Public Safety Committee on Feb. 1st, 2024

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

I'm getting to that.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I would renew my objection.

I know it's an important question, and I think it's important that the committee be seized with the act itself to deal with it, but I also note that this is a pattern of behaviour from our esteemed colleagues, because in the last meeting we were also disrupted by a motion on car thefts. I'm sure next time it will be about snow removal in Ottawa.

Anyway, I will renew my objection that this motion is out of order.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. McKinnon.

I'm going to suspend for a couple of minutes to review this situation with the clerk.

Thank you.

[The Chair, Liberal, Heath MacDonald]

We will continue with the meeting, but before we go any further, Mr. Holland and Mr. Neiman have other engagements, so I'm going to ask....

First of all, thank you for coming. Your testimony will be extremely important for Bill C-26.

I will ask you a question in case we don't have an opportunity to have you back, if that's appropriate, Mr. Clerk, and I hope it is. If we could ask for a brief of your notes that you were going to discuss with us today, we would certainly appreciate that so that we could put those into the report.

[Peter Schiefke, Liberal, Vaudreuil—Soulanges, QC]

Mr. Chair, would it also be prudent to perhaps ask for permission to send written questions, if we have any, to the witnesses and have the answers to those questions included in any briefs that they provide? I think that we all have some very important questions for which we'd like to have answers on the record.

Thank you, Mr. Chair.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Schiefke. Yes, that's a good point.

Carry on with the rest of your day. I hope it's as enjoyable as the first hour that you spent with us.

Now we'll go on to the ruling on cabinet confidentiality. We're still getting some information back on that, so we may have to decide on that a little later.

Mr. Motz, I'm going to let you continue, but at some point, if we do get the information back, then we may have to do a ruling.

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

Thank you very much, Mr. Chair.

I would like to actually respond with some rulings that exist with regard to whether committees can have access to documents.

[The Chair, Liberal, Heath MacDonald]

Mr. Motz, can you continue with your motion?

At some point, if I do that, then I'd be more than happy to listen to those submissions.

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

Okay. We have to discuss it. There is precedent already.

[The Chair, Liberal, Heath MacDonald]

Thank you.

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

As a matter of fact, Chair, in the interim report that I'm going through right now from the Special Joint Committee on the Declaration of Emergency, they actually produce.... You will see here in a bit about the jurisprudence that already exists for access to cabinet confidences and documents. I'll get to that in just a couple of minutes.

I'll pick up on paragraph 25 of the interim report from the Special Joint Committee on the Declaration of Emergency.

It reads:

25. Nathalie Drouin, the Deputy Clerk of the Privy Council and Associate Secretary to the Cabinet, and a former Deputy Attorney General, who appeared on a panel with Ms. Charette, offered this perspective under cross-examination:

the idea was to make sure that we interpret...the incorporation by reference....

I guess what I’m saying here is when the Legislator adopted the Emergency Act versus when the Legislator adopted CSIS Act, it was for different purposes. The purpose of doing an investigation under the CSIS Act is not the same purpose of triggering or invoking the Emergency Act for public order emergency. (Commission transcript, page 218)

26. The Honourable Bill Blair, P.C., C.O.M., M.P., President of the King’s Privy Council for Canada and Minister of Emergency Preparedness, told the Commission, on November 21, 2022, “for the purposes of the Emergencies Act that definition I believe has a broader application that is contained within that definition.” (Commission transcript, page 197)

27. The Honourable Marco Mendicino, P.C., M.P., Minister of Public Safety asserted that “the threshold was met in the broader interpretation of the law.” (Commission transcript, page 197)

In the report here, Chair, I'm noticing a theme developing between the testimony of ministers.

28. Meanwhile, the Honourable Dominic LeBlanc, P.C., K.C., M.P., Minister of Intergovernmental Affairs, Infrastructure and Communities, who also appeared on November 22, 2022, assured the Commission that “My colleague, David Lametti, will be here tomorrow. He’ll be able, I'm sure, to speak directly to the legal test that the government was using and concluded when the Governor in Council made the decision.” (Commission transcript, page 296)

29. Mr. Lametti, for his part, when he appeared on November 23, 2022, attempted to square the circle on the interpretation of the threshold: “while it is the same standard of the same magnitude, the interpretation of that standard is being done according to a wider set of criteria by a very different set of people with a different goal in mind, and that goal is given by the Emergencies Act and not the CSIS Act.” (Commission transcript, page 81)

30. He later clarified,

The threshold, as applied, as you’ve seen in testimony before this Commission, has evolved. The rules of thumb for interpreting that have evolved. The purpose of that Act is very different…. the very same words will have, not a wider meaning, but can be—will have a wider area of interpretation, according to the very structure of the Emergencies Act. And I think that is the interpretation that I would put to you as the one that best bears out in practice and is correct. (Commission transcript, pages 83 and 84)

31. Unfortunately, though, when he was asked to explain the assurances which Mr. Vigneault spoke about, and which are quoted above, Mr. Lametti was unable to answer (Commission transcript, page 170)

32. The Right Honourable Justin Trudeau, P.C., M.P., Prime Minister, was the final witness before the Commission on November 25, 2022, and he was also asked about the CSIS Act threshold issue. For his part, Mr. Trudeau explained,

The use of the definition in the CSIS Act, as I said before, has two very different contexts from the use of it by CSIS and the use of it in invocation of a public order emergency. The context is different, the purpose is different, the decision maker is different. The requirements around it, the inputs are different. (Commission transcript, pages 72 and 73)

This is a sidebar, Chair. Back in my day, if I was to listen to testimony in a court of law and I heard a number of people providing testimony, and they all sounded very much alike, I would certainly have the impression that they got their heads together in cahoots to compare their testimony pretrial.

Anyway, I'll continue:

33. Suffice it to say, the outstanding issue about the novel—and what some, like the CCLA, have called “creative”—legal interpretation has become a very salient issue in the issues before both your committee and the Commission. Indeed, it has been an irritant to more than just some of the members of your committee.

34. Commission counsel Gordon Cameron remarked, at the conclusion of Mr. Lametti’s examination, that the Commission had “attempted to find a way to lift the veil that has made such a black box of what has turned out to be a central issue before the hearing,” lamenting that “we just regret that it ends up being an absence of transparency on the part of the government in this proceeding.” (Commission transcript, page 171)

Those are powerful words from the counsel, Mr. Chair.

Paragraph 35 of our interim report states:

35. The Honourable Paul Rouleau, the Commission’s Commissioner, indeed, added to this observation,

as was mentioned by Commission Counsel, there’s an issue of the reasonableness of it. And I’m having a little trouble, and I don’t know if you can help me, how we assess reasonableness when we don’t know what they were acting on. And do we just presume they were acting in good faith without knowing the basis or structure within which they had made that decision? And you know of what I speak. (Commission transcript, page 176)

Again as a sidebar, Mr. Chair, unfortunately Justice Rouleau accepted the novel interpretation by the government without actually seeing it, which I think is a black mark on his work on the committee inquiry.

I want to go back and remind my colleagues around the table that this interim report was presented by the Special Joint Committee on the Declaration of Emergency of all parties. That is the opinion so far for the last half hour of this report that was submitted. It's not just me talking here.

36. Essentially, it boils down to an argument of “just trust us” as to the justification for a proclamation of a public order emergency which allows the federal Cabinet both to legislate by decree and to do so on matters which are normally a matter of provincial jurisdiction.

37. Why the government would take such a course of action and remain so opaque on this one area begs many questions, invites a lot of speculation, and prompts a search of other evidence in order to draw inferences.

38. For example, as other documents adduced before the Commission came to light, it became apparent that Mr. Lametti may have long been an advocate for strong action, up and including the invocation of the Emergencies Act.

39. Notably, on the third day of the protests—

—and that's critical—

—he texted his chief of staff, “Do we have a contingency for these trucks to be removed tomorrow or Tuesday?... What normative authority do we have or is some order needed? EA?” (Commission document SSM.CAN.00007851_REL.0001). By February 2, 2022, he was texting Mr. Mendicino, “You need to get the police to move. And the [Canadian Armed Forces] if necessary.” (Commission document SSM.CAN.00007851_REL.0001)

40. Meanwhile, Mr. Lametti’s interventions at a February 5, 2022, meeting prompted Royal Canadian Mounted Police Assistant Commissioner Mark Flynn, M.O.M., to remark to his colleagues in a group chat, “When the AG talks like this, we better get our own plan going”. Minutes later, in the same group chat, RCMP Commissioner Brenda Lucki, C.O.M., wrote, “I need to calm him [down]”, then, contemporaneously with Assistant Commissioner Flynn’s remark about Mr. Lametti, added, “ok so calm is not in the cards” (Commission document PB.NSC.CAN.00008043_REL.0001)

41. During the 10 minutes immediately following Mr. Lametti’s intervention which had caused such a stir, Commissioner Lucki sent Ontario Provincial Police Commissioner Thomas Carrique, O.O.M, several messages, including:

“Between you and I only, [Government of Canada] is losing/lost confidence in OPS...”

—meaning the Ottawa Police Service—

“we gotta get to safe action/enforcement”

“Cause if they want to go to Emergency Measures Act, you or may be brought in to lead…not something I want”

“Trying to calm them down, but not easy when they see cranes, structures, horses, bouncing castles in downtown Ottawa”

“Any suggestions for calming them?” (Commission document OPP00004583)

They're referring back to ministers and cabinet.

42. Could it be that the Attorney General (and possibly others of his Cabinet colleagues) were so committed to the invocation of the Emergencies Act that any legal advice was moulded to shape the desired answer?

43. Certainly, doubts about the strength of the case for invoking the Emergencies Act are acknowledged by Ms. Charette in her February 14, 2022, memorandum to Mr. Trudeau recommending the declaration of a public order emergency: “In PCO's view, this fits within the statutory parameters defining threats to the security of Canada, though this conclusion may be vulnerable to challenge.” (Commission document SSM.NSC.CAN.00003224_REL.0001, page 8)

As we can see, Mr. Chair, it certainly has been vulnerable to challenge.

44. These issues implore your committee to revisit its earlier orders for production of the legal opinions which the government relied upon—both for the benefit of [the] committee's work, but also that of the Public Order Emergency Commission. As Mr. Beatty had explained to [the] committee, when he appeared on March 29, 2022:

“If you were looking at the actions taken by the government flowing from the invocation and if you uncover evidence indicating that the invocation of the act was inappropriate, then everything that flowed from it was inappropriate, as well. It seems to me that they're part and parcel of the same thing.”

I think it's important that we read that again. This is Mr. Beatty, who actually crafted the legislation back in the mid-1980s:

“If you were looking at the actions taken by the government flowing from the invocation and if you uncover evidence indicating that the invocation of the act was inappropriate”—

—which has since been done—

—“then everything that flowed from it was inappropriate, as well. It seems to me that they're part and parcel of the same thing.”

Here it gets to the crux of the transparency, Mr. Chair.

45. It is incumbent, for full transparency, for there to be full disclosure of the legal opinions which the government relied upon in declaring the first-ever public order emergency in Canada, so that we can determine whether it was appropriate or inappropriate. We have questions which we want answered.

This is a committee of Parliament talking, with a report being sent to Parliament.

46. The preeminent right of committees to obtain answers to their questions—

—and this may be of importance to Mr. McKinnon—

—stems from the Houses' authority to institute and conduct inquiries and the power to send for persons, papers and records. These parliamentary privileges are rooted in the preamble and section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. These powers were delegated by both Houses to [the] committee—

—meaning the Special Joint Committee on the Declaration of Emergency—

—through the Houses' orders establishing the Committee.

47. Given their constitutional nature, a committee's powers—

—not just the special joint committee's power, but all committees' powers—

—supersede statutory law and other privileges, such as solicitor-client privilege. With regard to papers, there is no limit on the types of papers that can be requested; the only prerequisite is that the papers exist in hard copy or electronic format, and that they are located in Canada. They can be papers originating from or in the possession of governments, or from the private sector and civil society (House of Commons Procedure and Practice, 3rd ed., page 984; see also Senate Procedure in Practice, pages 199 and 200).

48. In practice, committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only [if] certain portions have been removed. Public servants and ministers may sometimes invoke their obligations under certain legislation, such as the Privacy Act or the Access to Information Act, to justify their position (House of Commons Procedure and Practice, 3rd ed., page 985).

49. As noted in House of Commons Procedure and Practice, these types of situations do not limit the power of committees to order the production of papers and records:

No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

This can also be seen in Speaker Milliken's rulings in the Debates from March 2011 and in Speaker Rota's ruling on June 16, 2021, Debates, pages 8548 to 8550).

50. Similarly, as noted in Erskine May, 25th edition, at paragraph 38.32, the same power to send for records is not considered subject to statutory exception in the United Kingdom House of Commons:

There is no restriction on the power of committees to require the production of papers by private bodies or individuals, provided that such papers are relevant to the committee's work as defined by its order of reference. Select committees have formally ordered papers to be produced by the Chairman of a nationalised industry and a private society. Solicitors have been ordered to produce papers relating to a client; and a statutory regulator has been ordered to produce papers whose release was otherwise subject to statutory restriction.

Paragraph 51 of the interim report goes on to say:

51. In recent years, there was a very high-profile instance of the United Kingdom House of Commons insisting on the production of government legal opinions when, amidst the Brexit debates, on November 13, 2018, it adopted a motion requiring the production of any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

52. On December 3, 2018, the Attorney General of England and Wales presented to Parliament a Command Paper which purported to describe the “overall legal effect” of the EU withdrawal agreement of November 25, 2018. On the same day he made a statement to the House; neither the Command Paper nor the statement made reference to the resolution of November 13, 2018, and the Command Paper did not purport to be a return to the resolution of the House.

53. Later that day, after representatives of five opposition parties alleged the government had not produced the documents required, Mr. Speaker Bercow ruled that there was a prima facie contempt (Official Report, column 625).The House of Commons, on December 4, 2018, adopted the following motion:

That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.

54. In response, the government produced a complete, unredacted copy of the Attorney General’s legal advice the next day. The Attorney General later said that he had complied with the order of the House of 4 December “out of respect of the House’s constitutional position.” (United Kingdom House of Commons Procedure Committee, “The House’s power to call for papers: procedure and practice” (2019), paragraph 68))

55. Your committee wishes to draw attention to what appears to be a possible breach of privilege, in relation to the production of legal opinion in response to its order of May 31, 2022, and recommends that the House take such measures as deemed necessary.

56. Further, your committee makes the following recommendation:

That an Order do issue for all legal opinions which the government relied upon in determining that

(a) the threshold of “threats to security of Canada”, as defined by section 2 of the Canadian Security Intelligence Service Act, required by section 16 of the Emergencies Act, had been met;

(b) the thresholds required by paragraphs 3(a) or (b) of the Emergencies Act, concerning a “national emergency” had been met; and

(c) the situation could not “be effectively dealt with under any other law of Canada”, as required by section 3 of the Emergencies Act, provided that

(d) these documents shall be deposited with the Office of the Law Clerk and Parliamentary Counsel, in both official languages, within 14 days;

(e) a copy of the documents shall also be deposited with the Office of the Law Clerk and Parliamentary Counsel, in both official languages, within 14 days, with any proposed redaction of information which, in the government’s opinion, could reasonably be expected to compromise national security;

(f) the Office of the Law Clerk and Parliamentary Counsel shall promptly thereafter notify the Speaker, who shall forthwith inform the Senate or the House, as the case may be, whether it is satisfied the requested documents were produced as ordered, provided that the Speaker shall, if the Senate or the House, as the case may be, stands adjourned, lay the opinion of the Office of the Law Clerk and Parliamentary Counsel upon the Table pursuant to Senate Rule 14-1(6) or House Standing Order 32(1), as the case may be;

(g) the Office of the Law Clerk and [the] Parliamentary Counsel shall transmit to the Public Order Emergency Commission a copy of the unredacted documents, referred to in paragraph (d), forthwith upon receipt;

(h) the Speaker shall cause the documents, redacted under paragraph (e), to be laid upon the Table at the next earliest opportunity, and, after being tabled, they shall stand referred to the Special Joint Committee on the Declaration of Emergency;

(i) representatives of the Office of the Law Clerk and Parliamentary Counsel shall discuss with the committee, at an in camera meeting, to be held within [a] month of the redacted documents being tabled, whether it agrees with the redactions proposed by the government; and

(j) the committee may, after hearing from the Office of the Law Clerk and Parliamentary Counsel, accept the proposed redactions, or reject some or all of the proposed redactions and request the production of those unredacted documents in the manner to be determined by the Special Joint Committee;

That the Clerk be directed to notify the Public Order Emergency Commission of the adoption of this Order; and

That a message be sent to the other House to acquaint it accordingly.

You can see by that information, Mr. Chair, that there's certainly some precedent to allow for documents to be presented to committees, even if they are behind cabinet confidences.

Now, as I move forward, I think it's important to get a sense of what the response has been. As we move on, I'm going to get into the actual poignant points of the decision from Justice Mosley, but I want to go through some of the comments in the media in response. I'm just going to pick out a few of the comment points that have come through.

Paul Wells writes, on the 23rd of January, the day of the actual decision by the Federal Court:

There will be all kinds of claptrap written about this decision, some of it from people who believe themselves to be friends of this government, so it's worth emphasizing that this challenge succeeded thanks in part to good lawyering from career civil-liberties defenders who went to fancy law schools and cannot be dismissed, as this government clearly dismisses far too many of its critics, as tools of Donald Trump.

He goes on to say:

My opinion on all of this is pretty far from any of the overheated schools of thought that usually debate the Convoy and its aftermath. I didn't really much like the Convoy, and less as it went on. But I believe it could be addressed. And to a great extent it was addressed, using ordinary law and ordinary police power. I think Trudeau's government, operating under extraordinary pressure and particularly under heavy commercial pressure from the United States, decided to break the emergency glass and grab the little hammer. I didn't like the precedent that set, so I'm happier with Mosley's ruling than with—

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

I have a point of order, Mr. Chair.

Put a finger where you're reading from to get back to it.

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

Pardon me?

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Put a finger where you're reading from to get back to it.

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

Thank you.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Mr. Chair, I think it's important to point out that while Mr. Motz reads from newspaper articles, we have witnesses waiting to appear on the issue of cybersecurity who have taken the time out of their busy day to come and provide their expertise while Mr. Motz proves his reading skills and simply reads newspapers.

[The Chair, Liberal, Heath MacDonald]

Thank you, Ms. O'Connell.

Mr. Motz, can you continue, please?

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

Thank you very kindly.

[The Chair, Liberal, Heath MacDonald]

Try to keep it as it applies as much possible to the—

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I have another point of order.

I would also request that even though Mr. Motz is reading from articles, he should give due recognition of the titles of the people—

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

I did. I'm reading what the authors wrote. I'm not going to change what they wrote.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Well, I think you could interject some respect there.

Thank you.

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

Unfortunately, that's what happens when you interject yourself.... I won't get into that.

[The Chair, Liberal, Heath MacDonald]

Let's not get into a debate, Mr. Motz.

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

Thank you, Mr. Chair.