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.
The Joint Chair Hon. Gwen Boniface
Thank you very much, Chair, and thank you, Mr. Beatty, for being here.
I want to just step back, since you made considerable reference to the predecessor act, the War Measures Act. Can you give me some of the principles that you walked through in order to modernize, as you said, in 1988, the Emergencies Act ?
CP, OC, As an Individual
I'd be glad to do that, Senator. Thank you.
First, the old War Measures Act was very limited in its scope. It had to be war or apprehended insurrection. Indeed, the October 1970 crisis was based on apprehended insurrection.
We recognized the fact that in the future there would be a wide range of emergencies that might require the government to assume extraordinary powers to save people's lives or to protect the integrity of the country. We needed to have legislation in place, considered in a period of calm, that would give the government the ability to respond very rapidly and effectively, but that would be counterbalanced by having adequate scrutiny by the courts and by Parliament, and would ensure the civil liberties of Canadians. At its root, that was the most fundamental element.
The old War Measures Act was used to suspend the civil rights of Canadians in 1970, right across the country, even though the situation was concentrated in Quebec. It suspended the right of habeas corpus. It allowed people to be held without charge for up to 21 days. It allowed censorship. There were any number of abuses that took place as a consequence. Mr. Trudeau, when he invoked the act, immediately said that he wished he had something else and that he would replace what he had with other legislation that was more nuanced and would better protect civil liberties. That's what we ultimately ended up doing, so many years later.
The Joint Chair Hon. Gwen Boniface
When you did your consultations and you thought through some of the scenarios, were there consultations with the provinces? Was it taken into consideration what the provincial emergency legislation would have been across the country at the time?
CP, OC, As an Individual
Yes, and we consulted very closely with the provinces, because many of the authorities that would be taken on would be responsibilities that ordinarily would be discharged by the provinces. We wanted to make sure that as we introduced this legislation, we reflected the situations as they existed in the provinces and had the support of provincial governments as a result.
So yes, we did. Of course, that legislation has evolved over the course of the years as well.
The Joint Chair Hon. Gwen Boniface
With respect to section 63 and the inquiry, what did you anticipate the inquiry's broadest mandate would be? I know it says it in the act, but I'm wondering what was behind the thinking for the inquiry.
CP, OC, As an Individual
The purpose was to have one more layer of protection there after the fact, when things had calmed down and we could take a look at a whole range of questions. What were the circumstances leading up to the invocation of the act? How was the act used? What are the lessons learned as a result of this, and how do we avoid having to use the act in the future?
An example of the sort of thing, Senator, that I would like to see as part of that inquiry, but which is probably beyond the scope of yours, is looking at how we police in the national capital. Is the arrangement that we have today to provide security services for the national capital appropriate, or should it be rethought? I think most of you would feel that is beyond the scope of your particular inquiry. I believe it would be appropriate for the inquiry that takes place after the fact to look precisely at that question, among many others.
NDP
Senator, Quebec (Mille Isles), C
Thank you, Mr. Chair.
Mr. Beatty, we've all read your previous public statements on this issue. I imagine you did the same to help you refresh your memory.
On November 16, 1987, you gave a speech in the House of Commons, at second reading of the bill. Here is part of what you said:
Unlike the War Measures Act, part II of Bill C‑77 confers no new powers relating to search, seizure, arrest or detention. The provisions of the Criminal Code in these areas are considered to be entirely adequate to deal with the instigators of public disorder, even under unusual and exceptional circumstances.
It must have surprised you, then, that the government used the Emergencies Act to seize people's bank accounts. According to you, it was clear that the legislation did not give the government any new powers and that the Criminal Code should be used when searches needed to be performed. Isn't that right?
CP, OC, As an Individual
Sir, I think you're referring to my second reading speech on November 16, 1987, in which I made that point. The goal was to ensure that, wherever possible, we used ordinary law to be able to deal with the circumstance.
Yes, the power to seize bank accounts was novel. It was not one that had been used previously. That's why I'm suggesting that one of the things the committee may want to do is to look very closely at that, and that Parliament may want to study under what circumstances the government should have that sort of authority to freeze people's bank accounts. What do we want to use it for? What are the implications? If Parliament decides that it wants to convey that authority on government, should we do it through ordinary legislation, as opposed to having the government proclaim it as part of an order in council?
Senator, Quebec (Mille Isles), C
Again, I would think you were surprised to see that happen. As a lawmaker sponsoring a bill like this one, you mustn't have anticipated that it would be invoked in your lifetime. I imagine you were a bit surprised that the government invoked the Emergencies Act to exercise powers such as compelling the towing of vehicles parked on Wellington Street.
CP, OC, As an Individual
Sir, I'm not sure I would say that when we passed the act I never expected it would be invoked in my lifetime. I prayed that it would never be invoked in my lifetime, that it would never be necessary to use it, but I felt it was essential that we have it on the books in case it was necessary.
Could we anticipate the exact circumstances under which it would be invoked in the future? No, we couldn't. That's why it's important for us to have this sort of review.
Senator, Quebec (Mille Isles), C
Ontario's Highway Traffic Act gives a peace officer the power to order a vehicle to be towed. Furthermore, the mayor of Ottawa has the power to declare a state of emergency, giving the city the authority to take all measures necessary to deal with the situation. Court injunctions can also be sought to give police the authority to move vehicles or to arrest people for breaking the law or for contempt of court. In your mind, when the Emergencies Act was passed, Canada's body of legislation provided for those powers, such that the Emergencies Act would not have to be invoked. Is that correct?
NDP
The Joint Chair NDP Matthew Green
Thank you.
Mr. Beatty, I would invite you to contemplate that, or the senator may have the opportunity in future rounds to revisit that question.
We will move on to Senator Harder.
You have four minutes.
Senator, Ontario, PSG
Thank you, Chair.
Welcome, Mr. Beatty. It's nice to see you. You haven't aged at all in 34 years.
Senator, Ontario, PSG
Earlier this evening, you said that you hadn't, in contemplating the review committee's work under section 62, expected the committee to be meeting for the first time only after the revocation of the Emergencies Act. I can see that logic in the legislation, particularly in how sections 61, 62 and 63 play out.
Under section 61, you anticipated a vote taking place in the House of Commons very quickly, and that the debate should not be interrupted, etc. I'm not going to review the Speaker's ruling on that, but it is surprising to me that the House of Commons got to its vote only a week after the invocation of the act, and that, therefore, this committee couldn't be established as quickly as I believe your act contemplated.
In that context, the mandate of this committee, which was very specific and proscriptive with respect to pursuing how the measures were being implemented, is and continues to be a very useful guide.
You've also, though, suggested that we should be broader than simply proscriptive and forward-looking from the date of invocation to look at some of the preconditions. I can accept that, as long as our starting point is in fact the mandate of the parliamentary review, as you've scoped out so well in subsection 62(1), and we don't get into a repeat of section 63 and the inquiry.
I wonder if you can comment and give us any reflections on how you saw sections 62 and 63 interrelating, because I think you've conflated in some of the comments what we could expect one to do and the other to be less focused on.
CP, OC, As an Individual
Senator, is there apt to be some overlap between the two? Yes, there is. Does that offend me? No, it doesn't. Could you find that your committee reaches different conclusions from an independent inquiry? Yes. I'm not offended by that either. I think that's healthy in a democracy.
I think what is important as you look at your work is that we deliberately wrote in the need for Parliament to immediately deal with the proclamation of the emergency. That was to ensure that Parliament was engaged, and we wanted it to act very quickly.
What we had learned, though, from the War Measures Act was that much information came out after that time about the nature of the crisis in Quebec and how it was being handled by the authorities.
You have access today to information that Parliament didn't have at the time that it voted. For example, the statement of the commissioner of the OPP that a week before the act was invoked, the provincial government had found that there was a threat to the security of Canada. That wasn't common knowledge at the time that Parliament voted. It's appropriate for you to look at that and to examine the basis on which that finding was made.
If you find, as a result of that, that it justifies what the government did, that's good. If you find that the government made this decision based on fallacious information, then that's appropriate for you to look at as well in my view. It's also appropriate for the courts to consider and for the ex post facto review to look at as well.
The distinction I would make about the ex post facto review is that it was designed to be...after all the dust had settled. You could pull back and have some perspective and look at a very wide range of issues such as, for example, the structure of policing in Ottawa, which I mentioned earlier.
NDP
The Joint Chair NDP Matthew Green
Thank you.
We will now finish this round with Senator White.
Senator White, you have four minutes.
Senator, Ontario, CSG
Thank you very much, Mr. Beatty, for being here tonight.
I appreciate the fact that you stated that the expectation is that this committee would be sitting at the same time that the Emergencies Act would have been in the invocation period, because I anticipate as well, then, that you would expect that we would not be looking at the rationale for invoking in that case. Is that correct?
Senator, Ontario, CSG
Do you think we would be looking or we would not? I'm sorry.
CP, OC, As an Individual
I think you would look at it particularly if evidence was turned up as a result of your hearings or as a result of anything coming into the public domain that cast questions about the rationale for invoking the act in the first place and whether or not actions flowing from that indication were appropriate.
Senator, Ontario, CSG
In essence, you anticipated that we could have two, an inquiry committee and a review committee, that did the exact same work. I guess my question is why the legislation doesn't say that clearly.
CP, OC, As an Individual
It's not the exact same work, Senator, but will an inquiry be looking at much of the same information that you're looking at? Yes, they will. Will they make recommendations possibly in areas that you'll be making recommendations? I hope so. Might they be different from the recommendations you make? They could be. It's the nature of democracy itself.
What we were trying to do was build in several layers of protection to ensure that there was the closest possible scrutiny, that civil liberties were protected and that Parliament was fully engaged.