Public Safety Committee on Feb. 1st, 2024

[The Chair, Liberal, Heath MacDonald]

I call this meeting to order.

Welcome to meeting number 91 of the House of Commons Standing Committee on Public Safety and National Security.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely by using the Zoom application.

I would like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking.

To prevent disruptive audio feedback incidents during our meeting, we kindly ask that all participants keep their earpieces away from the microphone. Audio feedback incidents can seriously injure interpreters and disrupt our proceedings.

This is a reminder that all comments should be addressed through the chair.

Pursuant to the order of reference of Monday, March 27, 2023, the committee is resuming its study of Bill C-26, an act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other acts.

Today we have two panels of witnesses. I would like to welcome our witnesses for the first panel.

From the Business Council of Canada, we have vice-president of policy and legal counsel Trevor Neiman. From the Canadian Internet Registration Authority, we have Byron Holland, president and CEO.

Up to five minutes will be given for opening remarks, after which we will proceed with rounds of questions.

Welcome to all.

Now I invite Mr. Neiman to make an opening statement, please.

[Trevor Neiman, Vice-President, Policy, and Legal Counsel, Business Council of Canada]

Mr. Chair and committee members, thank you for the opportunity to take part in your study of Bill C-26.

Founded in 1976, the Business Council of Canada is composed of approximately 170 chief executive officers who run Canada's most innovative and successful businesses. Our organization represents a broad cross-section of Canada's critical infrastructure sectors.

Today I will restrict my comments to part 2 of the bill, which is the proposed critical cyber systems protection act.

I'll begin my substantive remarks by underlining that Canada's leading businesses are committed to maintaining a strong and resilient security posture in the face of growing cyber-attacks. Indeed, in a survey of our members, every single chief executive officer indicated that cybersecurity was either a high or very high priority for their business.

Our members are backing their commitment to cybersecurity with significant resources. In critical infrastructure sectors, most of our member companies each invest well over $100 million in Canada per year on measures to prevent, detect and respond to cybersecurity incidents. A plurality of these same members invest over $500 million individually in the same measures.

As cybersecurity risks to the country grow, so too do the resources that our members plan to devote to protecting Canadians. Over the next two years, over two-thirds of our members plan to increase both their cybersecurity spending and their personnel staffing by at least 25%.

However, we cannot lose sight of the fact that defending Canadians against cyber-attacks is very much a team sport, requiring close coordination between government and industry.

That is why the Business Council of Canada supports the objectives of recent government cybersecurity initiatives. This includes part 2, which, if properly drafted and implemented, can improve the overall cyber-resiliency of the Canadian economy by establishing a baseline of cybersecurity across critical sectors.

It's also important to note that the enactment of part 2 would bring Canada's cybersecurity framework in line with the best practices among our closest security partners. In a period of growing global tensions, Canada must move in lockstep with its closest allies and strengthen its cyber-resiliency; otherwise, Canada risks being perceived as a weak link, which could have severe consequences for Canadians' future security and prosperity.

Of course, no public or private sector initiative is perfect. It should therefore be no surprise that Canada's business leaders would like to see targeted amendments to part 2. In the interest of time, I will highlight just three of the most common suggestions for improvements that I've heard from our members.

First, part 2 should be amended to adopt a risk-based methodology that would impose regulatory requirements on designated operators proportionate to their level of risk. Imposing fewer and less onerous obligations on low-risk operators that have well-established cybersecurity programs would allow them to spend more of their finite resources on incident prevention activities. Regulators, on the other hand, could dedicate more of their finite resources toward the high-risk operators that pose the largest threat to Canadians.

Second, part 2 should be amended to place fair and reasonable limitations on the cabinet's power to issue cybersecurity directions. In the absence of statutory safeguards, part 2 would allow cabinet to issue any direction, regardless of whether such a measure would be effective in reducing a risk to a critical system. Directions could also be issued without cabinet first consulting with impacted provinces and territories, negotiating in good faith with designated operators or considering relevant factors, such as the potential cost of a direction, whether reasonable alternatives exist to issuing a direction and the potential consequences of a direction on competition, services or customers.

Third and last, part 2 should be amended to define key terms more precisely, such as “cyber security incident” and “critical cyber system”. The current definitions of these terms are overly broad. This would likely result in reporting inconsistencies, as well as the over-reporting of immaterial incidents, which could overwhelm government authorities.

I'll conclude by noting that part 2 is just one of several national security reforms that are urgently needed to protect Canadians. As a priority, the Business Council of Canada urges that lawmakers also amend the CSIS Act to enable CSIS to proactively share threat intelligence with Canadian companies when it's in the public interest, subject to all necessary safeguards and oversight.

This and nearly 40 other much-needed reforms are included in the Business Council of Canada's most recent report, “Economic Security is National Security”. That report is publicly available on our website.

Thank you for the opportunity to speak. I look forward to your questions.

[The Chair, Liberal, Heath MacDonald]

Thank you.

Mr. Holland, go ahead, please.

[Byron Holland, President and Chief Executive Officer, Canadian Internet Registration Authority]

Mr. Chair and members of the committee, my name is Byron Holland. I am the president and chief executive officer of the Canadian Internet Registration Authority, or CIRA. Thank you for the invitation to share our views and recommendations on Bill C-26.

CIRA is a private, not-for-profit organization best known for operating the “.ca” registry, with 3.4 million .ca domain names under management. CIRA's core mandate is a safe, stable and secure operation of the .ca domain and the global network that ensures that it's available no matter where in the world you are. We also have a broader mission to promote a trusted Internet, which we work toward by providing high-quality registry, domain name system and cybersecurity services, and by investing in the Internet community in Canada.

CIRA participates in numerous fora to promote the security and resilience of the Internet. Recently, this has included ISED's Canadian forum for digital infrastructure resilience and the CRTC interconnection steering committee. We are also long-time participants in global Internet governance. This includes extensive engagement with the Internet Corporation for Assigned Names and Numbers, or ICANN, the global overseer and coordinator of the domain name system that ensures that your web browser can reach websites like Canada.ca. We also contribute to the Internet Engineering Task Force, or IETF, where the technical standards that underpin the Internet are developed.

CIRA also provides cybersecurity services to help Canadians stay safe online. They include Canadian Shield, our free cybersecurity service that protects an estimated four million Canadians from online threats; DNS Firewall, our enterprise-level DNS protection used by more than a thousand Canadian organizations, including numerous critical cyber systems; and Anycast DNS, our global infrastructure that increases the performance and resilience of top-level domains like .ca, and helps mitigate malicious activity such as distributed denial of service attacks from foreign actors. Moreover, CIRA collaborates with several institutions to keep these services up to date, including the Canadian Centre for Cyber Security and the Canadian Centre for Child Protection.

CIRA strongly supports the government's objective to raise the baseline level of cybersecurity across critical infrastructure through Bill C-26.

We offer three recommendations to part 2 of Bill C-26, also known as the critical cyber systems protection act, or CCSPA, to better balance the bill's cybersecurity objectives with well-established best practices and oversight, information sharing and transparency.

First, to promote more effective oversight, the issuance of cybersecurity directions under the CCSPA should be subject to section 3 of the Statutory Instruments Act. This would ensure that cybersecurity directions are examined by the Clerk of the Privy Council in consultation with the deputy minister of justice.

Second, to increase confidence in the proposed information sharing enabled by the CCSPA, conditions on the use of information should be strengthened. Currently, Bill C-26 does not explicitly limit how government entities can use information collected under certain sections. For example, CIRA believes it would not be appropriate for the CSE to use data collected under section 15 of the CCSPA for purposes other than its cybersecurity and information assurance mandate.

Third, to promote transparency, the CCSPA should be amended so that information on cybersecurity directions is reported to Parliament on an annual basis. This would include information on the number of cybersecurity directions issued and revoked, as well as the number of designated operators impacted.

We have provided specific legislative wording for each of our recommendations in our written submission.

In conclusion, CIRA recognizes the need for some level of secrecy and timeliness in matters of national security and public safety. However, secrecy and expedience must be counterbalanced by the addition of provisions in Bill C-26 that would enhance Canadians' trust and confidence in the proposed legislation.

Thank you.

[The Chair, Liberal, Heath MacDonald]

Thank you, Mr. Holland.

I'll now open the floor to questions.

Mr. Motz, you're up first for six minutes.

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

Thank you very much, Chair.

Thank you to the witnesses for being here.

While I and my colleagues certainly agree that Bill C-26 is an important piece of legislation that has been a long time coming, and that we need to protect our critical infrastructure, I'm going to take this opportunity to move the following motion, which has been properly placed before the committee:

That in light of the recent Federal Court ruling, which found that the government's use of the Emergencies Act in February of 2022 was illegal and that the special criminal laws subsequently created by the Liberal Cabinet were an unconstitutional breach of Canadians' Charter rights, the Committee undertake a study, pursuant to Standing Order 108(2), of the Department of Justice's role in supporting the government's illegal and unconstitutional decisions concerning the Emergencies Act, together with the consequences which follow the Court's decision, provided that

(a) the Committee invite the following to appear, separately, as witnesses for at least one hour each:

(i) the Honourable David Lametti, the Minister of Justice and Attorney General of Canada at the time;

(ii) the Honourable Marco Mendicino, the Minister of Public Safety at the time;

(iii) the Honourable Arif Virani, the Minister of Justice and Attorney General of Canada;

(iv) representatives of the Canadian Civil Liberties Association, and

(v) representatives of the Canadian Constitution Foundation; and

(b) an order do issue for all legal opinions which the government relied upon in determining that

(i) 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;

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

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

(iv) 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 under section 4.1 of the Department of Justice Act, and

(v) the Emergency Economic Measures Order was compliant with the Canadian Charter of Rights and Freedoms, including the analysis relied upon by the Minister of Justice in discharging his responsibilities under section 4.1 of the Department of Justice Act,

provided that these documents shall be deposited with the Clerk of the Committee, without redaction and in both official languages, within seven days of the adoption of this order.

Now, it's critically important that we understand why we are bringing this motion forward. It is very important to remember that the Federal Court rendered a decision last week that was critically important, and it should have been a landmark for this country and for this government.

In order for us to have a clear understanding of what the Emergencies Act was about—how it came to be—and of the decision of this Federal Court and all those sorts of different nuances, I want to take some time just to provide a very paraphrased version, a summary, of the Federal Court—just a couple of pages.

In Ottawa on January 23, the Honourable Justice Richard Mosley of the Federal Court issued his decision. In part, it read as follows:

Summary: Four groups applied for judicial review of the decision by the Governor in Council [GIC] to declare a Public Order Emergency under the Emergencies Act....

The February 14, 2022 Proclamation Declaring a Public Order Emergency [the “Proclamation”] and the enactment of temporary special measures in order to deal with protests in various parts of the country—which included the occupation of the downtown core of Ottawa and blockades of ports of entry—were under review.

The decision went on to say:

This was the first time the Act was invoked since its enactment in 1988. The Proclamation, the Emergency Measures Regulations [the “Regulations”] and the Emergency Economic Measures Order [the “Economic Order”] adopted under the Act had a threefold impact: a) they prohibited a range of activities relating to protests in designated areas, b) they required third parties to assist police in ending the protest and c) they authorized financial institutions to disclose information on designated persons and entities to federal officials, and to suspend their accounts.

The Applicants/Parties raised issues which lead to the following...questions:

1. Was the Proclamation unreasonable?

With respect to the first question, the Court considered the decision under the reasonableness standard of review and concluded that the answer was yes, the Proclamation was unreasonable and illegal (“ultra vires”) of the Act.

Those of you who are lawyers will understand “ultra vires”.

The court said that they acted “beyond one's legal power and authority”. That's what the Latin term “ultra vires” means. It literally means that it's beyond the scope, or in excess of, power and authority.

Judge Mosley's decision continued:

While the Court recognized that the occupation of downtown Ottawa and the blockades of the ports of entry were matters of serious concern calling for government and police action, the threshold of national emergency required by the Act was not met. Under paragraph 3(a) of the Act, a national emergency is an urgent and critical situation that exceeds the capacity or authority of the provinces to deal with it, and that cannot be effectively dealt with under any other law of Canada. The Proclamation applied the temporary special measures in all of Canada's provinces and territories, despite the lack of evidence that it was necessary. Apart from the situation in Ottawa, the police were able to enforce the rule of law by applying the Criminal Code and other legislation.

While the conclusion that the Proclamation was illegal (“ultra vires”) was sufficient to dispose of the applications, the Court addressed the other issues should it be found to have erred in its findings on the first question.

Second, the Court considered the threshold for “threats to the security of Canada.” Section 2 (c) of the Canadian Security Intelligence Service Act [CSIS Act] defines threats to the security of Canada as “activities...directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”

Under s. 17 of the Emergencies Act, the GIC required reasonable grounds to believe that the standard set out in section 2 of the CSIS Act had been met.

The evidence in the record before the Court did not support a finding that the impugned activities reached that threshold.

The second question as put forward by Justice Mosley was as follows:

2. Did the powers created by the Regulations and the Economic Order violate sections 2(b)(c)(d), 7 or 8 of the Canadian Charter of Rights and Freedoms, and, if so, could they be saved under section 1 of the Charter?

What do those sections actually say in the charter? Section 2 says:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Section 7 talks about “Life, liberty and security of person”:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance of the principles of fundamental justice.

Section 8 of the charter deals with “Search or seizure”:

Everyone has the right to be secure against unreasonable search or seizure.

Justice Mosley asks if they could “be saved under section 1 of the Charter”. Section 1 says:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Justice Mosley continues:

Concerning the Charter, the Court found that the Regulations infringed the guarantee of freedom of expression under s. 2(b), as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace.

The Economic Order infringed s. 8 of the Charter by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts.

The infringement of sections 2(b) and 8 of the Charter were found to be not minimally impairing, and could not, therefore, be justified under s. 1 of the Charter.

The Court found that there was no infringement of the rights to freedom of peaceful assembly and of association in paragraphs 2(c) and (d) of the Charter. Any infringement of s. 7 respecting the liberty interests of the individual was found to be in accordance with the principles of fundamental justice and thus not a breach of the Charter.

Now, I think it's important to understand how things transpired, why we had a protest and how we got to this point in the first place. It has to do with the increasing degrees of overreach and abuse of power by the Liberal government and its trampling of the charter rights of Canadians.

In January 2022, nearly two years after the start of the COVID pandemic, Canadians were growing frustrated with government restrictions and mandates. The straw that broke the camel's back was the order that truckers—cross-border truckers, especially—and other essential workers would no longer be exempted from vaccine requirements. This was a threat to their livelihoods and a violation of their rights. For them, enough was enough.

They gathered from across Canada and came to Ottawa and other locations not just to voice their frustrations but also to be heard by this government. I think it's important to understand that this government had no interest in listening to them, and I know that first-hand.

I personally worked vigorously behind the scenes to arrange meetings between the then-minister of transportation, Omar Alghabra; the then-minister of public safety, Marco Mendicino; and protest organizer Tamara Lich, with the understanding that such a conversation would result in the protest being dismantled. However, they refused all attempts to make that happen personally with them, even on a phone call. The government completely refused.

I think, quite honestly, that their unwillingness to dialogue from the very beginning.... Had they changed their attitude, the situation would certainly have been totally different, and it could have been avoided.

The Prime Minister also added to this. He seemed to be fine stoking division, calling people names and allowing frustrations and tensions to grow to the point that he and his cabinet decided to take their overreach and disregard for charter rights to the next level by stepping outside of the law and their lawful authority by invoking the Emergencies Act for the first time in history.

What exactly what did that order say? I think it's important that Canadians are reminded of what the Emergencies Act actually said.

I will quote from the February 14, 2022, Government of Canada bulletin, which reads:

Whereas the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency;

And whereas the Governor in Council has, before declaring a public order emergency and in accordance with subsection 25‍(1) of the Emergencies Act, consulted the Lieutenant Governor in Council of each province, the Commissioners of Yukon and the Northwest Territories, acting with consent of their respective Executive Councils, and the Commissioner of Nunavut;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 17‍(1) of the Emergencies Act, directs that a proclamation be issued

(a) declaring that a public order emergency exists throughout Canada and necessitates the taking of special temporary measures for dealing with the emergency;

(b) specifying the emergency as constituted of

(i) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,

(ii) the adverse effects on the Canadian economy—recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19)—and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,

(iii) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,

(iv) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and

(v) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians; and

(c) specifying that the special temporary measures that may be necessary for dealing with the emergency, as anticipated by the Governor in Council, are

(i) measures to regulate or prohibit any public assembly—other than lawful advocacy, protest or dissent—that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area, to regulate or prohibit the use of specified property, including goods to be used with respect to a blockade, and to designate and secure protected places, including critical infrastructure,

(ii) measures to authorize or direct any person to render essential services of a type that the person is competent to provide, including services related to removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade anywhere in Canada, to relieve the impacts of the blockades on Canada’s public and economic safety, including measures to identify those essential services and the persons competent to render them and to provide reasonable compensation in respect of services so rendered,

(iii) measures to authorize or direct any person to render essential services to relieve the impacts of the blockade, including measures to regulate or prohibit the use of property to fund or support the blockade, to require any crowdfunding platform and payment processor to report certain transactions to the Financial Transactions and Reports Analysis Centre of Canada and to require any financial service provider to determine whether they have in their possession or control property that belongs to a person who participates in the blockade,

(iv) measures to authorize the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference,

(v) the imposition of fines or imprisonment for contravention of any order or regulation made under section 19 of the Emergencies Act; and

(vi) other temporary measures authorized under section 19 of the Emergencies Act that are not yet known.

I think it's also important for Canadians to appreciate that the Emergencies Act laid out requirements for the government to do certain things during and after the invocation. Subsection 62(1) of the Emergencies Act says that there needs to be a review by a parliamentary review committee. It says, “The exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed by a committee of both Houses of Parliament designated or established for that purpose.” I'll get back to that in just a minute.

The other thing that was required was an inquiry. Subsection 63(1) says, “The Governor in Council shall, within sixty days after the expiration or revocation of a declaration of emergency, cause an inquiry to be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”

I think it's important also to appreciate that Justice Rouleau's decision did not provide Canadians with the confidence they were seeking on both sides of this discussion. He made a decision that the very high threshold required was met; however, he did so reluctantly, very reluctantly, and he says so in his decision. He accepted the government's broader interpretation of the Emergencies Act without being given an opportunity to see it. He was troubled by that particular move. He also included in his report that he did not come to this decision easily, and interestingly, he states that the facts that he based his decision on were not overwhelming.

To me, the statement that says it all about how Canadians should lack confidence in his decision is that a reasonable and informed person could reach a different conclusion than he arrived at. That does not actually give Canadians much confidence.

Now, getting back to the parliamentary review committee, it was called the special....

Mr. Chair, with regard to the commentary over there, if the member wishes to participate in this debate, I invite him to do so after I'm done.

Thank you.

[Chris Bittle, Liberal, St. Catharines, ON]

I have a point of order, Mr. Chair.

This is just another example of the Conservatives pretending to care about security. We have witnesses here to talk about cybersecurity, which the Conservatives pretend to care about but clearly don't.

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

You can grandstand all you want somewhere else.

[Chris Bittle, Liberal, St. Catharines, ON]

“Grandstand all you want”? Really?

This is from the person who's grandstanding—

[The Chair, Liberal, Heath MacDonald]

Everyone, can we just stop for a moment, please?

Listen—

[Chris Bittle, Liberal, St. Catharines, ON]

The person who is grandstanding is working with Tamara Lich. Wow. This is unbelievable—

[The Chair, Liberal, Heath MacDonald]

Mr. Bittle, Mr. Bittle—

[Chris Bittle, Liberal, St. Catharines, ON]

This is unbelievable. You are making witnesses....

Who's the grandstander?

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

Mr. Chair....

[Chris Bittle, Liberal, St. Catharines, ON]

It's clearly you.

[The Chair, Liberal, Heath MacDonald]

Please, everyone, I'm going to say this once.

We had an incident in here before that was very close to damaging someone's ears due to the mistake of a microphone just being too close. I asked at the beginning of this meeting that we do not harm the interpreters, so let's not talk over one another. Everybody will have a chance.

Thank you.

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

Thank you, Chair.

I will continue.

As I as saying, the Emergencies Act has requirements in subsection 62(1) for a parliamentary committee. A Special Joint Committee on the Declaration of Emergency is required to review “the exercise and powers and the performance of duties and functions pursuant to [the] declaration” by the government.

Mr. Brock and I are fortunate and on that committee and honoured to be there, along with colleagues from all parties, along with four members of the Senate. It's interesting that we've been meeting since March of 2022, and on December 1 of 2022, the committee moved that an interim report be presented to the House. I think it's very important that this committee—which quite possibly will also be having a look at this particular decision by Federal Court to examine this overreach by government—to hear what the committee, which we affectionately call the “DEDC”, the declaration of emergencies committee, has to say.

The committee directed “[t]hat the joint chairs be directed to present the following interim report to each House forthwith”:

1. The Special Joint Committee on the Declaration of Emergency, acting as the Parliamentary Review Committee under section 62 of the Emergencies Act, and pursuant to its orders of reference from the House of Commons and the Senate, adopted on March 2, 2022, and March 3, 2022, respectively, has been reviewing the exercise of powers and the performance of duties and functions pursuant to the declaration of [an emergency order] that was in effect from February 14 to 23, 2022.

2. Despite a parliamentary secretary urging an interpretation of this mandate such that it “does not have a retrospective element whatsoever vis-à-vis what happened prior to the invocation of the declaration”...[the] committee, at its meeting on April 5, 2022, adopted a motion that it would study

“the options that the Government of Canada utilized during the invocation of the Emergencies Act and enumerated in the Proclamation Declaring a Public Order Emergency; [and] That in this study of each option and for the committee’s final report, the committee consider the necessity, implementation, and impact of that option....”

3. To that end, one of the areas of significant interest in the questioning of witnesses throughout the course of the committee’s work has been whether the necessary thresholds for the government to declare a public order emergency had been satisfied.

4. Given the particular relevance to the issues which will be addressed in this interim report, the committee wishes to set them out below.

5. Subsection 17(1) of the Emergencies Act provides that when the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

6. Section 16 of the Emergencies Act offers pertinent definitions:

“public order emergency” means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency;

“ threats to the security of Canada” has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act).

7. A “national emergency” is, meanwhile, defined by section 3 of the Emergencies Act:

For the purposes of this Act, a “national emergency” is an urgent and critical situation of a temporary nature that:

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada.

8. Finally, the Canadian Security Intelligence Service Act definition of “threats to the security of Canada”, sometimes dubbed “the CSIS Act threshold”, which is imported into the Emergencies Act, is as follows:

“threats to the security of Canada” means

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b) foreign influenced activities—

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

On a point of order, Mr. Chair, while I'm enjoying Mr. Motz's presentation, it occurs to me that because part of this motion is a demand for an order for cabinet confidences and privileged communication—lawyer-client privilege—I question whether we have the authority to do this.

I would ask that we get a ruling as to whether this motion is in order, because it exceeds the powers of this committee.

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

Can I speak to that?

The interim committee report I am presenting to the committee right now gets into the law, the rules and procedures of the House, and the authorities at the House for committees to have the inherent right to have access to and ask for these documents. Therefore, the motion is in order because it complies with the requests from other committees and it is also in compliance with the rules and procedures of the House.

[The Chair, Liberal, Heath MacDonald]

Thank you.

Mr. McKinnon, we'll take that into consideration and allow the member to continue.

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

Thank you, Chair.

Under the CSIS Act, “threats to the security of Canada” means:

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and

(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada, but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).

9. The significance of these thresholds was explained to your committee by the Honourable Perrin Beatty...who, as Minister of National Defence, was the sponsor of the former Bill C-77 which enacted the Emergencies Act—or the law’s so-called “author”—and who appeared before your committee on March 29, 2022.

10. Mr. Beatty spoke of the choice of the CSIS Act threshold as a deliberate one “because of the care that had gone into writing it” (Evidence, page 17). He continued,

A public order emergency must meet two stringent tests. The first is to establish the existence of a severe emergency that cannot effectively be dealt with under any other law of Canada. The second is that it must meet a definition of threats to the security of Canada that was drafted to protect Canadians' rights and that specifically provides for “lawful advocacy, protest or dissent” (Evidence, page 17).

11. The Honourable David Lametti, P.C., K.C., M.P., Minister of Justice and Attorney General of Canada, appeared before your committee on April 26, 2022. When asked whether he had received any written opinions that the Emergencies Act should be invoked, he declined to answer on the basis of solicitor-client privilege (Evidence, page 20).

12. Similarly, while claiming solicitor-client privilege when he was asked what facts or considerations were provided in giving advice in relation to the CSIS Act threshold, Mr. Lametti commented,

First of all, the document that we tabled goes through the nature of the various threats across the country, including some of the threats that you very rightly identified in the way that you framed your question. These, we felt, met the question of serious threats to persons under the CSIS Act definition—primarily that. There is also the economic damage, which could be considered part of the property question. (Evidence, page 21).

13. In the face of this claim, your committee, on May 31, 2022, exercised its authority to send for persons, papers and records and ordered the production of

all security assessments and 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; (c) the situation could not “be effectively dealt with under any other law of Canada”, as required by section 3 of the Emergencies Act....

14. François Daigle, Deputy Minister of Justice and Deputy Attorney General of Canada, replied to this order, on June 29, 2022, writing, “Upon full consideration, it is our Department’s determination that all legal opinions in our holdings that would be responsive to the Committee’s order are subject to solicitor-client privilege.” He added, “I confirm that I am unable to produce legal opinions as sought in the Committee’s order.”

15. At its next meeting, on September 22, 2022, your committee agreed to

deem the evidence, including testimony and documents—

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Heath MacDonald]

You have the floor, Ms. Michaud.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

I don't know if Mr. Motz could tell us how much longer he will be. I understand that the purpose of introducing his motion today is to delay the study of Bill C‑26 . However, we have guests here who have prepared to testify, who have prepared a brief and who have interesting information to share with us to help us do our work on the study of Bill C‑26. That would be of great benefit to all committee members. We have only a few minutes left to ask them questions. According to the schedule, we will change panels for the next hour of the meeting.

In short, I don't know if Mr. Motz can tell us how much longer he will be. Personally, I find that this shows a great lack of respect for the witnesses here today.

[The Chair, Liberal, Heath MacDonald]

Mr. Motz, could you give us an indication of how much longer you're going to be?