Declaration of Emergency Committee on May 31st, 2022

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

Thank you, Chair, and thank you, Madam Clerk, for reading that out. I appreciate it.

I think what's important is that it's become clear through the process since February 23—we've had witnesses here already and comments that have been made publicly—that the government has chosen to maybe withhold or hide behind cabinet confidences or lawyer-client privilege, so there's no clarity at this stage on any of our witnesses.

I don't anticipate the government's being forthcoming with any clarity that would allow us to know who asked for the Emergencies Act, what information they were dealing with that precipitated them asking for it, or anything the government relied on to invoke the Emergencies Act. I believe the documents we're asking for in this case contain the information needed for us to make an informed decision.

We've all said around this committee, and the Prime Minister has said, that Canadians deserve transparency and accountability on this matter. I think it's prudent and it's the way to go.

I can go into more detail, but I'll leave it at that. I think the motion speaks for itself.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Motz.

Mr. White, the floor is yours.

[Vernon White]

I'd like to bring forward an amendment. It removes everything from (j) to the end, leaving the rest as is.

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

Can I ask a question of clarification on that, Chair?

[The Joint Chair, Bloc, Rhéal Fortin]

Go ahead, Mr. Motz.

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

Senator, if you remove everything from (j) onward, can you explain how you anticipate the navigation of these documents is to take place once they're received by this committee?

[Vernon White]

Thank you very much, Mr. Chair.

I think once we remove that, we can then bring forward an amendment identifying how the documents are brought to us. Trying to fix this and removing redaction pieces.... It's much easier to remove it all and then put in one section stating “all documents will be delivered in 30 days”, or that type of thing, rather than trying to deal with...because there are too many pieces to this puzzle.

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

I think I understand what you're getting at, Senator. If (j) talks about the law clerks and the legal counsel, they would hold the documents and the unredacted documents as well, and they would compare them with the redacted documents.

[Vernon White]

That's what I'm saying. They can't do that. I'm arguing they should not do that. That's what my amendment is.

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

Who should do it, then?

[Vernon White]

Nobody should compare the redacted documents with unredacted documents.

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

Okay, so you're saying with the redacted documents we get, we might get 500 pages all in black.

[Vernon White]

We could, and we'd have pathways then, but right now we're presupposing what we're going to get, and we don't know what's going to come.

If I may, Glen, you and I know what we saw. We would lose three words in four sentences. We could always presuppose that we would know what was in those redacted documents at NSICOP, but we're presupposing now that we're not going to get anything.

I think we have to make a decision on what redactions we have when we get them, and then we have pathways, but we don't have a pathway now. I think asking a law clerk to look at cabinet confidence and at solicitor-client privilege and make a determination of what's right and wrong.... They don't know, to be fair, in many cases, nor should they have access to them.

I'm not suggesting we'll be happy with the redactions. I'm suggesting we won't know until we get those redactions, and then we can make decisions. I don't think we should make them now. That's all.

Thank you for your lenience, Mr. Chair.

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

Okay.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you for those clarifications, Mr. White and Mr. Motz.

According to my list, Mr. Virani and Mr. Green want to speak.

Mr. Virani, the floor is yours.

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

Thank you, Mr. Fortin.

Thank you, Senator White, for that suggestion.

In terms of what I was going to address, first of all, I have a couple of points, just to make sure the record is clear.

Mr. Motz said in his comments that the government had chosen to “hide behind cabinet confidences or lawyer-client privilege”. Cabinet confidence is a very entrenched notion in the Westminster style of government. It's to ensure that candid cabinet conversations can take place for the betterment and the public interest of all people that reside in this country. It's quite sacrosanct in our tradition. It predates the charter and is an important thing to uphold, so it's not an issue of hiding behind something. It's actually an issue of maintaining a principle that allows government to continue.

Lawyer-client privilege is equally sacrosanct. I'll declare my subjectivity on the matter clearly, out in the open. There are many other lawyers around this table, but the reason you have lawyer-client privilege is so a client can feel confident in having open and very blunt and candid canvassing of various options with their counsel. Without that kind of secrecy to the communications, you don't have the provision of legal advice that is in the client's best interest and that is in everyone's best interests in this country. I just reject the assertion that people are hiding behind these principles. We are trying to uphold them because they're important for our democracy.

That being said, I agree with much of what Senator White has suggested with respect to a surgical amendment to Mr. Motz's motion. I would actually take it a bit further, to indicate further to his point about the documents not being potentially evaluated or compared or contrasted by law clerks or any other legal counsel. Apropos of omitting everything from (j) onwards, I would actually say that the original (h) which reads, “the law clerks and any legal counsel which may be appointed by the committee” should also be struck, and what I would further indicate is that references to the “Law Clerk and Parliamentary Counsel of the Senate” and “the Law Clerk and Parliamentary Counsel of the House of Commons” in paragraph (f) should also be struck.

Just to finish, in closing off the list, I think that in paragraphs (d) and (e), reference to specific legal advice that was provided to the Minister of Justice in respect of his responsibilities under the Department of Justice Act, to any lawyer reading those phrases—and again, there are many lawyers around this table—that clearly is legal advice that's being provided to the minister and would fall under what we call solicitor-client privilege, so I don't think it's appropriate to include it here. I would suggest that we omit that reference, the words, “including” and to the end in paragraph (d) and the words “including” and to the end in paragraph (e).

I'll pause there.

Thank you.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you.

According to my list, the next speakers will be Mr. Green and Mr. White, but I'm going to suspend the meeting for a moment.

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

Mr. Fortin, I've neglected to mention one final aspect. I propose, on my comments with respect to the law clerks and any other legal counsel, that the first four lines of paragraph (g) also be omitted.

The gist of what I'm suggesting is that the materials are deposited with the committee rather than with the law clerks, so those references to the law clerks and any other legal counsel would be struck. I see the clerk right behind me, so I'm happy to give her a copy of what I'm proposing.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Virani, but we can't discuss multiple amendments at the same time. We have to deal with the amendment proposed by Senator White first. Then we can examine the amendments you want to propose. I see that you have numerous amendments. So we are going to examine them one by one, otherwise I'm going to have trouble following you, and I think that's actually important.

I propose that we hear Mr. Green and then Mr. White. If other people want to speak after that, they can do so, but for the moment we are examining the amendment proposed by Mr. White, which is to strike paragraph (j) and all the paragraphs after that from Mr. Motz's motion.

Mr. Green, the floor is yours.

[The Joint Chair, NDP, Matthew Green]

Mr. Chair, I'm actually going to reserve my comments for the omnibus amendments to come, and allow this one just to move forward.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you.

Mr. White, the floor is yours.

[Vernon White]

That was my suggestion: that we just deal with my amendment and then we can deal with the chopping and slicing. I think we need to deal with one amendment, if I may....

Thank you.

[The Joint Chair, NDP, Matthew Green]

Actually, I'm sorry. I do have one point on this amendment.

My concern is that when it comes to the demand for documents, if there isn't a clear date put forward, then the government's refusal, delay or refusal by delay to provide them.... Unless there's an actual date on it—

[Vernon White]

We can add that afterwards. After we get rid of this, we'll add that.

[The Joint Chair, NDP, Matthew Green]

Okay. When we go back to the main...? Got it.