former minister who was responsible for the creation of the Emergencies Act. Any opinions that I express are solely mine.

I hope I can help the committee by explaining our motivation in replacing the old War Measures Act with modern emergencies legislation, by describing the principles that guided us, and by offering some questions for you to consider. I won't offer an opinion on whether invoking the act was justified. I have not seen sufficient evidence to reach a conclusion.

I note that the commissioner of the OPP stated last week that the province's intelligence bureau considered the blockades a national security threat a week before Ottawa invoked the act. I hope you will insist on seeing that assessment, and will evaluate the quality of the intelligence on which it was based.

Indeed, the committee should press for any information to help Canadians understand the rationale for invocation, and test against both the facts of the situation and the deliberately high threshold that is required.

Let me briefly provide some history.

In 1988, Parliament voted unanimously to replace the War Measures Act with legislation that was designed to help the government respond quickly and effectively to a range of emergencies that went well beyond war, or insurrection, while safeguarding the basic rights of Canadians.

The War Measures Act was enacted during World War I in the heat of a crisis, when safeguarding civil liberties was not a priority. It was used in both world wars, partly due to the perceived threats from enemy aliens. The government used it to arrest, incarcerate, deport, and seize the property of thousands of Canadians of Ukrainian, Japanese, Italian and German heritage.

The act's third and only peacetime invocation was during the October Crisis of 1970, when the FLQ kidnapped the British trade commissioner in Montreal and the deputy premier of Quebec, Pierre Laporte.

The War Measures Act suspended civil liberties across the country. It retroactively made FLQ membership a crime, and required those who had ever attended any of its meetings to prove that they were not members. It authorized arrests without a charge or access to a lawyer, and confinement for up to 21 days, as well as property searches without a warrant. It was outside of the Canadian Bill of Rights, and the Charter of Rights and Freedoms did not exist.

We needed a flexible tool to deal quickly and effectively with a range of potential emergencies, and to safeguard the rights of citizens of the provinces and of Parliament. While no one could predict the exact circumstances, Canada would inevitably face future crises, where we would have to protect the lives and safety of Canadians and even the existence of the country itself.

However, any powers would be strictly limited and overseen by the courts and Parliament. The declaration of an emergency does not absolve Parliament of its responsibilities. Instead, it makes Parliament's role even more important.

Even the most carefully written emergencies legislation is a blunt instrument. It must be, because it needs to cover a wide range of contingencies that can't be managed effectively in any other way. Even if you find that invoking the act was warranted, you should work to make it unnecessary if we face similar circumstances again.

Now that it has been used, it becomes easier to invoke. You must not define down the threshold in which extraordinary powers are used to curtail civil liberties. You will want to scrutinize the arguments for invocation to ask if the order should have been revoked earlier, and to examine the benefits cited as flowing from it.

That it made law enforcement easier is clear. However, the issue is whether the deliberately high threshold was met, not whether the powers given were useful.

Let me touch on this threshold for a moment. The War Measures Act was applicable to war, invasion or insurrection, real or apprehended. Most importantly, an invocation of the War Measures Act was considered conclusive evidence of the existence of an emergency. It could not be challenged in court. In contrast, Section 3 of the Emergencies Act defines a national emergency as:

an urgent and critical situation of a temporary nature that

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada....

Part II of the act adds a further test for public order emergencies, which it defines as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency”. It specifies that “threats to the security of Canada has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act.”

We used the CSIS act definition because of the care that had gone into writing it. I don't have time to read that definition to you tonight, but I urge you to do so. It's very important.

A public order emergency must meet two stringent tests. The first is to establish the existence of a severe emergency that cannot effectively be dealt with under any other law of Canada. The second is that it must meet a definition of threats to the security of Canada that was drafted to protect Canadians' rights and that specifically provides for “lawful advocacy, protest or dissent”.

The committee needn't waste time proving that the border blockades and the occupation of downtown Ottawa were illegal, infringed on the rights of thousands of citizens or cost tens of millions of dollars. The authorities had the responsibility to restore the rule of law and to prevent further damage. It would be hard to credibly argue anything else.

The authorities have cited several ways in which the act helped. For example, unlike other provinces' emergencies acts, Ontario's didn't let it press towing companies into service. Additionally, the act made it easier to cordon off downtown Ottawa and significantly cut the time to authorize police from other jurisdictions to assist. Of course, the government used it to freeze the bank accounts of people participating in or financing the blockade in Ottawa.

The act clearly made the work of the authorities easier. The issue, however, is not whether it helped the police, but whether the powers they already had could have resolved the problem. The concern is necessity, not efficiency.

It's also said that while law enforcement had plenty of legal authority to end the blockades, they chose not to use it. Invoking the act sent a clear message that our political leaders expected the police to do their jobs, but does that make the act's invocation primarily political, instead of to provide law enforcement with essential powers that they previously lacked? Would that meet the criteria for invoking the act?

I have three other brief observations. First, I hope you will propose ways to ensure that the act won't be needed in similar circumstances in the future. For example, if Ontario requires powers to order companies to provide services in a crisis or if it must be made easier for other police forces to help, that's where to change legislation.

Similarly, the most novel use of the act was to freeze the bank accounts of people associated with the blockades. Parliament needs to consider the rationale for such a power and the ways in which the government might use it. There are serious issues about foreign interference in our politics and about how to control the financing of illegal activities, but we must carefully weigh the implications. Any new power should be conferred in a time of calm, not by a regulation drawn up in a crisis.

Second, there's this obvious question: If you assume that the invocation was legal, did the act meet the twin goals of allowing the authorities to respond quickly and effectively in a crisis while limiting the impact on civil liberties?

My answer is that it did. We've heard much heated rhetoric directed at how the authorities used the act, but we should consider how these blockades would have been dealt with in other democratic capitals, like Washington or Paris. We've all seen how the right to orderly protest has been brutally suppressed in Moscow. These international comparisons provide a benchmark for judging Canada's treatment of civil liberties.

I have one final comment. Parliament's responsibilities go beyond judging whether invoking the act was appropriate and if the specific measures were warranted. Our leaders of all political backgrounds need to ask how we got to this point. The police were called upon to deal with a breakdown in our political system. We can criticize how they did their job, but it should never have been necessary for them to fill the breach in the first place. If we're to avoid much more serious emergencies in the future, we must restore a civility to our politics that allows us once again to disagree strongly on issues without seeing one another as enemies.

Thank you once again for inviting me to participate. I'll welcome your questions and your comments.

[The Joint Chair, NDP, Matthew Green]

Thank you very much, Mr. Beatty. Those were certainly welcome opening remarks.

We will go back to our rounds of questions, beginning with Mr. Motz for four minutes.

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

Thank you very much, Chair.

Thank you, Mr. Beatty, for being here. It's a pleasure having you here.

You indicated in your opening remarks that you're not going to comment on whether the act should have been invoked and that you don't have enough information. That's a fair statement.

What types of information would you have needed to be able to make that assessment, and would it be reasonable for this committee to have access to all the documents the government used or relied upon in order for them to make that invocation decision?

[Perrin Beatty]

Barring, Mr. Motz, the information being something that would prejudice, for example, a criminal investigation or that would damage national security in some way, my answer would be yes. The goal would be to be as transparent and open as possible.

What sorts of information? I cited, for example: What is the basis on which Ontario decided there was a threat to national security?

It is appropriate for you to ask whether the threshold for invoking the act was met. You need to look at the evidence that justified invoking the act.

When I wrote the act, I was affected by the experience of the War Measures Act in 1970. At the time we were told that there was information that we didn't have and, if we knew what it was, we would all support the invocation of the act. Ultimately, it turned out that wasn't the case and that the criminals who kidnapped Mr. Cross and Mr. Laporte were found through ordinary police methods.

You need to know on what basis it's decided that there was not sufficient other power that the authorities had to act. Also, was the emergency so grave that it was essential to invoke the act?

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

Thank you very much, sir.

This is your statement: “The goal in drafting the act from start to finish was to create as much accountability and scrutiny as possible, and if you want people”—I think this is so key, sir—“to be satisfied that the right decisions were made, then you have to have processes that are completely transparent.”

Thank you for that statement.

Would it then be reasonable to assume that, if we limit the scope of this committee in our mandate to just, as has been mentioned, simply narrowing it to the exercise of authority pursuant to the declaration of the act, we will be limiting our transparency and something the Canadian public demands of us?

[Perrin Beatty]

I want to choose my response to you, Mr. Motz, carefully, as I don't want to be drawn into any sort of partisan debate.

This was a national emergency. It was declared so by the Government of Canada. It was a crisis by any standard. If we're going to heal the wounds that there are in the body politic, it's going to be important for us all to operate in as transparent, fair and as open a way as possible.

Barring there being good reasons for not doing so, my prejudice always is that the default position would be to be as open as possible and share as much information as possible.

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

Thank you very much. I appreciate your candour.

You appeared before the legislative committee many years ago—34 years ago, to be exact—and you said the following:

To decide about invoking exceptional measures, judgements have to be made about what the government is capable of doing without exceptional powers, and on whether these capabilities are likely to be effective and sufficient.

Thus the decision to declare an emergency is an exercise of political judgement and the Parliament of Canada is obviously an appropriate forum for questioning that judgement.

Based on your opening comments, I believe you still stand by those words, so would it be right for me to assume that parliamentary committees, this particular committee, would be the natural and right place for that to occur?

[The Joint Chair, NDP, Matthew Green]

Thank you, Mr. Motz.

Mr. Beatty, in the previous round, I made a statement that provided context to the way in which these rounds are the purview of the individual members, but we keep them to a fairly strict timeline. I would like to invite you that, if you don't have the ability to provide an answer to Mr. Motz's final question, you can reflect on the minutes and perhaps provide a supplementary answer in writing, if you so choose.

We will now go on to the next round, which will be four minutes for Ms. Bendayan.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you, Mr. Chair, and thank you, Mr. Beatty, for appearing before the committee. I would also like to thank you for your work as president of the Canadian Chamber of Commerce, but obviously my questions are addressed to you as the drafter of this legislation.

I would like to take you back to February 23, 1988, when you stated before the legislative committee the following: “under the Bill, the grounds for declaring an emergency will be subject to comprehensive parliamentary scrutiny.”

I assume you're referring there to the vote, which did take place in the House of Commons.

You continued by saying:

The CCLA has raised the very important question of whether this is enough. Whether, should there be any doubt or uncertainty about the government's justification for declaring an emergency, the decision should be subjected to independent review outside the arena of politics. The natural place to seek such further objective review and confirmation would be in the judicial system.

I take this to mean that should there be a question about the government's justification for invoking the Emergencies Act in this particular case, this particular year, the judicial system remains the appropriate forum for such a debate and decision.

Do you agree with that, Mr. Beatty?

[Perrin Beatty]

The judicial system remains the final arbiter of whether or not what the government did was within the confines of the act. That doesn't preclude other scrutiny by Parliament or by other groups in looking at whether it was appropriate. That would include, for example, the review committee that gets established after the fact and has to respond within 360 days. It's not exclusive, but clearly should the courts find that the government acted in a way that was not legal, that didn't meet the threshold of the act, then obviously their decision is final.

[Rachel Bendayan, Liberal, Outremont, QC]

The review committee to which you just referred that has to report within 360 days is the inquiry provided at section 63—

[Perrin Beatty]

Yes.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you for confirming. Section 63 does provide specifically that it is tasked with reviewing the circumstances that led to the declaration being issued. Those are the terms of section 63.

Sir, do you agree with the rule, which is common in legislative interpretation, that the legislature does not act in vain, or the rules of internal coherence, if you will, that each individual section of a piece of legislation has a purpose?

[Perrin Beatty]

Yes, and indeed I heard you posing that question previously, and my answer would be the same.

[Rachel Bendayan, Liberal, Outremont, QC]

That is why I am curious. As the drafter of this legislation, sir, had you intended to vest the parliamentary review committee, which is provided under an entirely different section of the act, with those same powers, I assume that you would have done so explicitly, would you not?

[Perrin Beatty]

No. I think what I would say is that had I intended not to permit you to look at those issues, I would have ruled it out in the act.

It's for you folks to decide what the scope of your mandate is. If I could simply offer an opinion, it would be this: If you were looking at the actions taken by the government flowing from the invocation and if you uncover evidence indicating that the invocation of the act was inappropriate, then everything that flowed from it was inappropriate, as well. It seems to me that they're part and parcel of the same thing.

[Rachel Bendayan, Liberal, Outremont, QC]

Why did you not specify it in section 62? Why were you so specific in section 62 so as to exclude the terms that you used in section 63?