Mr. Speaker, this now infamous claim by the former minister, which was made at the committee table, went viral as police officer after police officer and official after official denied it before the Standing Committee on Procedure and House Affairs and before the Public Order Emergency Commission. Documentary evidence further substantiated just how wrong the former minister's claim was.
With all reports from all three bodies now formally before the House in the present session, the House is seized with irreconcilable claims for which the air must be cleared. As we know, it is a contempt to mislead the House of Commons or any of its committees. I will therefore argue that the member for Eglinton—Lawrence deliberately misled the special joint committee, giving rise to a prima facie contempt.
The committee's third report details, in the first paragraph of the justification section of chapter 7, under “Invocation of the Emergencies Act”, the former minister's evidence to the committee on April 26, 2022, which states:
Some witnesses before the Committee cited the public safety concerns as justification for Cabinet’s decision to invoke the Emergencies Act. For instance, [the] former Minister...told the Committee that the federal government received advice “that law enforcement needed the Emergencies Act to be sure that they [would] resolve, for example, ambiguities around those who were staying close to ports of entry.” He reiterated that “we invoked the Act because it was the advice of non-partisan professional law enforcement that existing authorities were ineffective at the time to restore public safety.”
For good measure, the former minister's other comments to the committee that night include the following:
The government remained engaged with [further] enforcement throughout to ensure that they had the support and the resources they needed. However, when efforts using existing authorities proved ineffective, the advice we received was to invoke the Emergencies Act.
He went on to say, “The advice we were getting was that law enforcement needed the Emergencies Act”. He was also quoted as saying, “As we took our decision in what we could do to respond, we were following the advice of various levels of law enforcement, including the RCMP and...commissioners”.
That last quote is particularly important, bearing in mind what the committee reported, beginning at the 10th paragraph of the section on co-operation among different levels of policing found in chapter 5, “Police Response to the 'Freedom Convoy'”. It states:
There is evidence to suggest that police leadership had not exhausted all available tools to bring the protests and blockades to their conclusion when the federal government decided to invoke the Emergencies Act. At the [Public Order Emergency] Commission, a 14 February 2022 email from [then commissioner of the RCMP] Brenda Lucki to the chief of staff to [the] former Minister...states that:
This said, I am of the view that we have not yet exhausted all available tools that are already available through the existing legislation. There are [circumstances] where charges could be laid under existing authorities for various Criminal Code offences occurring right now in the context of the protest. The Ontario Provincial Emergencies Act just enacted will also help in providing additional deterrent tools to our existing toolbox.
These existing tools are considered in our existing plans and will be used in due course as necessary.
I want to pause for a moment to note three things. First, on September 22, 2022, the committee adopted a motion with a view to achieving efficiencies in its own proceedings. It states:
...deem the evidence, including testimony and documents, received by, and published on the websites of, standing committees of the House of Commons and the Public Order Emergency Commission, in relation to the February 2022 public order emergency and matters consequential to it, to have been received by this Committee and may [have been] used in its reports....
Secondly, as we know from the Rouleau commission records, the former minister's chief of staff forwarded the RCMP commissioner's message directly to the then minister. It is Rouleau commission document ssm.nsc.can.00002280.
Thirdly, former commissioner Lucki's statement about not exhausting all available tools was emboldened with red lettering to attract the attention of the minister's eye.
It is clear that the member for Eglinton—Lawrence was put on clear notice that invoking the Emergencies Act was not the RCMP's advice, in sharp contrast to what he had claimed at the committee table. Going back to the third report, picking up four paragraphs later, we read, “[then Ottawa police chief] Peter Sloly told the Committee that the [Ottawa Police Service] had a plan ready to clear downtown Ottawa, and the [Ottawa Police Service] maintained control of the plan during his tenure as chief of police.”
His tenure ended the day after the Emergencies Act was invoked. Mr. Sloly testified before the committee on October 6, 2022, and is quoted on page three of the evidence saying, “There were no explicit conversations that I had with other levels of government regarding declarations of the Emergencies Act at all three levels.” He then immediately clarified this, adding, “We did have conversations with the City of Ottawa around their emergency, but not the other two levels of government.”
Other witnesses before the special joint committee also testified that they had not requested the invocation of the Emergencies Act. The then RCMP commissioner Brenda Lucki is quoted on page 10 of the evidence for May 10, 2022, saying, “No, there was never a question of requesting the Emergencies Act.” When pressed to confirm that statement about whether she ever asked for the invocation of the act, she firmly answered, “No.”
The then emergency preparedness minister, now the Minister of National Defence, testified on June 14, 2022, at pages 22 and 23 of the evidence, that he had not heard any advice or request from the police asking for the invocation of the Emergencies Act, adding, “Quite frankly, I would have been quite surprised if the police had actually made a policy recommendation or asked for any legislative authority.”
On October 27, 2022, former Ottawa mayor Jim Watson confirmed, at page 14 of the evidence, that he had not sought any emergency declarations. On November 3, 2022, Ontario police commissioner, Tom Carrique, confirmed, at page 17 of the evidence, “I can tell you that I am telling you the absolute truth, sir. At no point did I provide or request that the Emergencies Act be invoked.” He then added, “I did not provide any advice of that nature, nor am I aware of anyone from my legal team providing such advice.”
Those statements alone show there was irreconcilable evidence before the committee, which has now been reported to the House, but the concern just does not stop there. In parallel to the special joint committee's work, our procedure and House affairs committee was conducting its own study of security arrangements on or near Parliament Hill, hearing from a number of pertinent policing and security witnesses who appeared in the aftermath of the former minister's famous claim.
The evidence that it heard was reported to the House in that committee's 19th report, tabled on December 14, 2022. Firstly, on page 13, we read the former minister's own take:
During the appearance by [the then minister of public services and procurement and the then minister of public safety], some members of the Committee asked questions about the invocation of the Emergencies Act. In particular, it was asked which police agency asked for the Emergencies Act to be invoked?
In response, [the member for Eglinton—Lawrence] stated that
there was a very strong consensus among law enforcement that the Emergencies Act was necessary as stipulated in the letter from the Canadian Association of Chiefs of Police....
Turning to page 23 of the 19th report, we see, “When asked about the invocation of the Emergencies Act by the federal government, [the then Ottawa interim police chief, Steve] Bell stated the [Ottawa Police Service] had had conversations with its partners and political ministries, but did not directly request that the Act be invoked.” Former chief Bell later testified before the special joint committee on November 3, 2022, at page 2 of the evidence, that, “No, we never made a direct request for the invocation of the act.”
Later in that same meeting, on page 9, he confirmed, “That's correct. There was no direct request made from the Ottawa Police Service.”
Now, let us go back to the procedure and house affairs committee's 19th report on page 26. It says, “Asked whether the [Police Service of Gatineau] was able to manage the disruptions in Gatineau caused by the Freedom Convoy, [Service Director] Mr. [Luc] Beaudoin indicated that it was able to do so, in particular thanks to the collaboration of its partners and the coordination centre.”
Moving to page 29, we learn this:
When asked if the [Parliamentary Protective Service] had requested the invocation of the Emergencies Act in February 2022, [then acting service director, Superintendent] Mr. [Larry] Brookson answered no. He noted that there was no benefit whatsoever in the invocation of the Emergencies Act for PPS, because it is not a policing organization, so it received no additional powers through the Act.
I would pause here to add that former Superintendent Brookson confirmed this evidence for the special joint committee during his appearance there on September 29, 2022, on page 10, of the evidence.
Mr. Sloly, the former Ottawa police chief, had also appeared before the procedure and House affairs committee, which reported on page 37, “that he did not ask the federal government to invoke the Emergencies Act. He was not aware of anyone making that request in the [Ottawa Police Service].”
The then Ottawa City manager, Steve Kanellakos, was also a witness, and in the 19th report, on page 48, it states, “Mr. Kanellakos was asked by the Committee whether the [Ottawa Police Service] had requested the invocation of the Emergencies Act. In response, he stated that he was not aware of any such request.”
Mr. Kanellakos, in his opening statement to the special joint committee on October 27, 2022, on page three of the evidence, also said, “To my knowledge, the city never requested the invocation of the act.”
Next, let us turn to the report of the Public Order Emergency Commission, which was tabled in the House on February 17, 2023, sessional paper 8530-441-17.
First, on page 115 of volume 1, Commissioner Rouleau wrote:
A question that arose during the Commission’s hearings was whether Cabinet was advised of Commissioner Lucki’s view that not all existing tools had yet been exhausted in Ottawa. She had expressed this view to [the former minister's] chief of staff less than an hour before the Cabinet meeting began, but this was not passed on to Cabinet.
Later, the commissioner expanded on this on page 92 of volume 3. He said:
A question that arose during the Commission’s hearings was whether Cabinet was advised of Commissioner Lucki’s view that not all existing tools had yet been exhausted in Ottawa. Less than an hour before the Cabinet meeting began, Commissioner Lucki responded to an email request from [the former] Minister['s]...Chief of Staff, Mike Jones, for a list of emergency measures that might assist law enforcement in bringing the protests under control. Commissioner Lucki suggested a number of tools but added that in her view, all of the tools available through existing legislation had not yet been exhausted. She noted that there were instances where charges could be laid under the Criminal Code, and that [Ottawa]’s recent declaration of emergency would also help in providing additional tools.
Mr. Jones forwarded Commissioner Lucki’s email to [the former minister] and Deputy Minister [Robert] Stewart half an hour before the Cabinet meeting began. The comment about the sufficiency of existing tools was not incorporated into the speaking notes that Commissioner Lucki sent to [the former] Minister...and the [then national security intelligence adviser to the Prime Minister, Jody Thomas] a few minutes before the start of the meeting.
In addition to these three reports, the former minister testified to the special joint committee, which is also contradicted by the government's response to Order Paper Question No. 613, signed by the then minister's parliamentary secretary. Through this written question, the government was asked, “With regard to the government’s invocation of the Emergencies Act earlier this year: did any police force make a request for the Act to be invoked, and, if so, what are the specific details of any such requests, including which police forces submitted a request, and on what date each such request was received by the government?”
The then parliamentary secretary's response danced around the heart of the question, but she nevertheless answered, “the RCMP did not request for the act to be invoked”. She reiterated, “With regard to the RCMP, the Royal Canadian Mounted Police did not make a request for the act to be invoked.”
All in all, the former minister's claim to the special joint committee, found in its report that is now before the House, has been flatly contradicted by all other evidence on the question before the House.
House of Commons Procedure and Practice, third edition, at page 81, provides a list of established grounds for contempt, including “deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition)”. This point is reiterated at page 112.
For its part, the United Kingdom House of Commons Committee of Privileges has also recently considered the matter of a minister misleading Parliament. That committee's fifth report, tabled in June 2023, notes at paragraph 6 that “misleading intentionally or recklessly, refusing to answer legitimate questions, or failing to correct misleading statements, impedes or frustrates the functioning of the House and is a contempt.”
The importance of accurate information being provided to Parliament has been underscored in a number of rulings in this House, including by your predecessor, Mr. Speaker, on March 3, 2014, at page 3430 of the Debates, which states:
This incident highlights the primordial importance of accuracy and truthfulness in our deliberations. All members bear a responsibility, individually and collectively, to select the words they use very carefully and to be ever mindful of the serious consequences that can result when this responsibility is forgotten.
The United Kingdom's privileges committee, meanwhile, explained, at paragraph 8 of its fourth report, tabled in March 2023, the following:
The expectation is that when the House hears from Ministers, what it hears is the truth as far as the Minister knows it. The House considers legislation and scrutinises government activity on the basis that what it is told is accurate. Parliament expects and requires proactive candour and transparency. This is what is necessary for the House to do its job properly. If a Minister makes an inadvertent error they are expected to correct it at the earliest opportunity. Mistakes inevitably happen and corrections are made routinely. There are, every year, roughly 100 corrections per year by Ministers who have inadvertently misled the House. The more important the issue, the more seriously the House will take any question of misleading.
There is a well-established test for determining whether deliberately misleading information has been provided, which, for example, the Speaker explained in his February 15 ruling, at page 21158 of the Debates:
It must be proven that the statement was misleading; it must be established that, when making a statement, the member knew it to be incorrect; and finally, it must be demonstrated that the member intended to mislead the House.
In the circumstances, I would respectfully submit that all three branches of this test can be made out.
First, the overwhelming body of evidence, in fact, basically every source of evidence other than the former minister himself, which I have already quoted, contradicts the former minister. There can be no reasonable conclusion other than the fact that his statement to the committee was misleading.
Second, the email from the then RCMP commissioner to the former minister's chief of staff, who in turn forwarded it to his boss, makes it quite clear that the former minister was on notice of the actual opinion of the country's top cop. In the face of it, how could he plausibly claim that law enforcement actually made the request?
Third, the context of the former minister's comment, in trying to manage concerns regarding an extraordinary assertion of legal powers by the federal cabinet in response to a protest against its policies, is one that goes to explain the likely intention behind it: to syndicate the responsibilities for such a controversial decision onto the shoulders of non-political institutions like the police and away from the political actors who actually took the decision.
In any event, intention is not something that, I would respectfully submit, requires, at this stage, ironclad proof, like a confession. Indeed, the procedure and House affairs committee, at paragraph 15 of its 50th report, presented in March 2002, explicitly acknowledges that intention may well be a matter for committee investigation:
As [then clerk of the House] Mr. Corbett explained to the Committee, it is not uncommon for inaccurate statements to be made in the course of debate or Question Period in the House. The issue is whether the statements were made deliberately, with the intent of misleading the House or its Members. In the case where a Member later admits to having knowingly provided false information—as in the Profumo case—the issue of intent is clear. In the absence of such an admission, however, it rests with the Committee to examine all of the circumstances and determine whether the evidence demonstrates an intention to mislead.
The procedure and House affairs committee continued in the same vein at paragraph 39 of the same report, noting that, at times, inferences must be drawn to establish intent:
Intent is always a difficult element to establish, in the absence of an admission or confession. It is necessary to carefully review the context surrounding the incident involved, and to attempt to draw inferences based on the nature of the circumstances. Any findings must, however, be grounded on facts and have an evidentiary basis.
At Westminster, meanwhile, the privileges committee, in its fourth report, wrote at paragraph 6:
If a statement was misleading, we will consider whether that was inadvertent, reckless or intentional. If we conclude it was in any way reckless or intentional we will consider what sanction to recommend to the House. It will be for the House to decide whether to accept or reject our conclusions and recommendations.
It might also be worth noting here the related footnote, footnote 4, of that report:
We emphasise that the Committee is not a court of law, it is a select committee of Parliament, and its processes are parliamentary rather than forensic. The Committee will adopt plain-English definitions of key concepts as used in a parliamentary context.
Parliamentary Privilege in Canada, second edition, at page 234, explains that “before the House will be permitted by the Speaker to embark on a debate in such circumstances...[it must be demonstrated] that a Member of the House of Commons was intentionally misled or an admission of facts that leads naturally to the conclusion that a Member was intentionally misled”. The long list of contradictory evidence would, I suggest, lead naturally to the very strong inference, if not the conclusion, that the special joint committee was intentionally misled.
Next, I wish to address another matter concerning this question of privilege, namely the requirement to rise in a timely manner. On first blush, raising a concern about something that was said over 31 months ago would not be considered timely. However, since it happened in a committee, the clock only started from the moment the third report was tabled in the House, which was this morning. It would have been premature to have raised this concern any sooner.
As Mr. Speaker Regan said on September 27, 2016, at page 5175 of the Debates:
the Speaker cannot pass judgment on matters that are not properly before the House. The authority of the Speaker is limited to studying evidence before the House, such as statements made in the House or matters detailed in reports from committees, and not evidence gleaned from other sources.
Mr. Speaker, your immediate predecessor held on May 11, 2021, at page 7023 of the Debates, “There is no precedent where the Chair has used testimony from a committee without there being a report on the subject.”
This rationale was more fully elaborated on by Speaker Milliken, on February 10, 2011, at page 8030, in a comment quite relevant to the present case, given that the former minister's wild claim became a matter of considerable discussion on the floor of the House:
...the Chair was limited in its ability to act on the full range of that review since much of the proceedings referred to in member's submissions were never officially placed in the hands of the House. The parliamentary secretary to the government House leader was not mistaken in his assertion that any and all statements made in committee, even when those have been repeated verbatim in the House, remain the business of the committee until such time as it elects to report them officially to the House.
...It may sound overly technical but the reality is that when adjudicating cases of this kind, the Chair is obliged to reference material fully and properly before the House.
However, now the information is fully and squarely before the House, in the form of the third report, the procedure and House affairs committee's 19th report and the Rouleau commission's report, as well as the Order Paper question response I quoted. We are now faced with the concern expressed by the Speaker on March 3, 2014, at page 3430 of the Debates:
At the same time, the fact remains that the House continues to be seized of completely contradictory statements. This is a difficult position in which to leave members, who must be able to depend on the integrity of the information with which they are provided to perform their parliamentary duties.
In that case, the Chair found a prima facie case of privilege, just as Speaker Milliken did on February 1, 2002, at page 8581 of the Debates, when he said:
The authorities are consistent about the need for clarity in our proceedings and about the need to ensure the integrity of the information provided by the government to the House. Furthermore, in this case, as hon. members have pointed out, integrity of information is of paramount importance since it directly concerns the rules of engagement for Canadian troops involved in the conflict in Afghanistan, a principle that goes to the very heart of Canada's participation in the war against terrorism.
...in deciding on alleged questions of privilege, it is relatively infrequent for the Chair to find prima facie privilege; it is much more likely that the Speaker will characterize the situation as “a dispute as to facts”. But in the case before us, there appears to be in my opinion no dispute as to the facts. I believe that both the minister and other hon. members recognize that two versions of events have been presented to the House.
...On the basis of the arguments presented by hon. members and in view of the gravity of the matter, I have concluded that the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee, if only to clear the air.
The same motivation, to clear the air, also inspired another prima facie finding by the Chair, on March 9, 2011, as well as the 2014 case I cited.
While the present circumstances do not relate to Canadian participation in conflict abroad, they do relate to the justification for the invocation of the Emergencies Act, a decision that allowed cabinet to legislate without regard to the authority of Parliament or to the usual constitutional divisions of power. A decision of this magnitude must be supported with clarity and integrity of information, just as Speaker Milliken had insisted concerning the deployment of JTF 2 soldiers in Afghanistan.
Mr. Speaker, I would submit that the necessary thresholds have been made out here, allowing for you to make a prima facie finding. To allow for the air to be fully and properly cleared, I intend to propose referring the matter to the procedure and House affairs committee so that we might get a definitive report on the issue.
In conclusion, Parliament deserves to receive clear and definitive answers to questions. It must be entitled to the truth. On a matter about sidelining Parliament's own legislative and constitutional authority, the stakes are even higher. That is why I urge you to find a prima facie case of privilege in relation to the member for Eglinton—Lawrence in his testimony to the Special Joint Committee on the Declaration of Emergency, for which I am prepared to move an appropriate motion.
