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.
Conservative
Conservative
Larry Brock Conservative Brantford—Brant, ON
Thank you.
In terms of advancing the argument for a broader approach by this committee to look at a number of circumstances that led up to the invocation of the act, do you also agree that it would be prudent to provide a fulsome report to the House, since members didn't have the privilege of attending committee, to include evidence relied upon, decisions made, the constitutionality and the actions taken by the government?
Law Clerk and Parliamentary Counsel, Senate
The mandate of the committee is narrower than that, as we've mentioned. It is up to this committee to decide how much it wants to have in the report, but, as Philippe mentioned earlier, if it really goes way over the mandate, it's possible for the House or the Senate to intervene and basically raise comments about the fact the report goes beyond the order and the act in this case. However, as we said, the committee has the freedom to report on whatever it wants in this case.
Conservative
Larry Brock Conservative Brantford—Brant, ON
We discussed a possible mandate for this committee prior to your request to attend to give evidence. I'd like to get your thoughts on this approach: mandate to include events leading to the invocation of the act, the rationale for invoking the act and the alternative courses of action available, the legality of invoking the act, the choice and necessity of the regulations and orders adopted under the act, the constitutionality of those regulations and orders and the use made of those regulations and orders.
Would any of you gentlemen like to comment on that proposed scope?
Law Clerk and Parliamentary Counsel, House of Commons
Looking at each of these and any other potential topics, I would really always go back to the orders of the House and ask: Is this a consideration of the use of powers pursuant to the declaration? If you look at the use made of the regulation and orders, that certainly seems to be there. If you're talking about constitutionality, there were discussions about the role of courts and the role of committee, but this talks about the regulations and orders. That's how I would look at each of these line items.
NDP
Liberal
Rachel Bendayan Liberal Outremont, QC
Thank you, Mr. Chair.
Mr. Dufresne, you mentioned several times during your testimony that Parliament and the Senate have a certain amount of authority in providing the mandate to this committee. Would you agree that that stems from the motion in the case of the government House leader?
Law Clerk and Parliamentary Counsel, House of Commons
There are the motions of March 2 for the House and March 3 for the Senate, which created this committee.
Liberal
Rachel Bendayan Liberal Outremont, QC
Those motions refer back to section 62. Do you agree with that?
Law Clerk and Parliamentary Counsel, House of Commons
They do, and they add the specific dates of the specific declaration.
Liberal
Rachel Bendayan Liberal Outremont, QC
I guess I would ask you first if you agree with the principle that the legislator does not legislate in vain. It's a common principle of interpretation.
Law Clerk and Parliamentary Counsel, House of Commons
That's a principle that's been recognized.
Liberal
Rachel Bendayan Liberal Outremont, QC
You also said earlier in your testimony that the mandate of this committee does not explicitly include “the circumstances that led to the declaration being issued...”
Liberal
Rachel Bendayan Liberal Outremont, QC
If the legislator had intended that to be part of the mandate of our committee, they would have included that in section 62.
Law Clerk and Parliamentary Counsel, House of Commons
That's a principle of statutory interpretation that's raised from time to time, expressio unius est exclusio alterius, which means that stating one thing means it's ruled out elsewhere. However, in statutory interpretation, to use that, you have to have a clear intention that Parliament intended it to be that way, intended that it would apply only when it was explicitly referenced. Ultimately, I'd look at the overall intention.
Liberal
Rachel Bendayan Liberal Outremont, QC
Wouldn't you agree that, by having specifically included it in section 63, the legislators turned their mind to that specific question and decided to vest the inquiry with those powers, not this parliamentary committee?
Law Clerk and Parliamentary Counsel, House of Commons
That's a determination this committee is going to have to make. I think it shows that Parliament gave the inquiry that mandate.
Law Clerk and Parliamentary Counsel, House of Commons
Whether that means the committee lacks that mandate would be a different question.
Liberal
Rachel Bendayan Liberal Outremont, QC
My final question is this: Would you agree, when it comes to subsection 62(6), which refers to the results of this committee's review under subsection 62(1), that, if our report and the results of our review go beyond our powers as provided in subsection 62(1), that report and those findings could be ultra vires?
Law Clerk and Parliamentary Counsel, House of Commons
My concern would be with being ultra vires the House orders. If the committee goes beyond the House orders, that could be raised in the House.
Liberal
Rachel Bendayan Liberal Outremont, QC
Just to confirm, those House orders that we have discussed refer back to section 62?
