Evidence of meeting #91 for Public Safety and National Security in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was emergencies.
A video is available from Parliament.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
I don't know. It could be a couple more days, to be honest with you, and I apologize to the witnesses.
The issue that we as a committee and that government should be seized with is remedying the egregious overreach of the act, so quite honestly....
I again apologize to the witnesses. Bill C-26 is important, but to me, this issue supersedes it. Bill C-26 has been on the books since 2022, so—
Conservative
Larry Brock Conservative Brantford—Brant, ON
I have a point of order, Mr. Chair.
I'm trying to hear the response. You asked Mr. Motz to provide a response to Madame Michaud's intervention. I'm sitting right beside my colleague Mr. Motz, and all I can hear is chirping from Mr. Bittle. He is laughing. This is extremely disruptive to the functioning of the committee, sir.
Liberal
The Chair Liberal Heath MacDonald
Everyone, let's....
Mr. Motz, could you please continue? Thank you.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you, Mr. Chair.
I would recommend that the witnesses today be excused, because I have no intention of ending until I'm finished.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you.
Again, I apologize to the witnesses.
Liberal
The Chair Liberal Heath MacDonald
They can be dismissed in 10 minutes. They're on for the first hour.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
They're the first set of witnesses, yes. Thank you.
I'll continue with the interim report on paragraph 14: “François Daigle, Deputy Minister of Justice and Deputy Attorney General of Canada, replied to this order, on June 29....”
I'm sorry. I read that already.
Paragraph 16 says:
16. The matter of the interpretation of the thresholds, including the CSIS Act threshold, has lately become a central issue in the proceedings before the Public Order Emergency Commission.
17. According to a pre-hearing interview held with Commission counsel, David Vigneault, the Director of the Canadian Security Intelligence Service,
stated that at no point did the Service assess that the protests in Ottawa or elsewhere ... constituted a threat to the security of Canada as defined by section 2 of the CSIS Act, and that CSIS cannot investigate activity constituting lawful protest....
Mr. Vigneault emphasized that the threshold imposed by the CSIS Act and under which the Service operates is very specific. For example, the determination that something may not constitute a threat to national security under section 2 of the Act does not preclude a determination that a national security threat under a broader definition, or from the perspective of the public, does exist.
18. Despite February's protests, “at no point”, constituting a threat so as to trigger the Service's own investigative thresholds—which, under section 12 of the Canadian Security Intelligence Service Act, is based on reasonable grounds to suspect, a much lower legal standard than the Governor in Council's burden, under section 17 of the Emergencies Act, of reasonable grounds to believe—Mr. Vigneault recommended to the Prime Minister that a public order emergency be declared, “based on both his understanding that the Emergencies Act definition of threat to the security of Canada was broader than the CSIS Act, as well as based on his opinion of everything he had seen to that point” (Commission document WTS.00000079, page 8).
19. In his public testimony, on November 21, 2022,
—some months later—
Mr. Vigneault confirmed he had been given advice encouraging him to apply a broader definition to the Emergencies Act threshold:
He stated:
So when that was first brought up, the fact that the Emergencies Act was using the same words as the CSIS Act to define the threat, so imported into the Emergencies Act, I needed to understand for myself and for, you know, the course of this, what was the implication of that.
And that's when I was assured that, you know, they were—it was a separate understanding. You know, the confines of the CSIS Act, the same words, based on legal interpretation, jurisprudence, Federal Court rulings and so on, there was a very clear understanding of what those words meant in the confines of the CSIS Act, and what I was reassured by, is that there was, you know, in the context of the Emergencies Act there was to be a separate interpretation based on the confines of that Act (Commission transcript, page 58).
20. Under cross-examination by counsel for the Canadian Civil Liberties Association (CCLA), Mr. Vigneault acknowledged that this was the result of a legal opinion he sought from the Department of Justice (Commission transcript, page 95).
21. This novel interpretation of a “broader definition” became a theme in the evidence given by ministers and senior officials before the Commission—
Liberal
The Chair Liberal Heath MacDonald
Sorry, Mr. Motz, for the interruption. I was just asking a clarification question to the witnesses on when they leave, on whether they leave at 9:15 or they continue on, because there may be a possibility when you're finished that we can give questions to them. I'm sorry for the interruption. That was my mistake.
Please continue.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
That's fine. Thank you, Chair.
As I was saying with regard to paragraph 21, the committee was seized with this now novel interpretation of a broader definition, and that became a theme of the evidence given by ministers and senior officials. What's interesting is that when the ministers and some senior government officials provided their testimony before the Special Joint Committee on the Declaration of Emergency in early 2022, there was no mention from any of them when questioned about that very high threshold that is required in section 2 of the act. There was no mention by any of them of this broader interpretation or broader definition. In fact, it was only when Lametti, Freeland, Mendicino, Trudeau and other government officials testified at the Rouleau commission—
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I have a point of order.
I'd ask the member to recognize these individuals by their proper titles, per Standing Order 18.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Sure.
Minister Lametti, Minister Freeland, Minister Mendicino, Prime Minister Trudeau and other officials testified at the Rouleau commission in the fall of 2022. That was the first time we heard that everybody was relying on this broader interpretation, this interesting term.
I and many other Canadians are left to wonder why it took so long from when they started providing testimony to the Special Joint Committee on the Declaration of Emergency in April of 2022. Did it take them that long before...? We never heard about it before then.
I have some opinions, Chair, on why there was a delay when they were trying to convince Canadians. They acted unreasonably and illegally to invoke the act by relying on some broader interpretation.
One, I don't believe for a moment that any broader interpretation existed when the Emergencies Act was invoked, as they suggest. If it did exist, it would have been trotted out by the ministers and the government officials at the earliest opportunity.
Two, this broader interpretation has remained secret. It's been shrouded behind cabinet confidences and shrouded behind solicitor-client privilege, and they have refused to disclose it to our committee, to the Special Joint Committee on the Declaration of Emergency, refused to disclose it to Commissioner Rouleau, and refused to disclose it to Justice Mosley in his decision.
We all know this government has a history of operating outside the law. When they are not content to operate within the confines of the law, they attempt to break it. Does anyone remember SNC-Lavalin? When they try to justify their unreasonable and illegal overreach, they say they had a broader interpretation. What that really means is this government and this Prime Minister believe they are above the law and are not confined by it.
That is dangerous, folks; that is very dangerous. Thankfully, the Federal Court has ruled otherwise in a very important landmark decision.
I'm going to go back to the interim report, Chair, if I may, which says in paragraph 22:
22. Jody Thomas, National Security and Intelligence Advisor to the Prime Minister, appeared before the Commission on November 17, 2022. She asserted, “My understanding is that the Emergencies Act is assigned a meaning as defined in the CSIS Act but is not limited by the CSIS Act”, and that “it can go beyond what the Act says which is a threat to the security of Canada” (Commission transcript, pages 238 and 239).
23. When cross-examined by CCLA counsel
—counsel for the Canadian Civil Liberties Association—
on November 17, 2022, on the threshold “in the Emergencies Act [being] tied exclusively and exhaustively to the definition in the CSIS Act”, Ms. Thomas answered, “The Federal Government legal opinion is different” (Commission transcript, page 271).
24. For her part, Janice Charette, the Clerk of the Privy Council and Secretary to the Cabinet, who appeared on—
Bloc
Kristina Michaud Bloc Avignon—La Mitis—Matane—Matapédia, QC
I have a point of order, Mr. Chair.
I'm listening to Mr. Motz, and it seems to me that the motion he's introducing today could be presented to another committee, such as the Special Joint Committee on the Declaration of Emergency, which has already studied the invocation of the Emergencies Act. Do you know that Mr. Motz himself is vice-chair of that committee? He could very well introduce this motion to that committee. That way, the Standing Committee on Public Safety and National Security could focus on studying Bill C‑26. I suggest he do that. It would be much more efficient if this motion were studied by the Special Joint Committee on the Declaration of Emergency.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
I respect my colleague and I will tell her that the Special Joint Committee on the Declaration of Emergency will be meeting and I'm sure will be discussing this further. This committee also has a responsibility to—
NDP
Peter Julian NDP New Westminster—Burnaby, BC
On a point of order, what Mr. Motz has just said is very important. Is the committee meeting next week?
NDP
Peter Julian NDP New Westminster—Burnaby, BC
That's my understanding.
If that's the case, then it would seem to me a bit premature to have consideration of this motion, as well intended as it might be, if we already have the Emergencies Act committee meeting next week to discuss what was an important ruling. It would seem to me that we, as a committee, could then be seized with the motion afterwards.
We do have witnesses. It costs thousands of dollars to bring them here, and it would be wise, I think, as Madame Michaud has said, for us to hear from the witnesses so that we can improve the legislation that is so important on cybersecurity. It is costing taxpayers thousands of dollars to bring the witnesses here.
Following the meeting of the Emergencies Act committee next week would be a good time, I think, to have the discussion around the motion.
Liberal
The Chair Liberal Heath MacDonald
Thank you, Mr. Julian.
Mr. Motz, do you have any response whatsoever?
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
I have lots of responses to that, Chair.
I'll keep it to this. Several committees can also be seized with dealing with the same issue.
The joint chairs are meeting next week. There is no full meeting of the special joint committee next week. It's important to realize that while the focus of the special joint committee is different from this committee's focus, this committee deals with national security and emergency preparedness. I don't see a more fitting committee than this one.
Thank you, sir.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I have a point of order.
Some time having passed, I would like to renew my objection to this motion on the basis that I don't believe the committee has the power to deal with it.
Mr. Motz mentioned the SNC-Lavalin inquiry. I was a member of the justice committee at that time. In order for us to deal with matters pertaining to that inquiry, which involved cabinet confidences and solicitor-client privilege, cabinet had to explicitly grant access to those. We as a committee had no power to gain that access.
I would renew my concern that this motion exceeds the authority of this committee.
The House itself cannot override cabinet confidence. It requires an act of Parliament to do that, or the cabinet itself.