Declaration of Emergency Committee on April 26th, 2022

[Arif Virani, Liberal, Parkdale—High Park, ON]

Minister Lametti, when you're talking about charter compliance, the hallmark of charter compliance is always proportionality, looking at ensuring government action is minimally restrictive, targeted and lasts no longer than necessary.

Can you explain to the committee what steps were taken to ensure that the powers that were invoked were proportionate? What informed the government's decision to revoke the declaration after a period of only nine days?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you, Mr. Virani. That's an excellent question.

In general, every single measure we took had a specific goal in mind in terms of what we wanted to attain. They were measured, targeted, temporary and proportionate. We made it clear that we would go no further than taking control of these situations across Canada.

We monitored the situation every single day and many times during every single day. As soon as those provisions were no longer needed, we revoked the act and the rights of Canadians, to the extent that they had been minimally impaired by these provisions, were then fully restored. We also made sure that we didn't impinge on other free speech rights, like other rights of assembly, for example. Other protests were happening across Canada in a legitimate way.

[Arif Virani, Liberal, Parkdale—High Park, ON]

There's obviously a legal test. You're the chief law officer of the Crown, so I think it's incumbent upon me to ask you this.

Section 3 of the act defines what a national emergency is. Sections 16 and 17 talk about what a public order emergency is. In your view, what caused you to believe that the legal test was met under the statute for invoking a declaration of emergency?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As we set out in the various documents that we tabled, we felt it was a national emergency under paragraph 3(a) of the act because it seriously endangered Canadians and the safety and security of Canadians, and it exceeded the capacity of other authorities of the provinces, in particular, to take care of it. With respect to paragraph 3(a) of the act, we needed measures. It was a situation of an urgent and critical nature. Again, it was seriously endangering. It exceeded capacity, and it couldn't be dealt with under any other law.

The context of the situation across Canada was such that we gave the police authorities additional powers to deal with the situation, to smooth over differences in jurisdictions and to act to solve this threat. It's always contextual, but it was clear to us that something needed to be done that was beyond the capacity of any one or a number of jurisdictions with the laws that they had, and the proof was in the pudding. It worked.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Minister.

[The Joint Chair, Bloc, Rhéal Fortin]

Your time is up, Mr. Virani.

Mr. Green, I will let you chair the meeting since it's my turn to ask questions.

[The Joint Chair, NDP, Matthew Green]

I give you the floor for five minutes.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you.

Minister, earlier I asked Minister Mendicino whether he had received opinions before the Emergencies Act was invoked. He told us he had. I then asked him if they were written opinions, and he confirmed that was the case.

Can you confirm for me whether you indeed received written opinions? Did you personally see them before the act was invoked?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Fortin, as Minister of Justice, I give opinions to cabinet and the government all the time and I provide formal opinions as Attorney General.

[The Joint Chair, Bloc, Rhéal Fortin]

Pardon me, Minister, but I was asking whether you had received any?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Those opinions are protected by privilege against disclosure.

[The Joint Chair, Bloc, Rhéal Fortin]

I'm not asking you whether you provided any, Minister. I'm asking if you received any legal or other opinions stating that the Emergencies Act should be invoked.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Fortin, in certain circles, that kind of declaration by the Attorney General is construed as permission to receive them. As Attorney General, I have to respect privileged solicitor-client communications.

[The Joint Chair, Bloc, Rhéal Fortin]

I don't have much time left, Minister.

I understand you didn't receive any but provided some.

Is that correct?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Fortin, I can't answer your questions.

[The Joint Chair, Bloc, Rhéal Fortin]

You can't even tell me whether you gave any? I'm not sure that's the case.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Sir, you are a lawyer…

[The Joint Chair, Bloc, Rhéal Fortin]

I'll move on to my next question, Minister, because my time is limited.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As a lawyer, you understand why I'm giving you that answer.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Minister.

I wanted to ask you another question, which is somewhat the same as the one I put to the Minister of Public Safety.

As you must know, the Emergencies Act requires the Governor in Council to consult the provincial premiers before making an emergency declaration.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

That can be done after the declaration.

[The Joint Chair, Bloc, Rhéal Fortin]

I believe it's before the declaration.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Under section 25 of the act, it can be done after the declaration, depending on circumstances.

[The Joint Chair, Bloc, Rhéal Fortin]

Either way, it was done before the declaration. The report on that consultation, which is dated February 16, 2022, is appended to the declaration.

I'm referring now to that report. Without dwelling on each bullet point, I see, at page 6, that the Premier of Quebec was opposed to the application of the Emergencies Act and even said it would be divisive. The Premier of Alberta opposed the invocation of the Emergencies Act. The Premier of Saskatchewan didn't support the emergency declaration and said that the police already had sufficient tools. The Premier of Manitoba wasn't convinced at the time that it was necessary to invoke the act. The premiers of New Brunswick, Nova Scotia and Prince Edward Island said it wasn't necessary to invoke the act in their provinces. The premiers of the three territories—Yukon, the Northwest Territories and Nunavut—spoke with the Governor in Council but didn't comment on the invocation of the act. So that's a total of seven provinces that were plainly opposed to invoking the act. The three territories didn't have an opinion or, in any case, didn't express an opinion on the matter. It appears that only three provinces told you that they would need it, that it was a good idea.

What was the point of those consultations, Minister?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As you know, because you've read section 25 of the act, the Governor in Council has a duty to consult, but unanimity isn't required, or even a majority of the provinces and territories.