Declaration of Emergency Committee on May 31st, 2022

[The Joint Chair, Bloc, Rhéal Fortin]

Does anyone else want to speak to the amendment proposed by Mr. White?

Mr. Motz, the floor is yours.

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

I would accept Senator White's amendment as a friendly amendment on the condition that we have a date inserted on that amendment that would say documents by a certain date....

[Vernon White]

I think we could bring an amendment right afterwards, putting in a date.

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

We don't want to lose sight of that.

[Vernon White]

Let's get rid of all this, and then we move forward on the pieces. Is that okay?

[The Joint Chair, Bloc, Rhéal Fortin]

So we are ready to vote on the amendment proposed by Mr. White.

[Vernon White]

It's just the amendment.

[The Joint Chair, Bloc, Rhéal Fortin]

Yes, the vote is only on the amendment.

I would point out that Mr. White's amendment is to strike paragraph (j) and the paragraphs after that from Mr. Motz's motion.

Madam Clerk, you may go ahead with the vote.

[The Joint Clerk, Ms. Miriam Burke]

Has a standing vote been requested?

[The Joint Clerk of the Committee, Mr. Mark Palmer]

Actually, I think it's unanimous.

[The Joint Chair, Bloc, Rhéal Fortin]

I'm sorry, I thought that Mr. Motz had asked for a standing vote.

So it's unanimous.

(Amendment agreed to [See Minutes of Proceedings])

[The Joint Chair, Bloc, Rhéal Fortin]

We can now move on to Mr. Virani's amendments.

Present them one at a time, please, Mr. Virani.

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

Right. There are two that are similar.

It targets the exact same sentiment, so I'll start with that, because it's perhaps the easiest.

In paragraphs (d) and (e), there is effectively the exact same language. What I'm proposing is that we strike the language in paragraph (d) that reads, “including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act”, and the exact same language in paragraph (e) where it says, “including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act”.

The basis for this is that that kind of analysis is part of the legal advice that would have been provided to the Minister of Justice , and as such would fall under the well-entrenched principle of solicitor-client privilege.

[The Joint Chair, Bloc, Rhéal Fortin]

Mr. White, the floor is yours. It will be Mr. Green's turn next.

[Vernon White]

Thank you very much, Mr. Chair.

I respectfully disagree. Having worked at Public Safety, I can tell you that the vast majority of the analysis we provided was not protected by solicitor-client privilege. In fact, it would not have come from a lawyer. I don't believe we should make the determination of whether it's solicitor-client privilege. That's for somebody else to make.

[The Joint Chair, Bloc, Rhéal Fortin]

Mr. Green, the floor is yours.

[The Joint Chair, NDP, Matthew Green]

Thank you, Mr. Chair.

I've been sitting on this for quite some time, and we heard in the opening remarks of Mr. Virani this notion, stated as fact, that this idea of Crown privilege in cabinet confidence is sacrosanct and supersedes the will of Parliament. I think the references were to his experience as a lawyer, but I would like to put before this committee—and I am going to ask for your grace in doing this—a compelling argument to the contrary.

I reference the powers to summon persons, papers and records that has been delegated to standing committees by the Canadian House of Commons under Standing Order 108(1) and by the Senate under rule 12-9(2).

Diane Davidson, then general legal counsel for the House of Commons, stated:

The extensive powers which a parliamentary committee enjoys are not commonly understood and therefore, at times, not properly respected.

This may be due, in part, to understatement. Consider, for a moment, the powers of Standing Committees as set out in Rule 91 of the Senate Rules and in Standing Order 108(1) of the House of Commons. These include the innocuously-stated authority “to send for persons, papers and records.” No distinctions are made between different types of documents or categories of witnesses. The very simplicity of the words granting this authority would appear to belie the strength of the power thereby delegated. When coupled with the rights a committee enjoys as a constituent part of parliament these are very full powers indeed.

I want to go a bit further and reference another important point, which is, again, on Crown privilege, that claims of Crown privilege do not diminish or derogate from the power of the House to require attendance, testimony or the production of documents.

Diane Davidson, again, when she was general legal counsel for the House of Commons, stated:

It is important to state that there exists no blanket immunity for the executive branch in making a public interest claim against disclosure of confidential information to a parliamentary committee. The so-called “Crown privilege” or its more modern designation “public interest immunity”, is often invoked by the Crown and more often by ministers in refusing to divulge matters or to produce certain documents in a lawsuit on the grounds that it would be contrary to the public interest to do so. It should be noted that this immunity

—and I put emphasis on this next point—

has never been formally acknowledged by the House of Commons as inhibiting its investigatory powers. The public interests...considered and weighed in judicial proceedings, are not the same as the public interests to be considered and weighed when evidence is sought for parliamentary purposes. In practice, parliamentary committees have more readily given consideration to claims of Crown privilege when invoked by a Minister in relation to national security matters and international affairs.... However, in the final analysis, the committee remains final arbiter of such claims.

Again, this was Diane Davidson, who was then general legal counsel for the House of Commons.

This is a convention. This has not, in any way, been something that has been given up by the House of Commons as a power. I think that, by framing this in the way in which it was framed in the opening comments of Mr. Virani, it in fact undermines our power as the grand inquisitor of the nation.

We see this time and time again. There are multiple lists. I heard that he framed it as being one of the foundational principles of the Westminster system. If he wishes to continue down that road, I have examples from many other jurisdictions where this has been defeated in its very notion in every Westminster system. I am happy to state that, should he have questions on those matters.

I am not clear that there is going to be a committee in my time in Parliament that is more important than the one that's before us. If we don't get to the heart of the matter in an open, public and transparent way, one that doesn't at every corner seek to reduce, redact and retract public inquiry into this, we're going to be back on this committee in no time flat, because that's where we are. I've stated time and time again, Mr. Chair, that regardless of what side of the issue Canadians are on, we have a duty as a committee to bring forth the truth and the facts of the matter.

The challenge we have, and I think the imbalance that this committee has, despite its very wise constitution of senators and party members, is that only one side has access to the facts.

As somebody who supported it, I want to be able to go back to my constituents with the facts of the matter, as presented in an evidenced-based way, that support the decision I made.

I'm also prepared, Mr. Chair, that if the facts bear out that a mistake was made, then I think our responsibility as a committee is to provide recommendations back to the House of Commons, the Senate and Parliament that will ensure that this doesn't happen again.

I don't want to allow the conversation around the table to continue to mislead Canadians on the power of this committee, or perhaps underestimate or understate it in a way that isn't actually true to the jurisprudence of the House of Commons.

Thank you.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Green.

On the list, there is now Mr. Motz. I have also added my name, because, although I'm chairing the meeting, I would like to speak. I see that Mr. Virani would like to speak on this subject again.

However, I see the green light blinking, so I think there is a question being called.

[The Joint Clerk, Ms. Miriam Burke]

No, I think it's just to indicate that the House is adjourned.

[The Joint Chair, Bloc, Rhéal Fortin]

Right. Because we're waiting for there to be votes in the Senate. I didn't know whether the light was going to blink at that point. From what I understand, you are going to let us know when it's time for the senators to go and vote.

Mr. Motz, the floor is yours.

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

Thank you.

I appreciate the evidence that was brought forward by Mr. Green. I think that it's exactly the point of doing this.

We've all given this thought on what our role is here in this committee. We remove the partisan hats, and our role is to get answers that Canadians deserve to have to the questions about transparency and accountability—that's all we want. We just want the facts, and we want the truth to come out and not be hidden, because it behooves us as a committee to gather that.

I've always wondered why.... There is a precedent—Mr. Green called it “a convention”—that allows the belief that the executive branch can withhold whatever information it deems necessary from Parliament itself, from a committee of Parliament, which represents Canadians. I appreciate that.

I certainly don't support Mr. Virani's removal of (d) and (e). Those who redact those documents, Arif, let them make that decision. Let's not make it for them.

We need to ask for full, frank disclosure and accountability of whatever information is there, on everything that the government relied upon to make its decision on invoking this act—on everything. Every possible angle the government looked at needs to be reviewed and redacted as necessary, given the parameters that redactions occur at. As Mr. White said before, then we make the decision. Did we get enough information? Do we have enough to make an informed decision on moving forward? I think that would be reasonable. The whole idea is to ask for the information and see what we get.

[The Joint Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Motz.

I'm going to speak now.

I understand Mr. Virani's concern. However, I agree 100% with what Mr. Green and Mr. Motz have said. I think we are here to shed some light on the situation. We can't tell people, even before getting an objection to the production of a document or some information, that in reality they won't need to object because we are going to censor ourselves. I think it would be paradoxical to go about it that way.

Mr. Motz's motion refers to an order to produce two things: the security assessments and the legal opinions that the government relied on in determining certain things, among them:

(d) the Emergency Measures Regulations were compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities ...

It refers to an analysis relied on, and not necessarily a legal opinion. It seems that an analysis was done, or should have been done, at least, and it's that analysis that the motion is requesting.

If, after learning of this motion, the minister tells us that he can provide that analysis, but not the legal opinion it is based on, because that is covered by solicitor-client privilege, then we will have to decide whether we agree or we want something else.

For the moment, we are asking the minister to send us the security assessments and legal opinions he used in doing the analysis of his responsibilities under section 4.1 of the Department of Justice Act. That seems to be minimal in the context of our work.

That is what I wanted to say.

I now turn the floor over to Mr. Virani.

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

Thank you, Mr. Fortin, Mr. Motz and Mr. Green.

Just to clarify one component, the aspects included in paragraphs (d) and (e) refer to section 4.1 of the Department of Justice Act. Section 4.1 of the act contains the requirement for the Minister of Justice to ensure that bills, statutes, regulations, etc. that are being enacted by the government are charter compliant. From my perspective—and I believe this is shared by the members of this committee—when you're looking at charter compliance, you are looking at.... I know the word “analysis” is used in the text Mr. Motz has drafted. When you're dealing with charter compliance, of necessity you're going to be looking at legal advice as to whether something is onside or offside of the charter, thus triggering concerns about solicitor-client privilege.

I just want to make it crystal clear that what we're talking about here is only solicitor-client privilege. Previously, in a different intervention, I mentioned things like cabinet confidence, but this is not about cabinet confidence, and it's certainly not about the notion of Crown privilege, which is a more generalized notion.

I just wanted to put that out there.

Thank you.

[The Joint Chair, Bloc, Rhéal Fortin]

Mr. Harder, the floor is yours. It will be Mr. Green's turn next.

[Peter Harder, Senator, Ontario, PSG)]

I'll be very brief. I don't think we should prejudge what is sent to us. We should ask for documents in the fullness of the motion. I don't want to prejudge the issues around cabinet confidence and solicitor-client privilege. I probably would side with a generous interpretation of that, but we'll come to that discussion. Let's ask now.

I know that there are analyses and advice given, even on charter compliance, which the government has put forward on bills and may choose to put forward. I hope it will, but we'll judge that when we see what we get. Let's not fight that fight prematurely. We'll come to it. We may have a difference of views, but we'll then have that discussion and have a vote, so let's vote on it to get the broadest documentation possible.