Declaration of Emergency Committee on June 7th, 2022

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

I would suggest, respectfully, Mr. Daigle, that this committee also has a responsibility and that the government needs to take seriously the recommendations that are going to come out of this committee and not just out of the public inquiry.

[François Daigle]

I agree with you, yes.

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

There are media reports that came out at the beginning of June saying there were two secret or unpublished orders in council that were adopted during the period of the protests from January to February. The Privy Council Office has declined to release these orders in council or to make them public, citing a section of the federal access to information law that allows the government to keep secret documents as they feel is necessary.

Can you tell us about these orders in council?

[François Daigle]

I can tell you that my department drafted all of the orders related to the emergency. There was a proclamation, a declaration, an order and a regulation, and all four were made public. There were no secret orders related to the emergency that were taken.

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

Not from your department...?

[François Daigle]

From the government.

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

From all of government...?

[François Daigle]

From all of government.

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

Okay.

[The Joint Chair, NDP, Matthew Green]

Thank you.

We will now move on to Mr. Virani for five minutes.

Mr. Virani, the floor is yours.

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

Thank you very much.

Thank you to the witnesses.

I'll direct my questions to Deputy Minister Daigle, and it's probably going to be a bit punchy so just quick answers would be great.

Thank you in advance.

You talked about the Emergencies Act, and actually in its preamble, it refers to being charter compliant or being “subject to” the charter. Is that correct?

[François Daigle]

It does, yes.

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

When the Emergencies Act is enacted it doesn't operate to temporarily suspend charter rights in any way, does it?

[François Daigle]

It does not.

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

I want to delve into the charter.

When we talk about the charter itself, section 2(b) protects expression, but the case law and the jurisprudence doesn't extend that protection to anything except for peaceful non-violent expression.

Is that fair?

[François Daigle]

Freedom of expression is a freedom under our Charter of Rights and Freedoms but there are necessary limits to that, so hate speech is not protected and violence is not protected. Ms. Watts would be happy to provide more detail on the charter background if you're interested.

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

Let's skip to 2(c). Section 2(c) of the charter protects assembly but it specifically entrenches peaceful assembly. That's what's in the charter itself. .

[François Daigle]

Exactly, and that's why our orders are drafted and I went through section 2(a) of the order to explain that it was not any public assembly that was prohibited. It was only some specific types of assembly that create three specific harms.

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

Exactly, in the part that your department helped draft it talks about, in section c(i) of that original declaration, restriction on assembly “other than lawful advocacy, protest or dissent”, and that was deliberate.

[François Daigle]

That was deliberate, yes.

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

Nevertheless we know that the regulations that were enacted can have some impact on even what can be construed as non-violent or peaceful expression, but in your view, as you explained in your opening remarks, that impact was justified under what's called the “savings” clause under section 1 of the charter.

[François Daigle]

It is, and I think there's a difference to be made in terms of whether a law is charter compliant on its face, and whether in its application by police or others when they applied the law they did it in a charter-compliant manner.

What we do at the Department of Justice is review the law for charter compliance, with an understanding of how it could be applied, but we're not applying them. Others are applying the new measures.

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

Understood, but some of the things that would have worked into your analysis and the evaluation you gave was the fact that, given the Charter of Rights and Freedoms, they were limited in terms of time and in terms of scope.

Is that—

[François Daigle]

Exactly. They were proportional and they were very tied to the objectives, which were to bring an end to these illegal assemblies, the blockades and the occupation in Ottawa. They were proportional to the objectives. They were time limited, and they were very targeted.

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

The invocation of the declaration itself occurred some days—many days—into the protest, and it was revoked after about nine days in total, between the 14th and 23rd if I remember correctly.