Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 4 - Evidence
OTTAWA, Monday, April 30, 2007
The Special Senate Committee on the Anti-terrorism Act, to which was referred Bill C-12, to provide for emergency management and to amend and repeal certain acts, met this day at 1 p.m. to give consideration to the bill.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: We have before us the emergency management act, which is Bill C-12, and the minister responsible, Stockwell Day, who is Minister of Public Safety.
Hon. Stockwell Day, P.C., M.P., Minister of Public Safety: Thank you, Mr. Chairman and senators for your interest in this legislation. I am here with Suki Wong, Director, Critical Infrastructure Policy for Emergency Management. She will be able to handle all the technical and tough questions today. Feel free, if you have questions of a technical nature, either on the drafting or various items that we will look at today, to bring forward any of those issues which you feel need to be addressed.
As you know, for Canada's new government, protecting Canadian families and communities is a top priority. The safety and security of our citizens must be the top priority of any level of government. That is why this bill is before you and why you are going through it the way you are.
[Translation]
The existing Emergency Preparedness Act establishes civil emergency planning and preparedness as key government responsibilities. It outlines roles for the Minister of Public Safety and all other ministers. It is a very significant piece of legislation for all ministers. It provides for federal-provincial cooperation and enables post-disaster financial assistance to the provinces. These elements will not change.
The goal of the new Emergency Management Act is to strengthen the readiness posture of the Government of Canada, and help it prevent, prepare for and respond to all hazards in Canada, as well as to mitigate their impact. It recognizes that managing emergencies in the face of constantly evolving threats requires a collective and concerted approach between all concerned officials, including those from the private sector and non-governmental organizations. The provinces and territories support the new law because it helps to increase collaboration between the Government of Canada and the other jurisdictions.
[English]
In Budget 2006, we allocated $38 million over two years for the purpose of enhancing the capacity of Public Safety Canada to deal with catastrophes and emergencies. The funding will also allow my department to maintain around- the-clock readiness levels in the national operations centre and enhance its presence in provincial and territorial centres. This funding will also allow them to liaise with key international partners in emergency situations and increase the coverage of our monitoring. It is in that context that we have brought forward Bill C-12. I want to explain the importance of the proposed emergency management act, Bill C-12, to the safety and security of our citizens.
I will focus on three themes overall. One is the need for the government of Canada's emergency management legislation to be in line with today's realities. Two is the need for clear roles and responsibilities for federal ministers in the event of an emergency. Three is the need to collaborate with the provinces, territories and private sector on emergency management.
Afterwards I will answer your questions.
The EMA helps the federal government respond to today's emergency management realities. Mr. Chairman, Canada's current approach to emergency management was set out in the Emergency Preparedness Act. The context has evolved dramatically since that legislation came into effect in 1988. It is been nearly two decades since that act passed and there have been numerous calls to bring this legislation in line with the current risk environment.
Indeed, the Standing Senate Committee on National Security and Defence has made numerous important recommendations, and those have been noted. The committee has touched on such issues as the testing of emergency management plans, improved information sharing, national exercises and greater collaboration with provinces and territories.
The proposed emergency management act responds to these concerns. It retains the most relevant provisions of the existing legislation and brings the rest into the 21st century.
As an example, existing legislation establishes civil emergency planning and preparedness as key government responsibilities. It outlines the role for Minister of Public Safety and other ministers. It provides for federal-provincial cooperation and enables post-disaster financial assistance to the provinces. These provisions will not change.
The proposed legislation will strengthen the readiness posture of the Government of Canada. It will help the government prevent, prepare for and respond to all hazards in Canada and mitigate their impact. It brings greater accountability to emergency management activities for all federal ministers.
Bill C-12 sets out clear roles and responsibilities for federal ministers. When an emergency strikes, lives are often at stake. Effective response to emergencies means knowing who is in charge, knowing which area is responding, and knowing which levels are responding at which time. That is why the proposed bill sets out clear roles and responsibilities for all federal ministers.
Under this bill, the Minister of Public Safety takes leadership for emergency management at the federal level. For example, through the government operations centre, the minister monitors potential, imminent and actual emergencies and advises the government accordingly.
The Department of Public Safety and the Emergency Preparedness Act confers a leadership roll on the Minister of Public Safety. Bill C-12 will define that role further to allow the minister to exercise leadership fully in the coordination and facilitation of emergency management in the Government of Canada.
Other federal ministers must also play important roles in emergency management. They must identify risks within their own portfolios, then develop, maintain, test, exercise and implement emergency management plans according to the policies and programs established by the Minister of Public Safety.
It is important to note in this act that Canada's proximity to the U.S. presents a unique relationship with a foreign state, particularly in the context of emergency management activities. While the Minister of Public Safety is primarily responsible for emergencies in Canada, we noted certain things following Hurricane Katrina. It was evident that the minister had a clear emergency response role related to the United States.
A major emergency in the United States, especially if it is an area in proximity to our borders, may require an appropriate level of response as a major emergency in Canada, depending where it is and what the fallout of that emergency might be. Our shared border, shared infrastructure at times and the trading partnership link our countries' economies and our well-being. Canada's capacity to respond swiftly and effectively in times of major disasters is expected by our citizens, whether that happens here or in the United States.
In consultation with the minister of foreign affairs, the Minister of Public Safety may develop joint emergency management plans with the relevant U.S. authorities and, in accordance with those plans, coordinate Canada's response to emergencies in the U.S. and provide assistance in response to those emergencies.
The act strengthens partnerships with the provinces, territories and the private sector.
[Translation]
Consultations were held with other federal departments and representatives of provincial and territorial governments. The town hall meetings that were set up to discuss other public safety initiatives provided us with valuable feedback, including feedback from the private sector and non-governmental organizations. Other individuals and stakeholders joined in the consultations by posting on the Web comments on the modernization of the Emergency Preparedness Act as well as consultation documents.
[English]
The relationship with provinces and territories is clearly critical to appropriate response in a time of emergency. It is not enough for federal ministers to work together. The government recognizes that more than 90 per cent of emergencies in Canada are handled locally or regionally and may not require direct federal involvement. Therefore, all jurisdictions must work together in a common approach to emergency management, which may include the adoption of standards and best practices. That is why the bill underlines the need for collaboration with the provinces and territories on emergency management, and through the provinces and territories with the local authorities.
In keeping with the existing legislation, the scope of Bill C-12 would not extend beyond federal jurisdiction. It would not introduce any new regulations to encroach upon the provinces and the territories. I want to emphasize that local authorities such as municipalities and their first responders are an integral part of emergency management planning. Bill C-12 does not infringe on emergency management arrangements established by provinces and territories within their local authorities.
Under the proposed emergency management act, programs such as the Disaster Financial Assistance Arrangements and the Joint Emergency Preparedness Program, JEPP, will continue. Through the JEPP program, the Government of Canada works with the provinces and territories to help local authorities enhance their emergency response capacity. We have also begun to co-locate joint emergency operation centres, where it is appropriate, to ensure that all three levels of government pursue an integrated approach. The proposed legislation will facilitate this type of cooperation with local governments.
The last point I want to address is the rationale for the proposed changes to the Access to Information Act that are required by Bill C-12. The Government of Canada needs to exchange valuable and reliable information with key partners, such as the private sector. That component of emergency management is integral, especially related to critical infrastructure protection. Among other goals, information sharing allows us to assess threats and vulnerabilities, and improves the warning and reporting capabilities. The information that we will glean will enhance our ability to plan for and respond to emergencies.
The private sector partners, rightly, have shared concerns that confidential information they may have, perhaps in terms of layout or blueprints about their physical infrastructure, that is provided to the Government of Canada could become available through Access to Information requests in a way that may not be appropriate. Making that information available could harm their own competitive position and reputation and maybe their own vulnerabilities. It could even put the security of their physical and cyber infrastructure at risk. For that reason, as you have observed, Bill C-12 includes a consequential amendment to the Access to Information Act. The amendment is designed to protect sensitive information, such as private sector information provided in confidence to the Government of Canada.
I want to note here that the information will be used for emergency plans only. Personal information will not be required.
To sum up, the proposed legislation will bring the Government of Canada's emergency management planning into the 21st century and allow us to have the federal house organized and in order, in tune with the evolving threats. Bill C- 12 would establish clear roles and responsibilities for federal ministers in the event of an emergency, and it would enhance collaboration with the provinces, territories and the private sector on emergency management. I believe the legislation is appropriate for the time. I look forward to answering your questions. I want to thank you for your attentiveness.
The Chairman: Thank you, minister.
Senator Jaffer: Welcome, minister. I have two questions for you, one on information sharing and one on community consultations.
Under the bill, one of the responsibilities given to the Minister of Public Safety in clause 4(1)(r) is ``facilitating the authorized sharing of information in order to enhance emergency management.'' I recall that under the Public Safety Act, 2002 there was some concern over information sharing and strict limitations on what information could be shared between agencies, especially personal information. I know you said today that personal information will not be shared. Some of this personal information has been put into the law or into the regulations. Will these limitations be respected as you try to facilitate information sharing? Can you elaborate on what you mean when you say personal information will not be shared? How will it not be shared?
Mr. Day: I appreciate your good question on this matter because concerns have been raised. With respect to our doing an identification, for instance, of analysis of vulnerabilities related to critical infrastructure, you will know that not too many months ago, in what has been now deemed to be a transmission from Al Qaeda, they name a number of countries in which their oil and gas facilities, for instance, could be potential targets. Obviously, that information raises big concerns in Canada.
In consulting with the private sector in a case like that, we want to know what measures they are putting in place to enhance their own security to be able to manage the possibility of something taking place. In seeking that information, we could require details about their infrastructure, layout, access points, how they transmit, their transmission lines, transportation and so forth. In providing that information, they are, in some ways, giving out information on how they have cost-effective transportation, for instance, or what they might have developed in terms of transmission lines. That information becoming public to their competitors has caused some angst, so they need to be assured — and we have given that assurance — that information like that should not be available to the public, nor should it be available for the purpose of those who might be planning something. That is the type of information we refer to. We will not ask for personal information about people who work there, which would cause concerns. We are not interested in the financial information of the company. There might be tax issues that another department may be involved in, but that would not be us.
It is that type of information we seek, and that is why I am trying to be clear that private information will be respected. We will not access personal information unless, for some reason, personal information was directly relevant to the security of an installation.
There is the physical infrastructure, which is easily identified, and then there is cyber infrastructure. We know there are certain vulnerabilities in relation to cyberspace and what is going on there. The same rules will apply, and we want this provision in the act to give the assurance, first, that people and personal information will not be asked for except in the most extreme circumstances, and second, that the information will be subject to the rules of the Access to Information Act.
Senator Jaffer: I have a follow-up question. The bill, under clause 8(2), gives the Minister of Public Safety the authority to disclose information if it is in the public interest. This authority would include information provided by third parties. In the past, this committee has been concerned with authority being given to a minister to disclose or protect certain information for broadly defined reasons. Are you able to elaborate what ``public interest'' means in this case?
Mr. Day: I do not want to keep going back to oil and gas necessarily, but let us say the physical infrastructure of an oil refinery. It may be in the public interest for people living in the region to know and have some sense of assurance that certain plans are in place. In the public interest, it may be advisable, in a general way, to inform them that plans are in place, and maybe even to touch on what preventive mechanisms are there and what follow-up would take place if an incident were to happen. It would be in the public interest to have a sense of assurance, and if the sense of assurance could not be applied, then there may be more things that particular corporation or company may need to do. That is what we mean by public interest.
The disclosure of personal information would be limited if we ask for it in the first place, and that public interest would be in the most limited of ways. This provision refers to a more general sense of public interest and assurance.
It is not a negative thing to send a message out that certain facilities have good surveillance. When it comes to surveillance, the public would want to be sure if a facility, for instance, had enhanced video capabilities on the immediate perimeter of that premises. Perimeter surveillance would be up to the private sector, but people who live in the area might want the assurance that they were not under camera surveillance. These types of things, for the public interest, would be made available.
Senator Jaffer: On community consultations, I am aware that you have consulted broadly in preparation of the infrastructure for all manner of emergencies. However, a number of community groups say that some vulnerable minority groups have not been consulted. For example, during the severe acute respiratory syndrome, SARS, crisis, Chinese Canadians were directly or indirectly affected and they have experience they could share with your department. You have consulted widely but I ask that you consult the communities that are affected. For example, do we have pamphlets in different languages? How are we making sure that all communities are aware of these emergency programs?
Mr. Day: Those points are key. I take your advice on that. I will ask officials how broadly that was done. This weekend, we had one of the meetings of our Cross-Cultural Roundtable on Security. I will also check with them, as they had a broad consultative process. I do not know if we have asked them to explore this particular area. It would be a community interest and possibly an ethnic community related to these types of elements under the proposed emergency management act. I will pass that observation on to them also. They may want to include that in their consultations and deliberations with communities. I appreciate you raising that.
[Translation]
Senator Nolin: Mr. Minister, I want to thank you for having made yourself available today. First off, I would like you to confirm whether subclause 6(1) deals with two types of ministers. I want to get this straight. Are you the minister responsible for the actions that must be undertaken pursuant to subclause 6(1)?
[English]
Senator Nolin: What are the responsibilities of each minister and what are your responsibilities?
[Translation]
Mr. Day: I coordinate the activities related to the emergency management plans of the other departments. Of course, all departments now have their own emergency plans. I am not being critical when I say that improvements have to be made in all departments.
In the clause you refer to, I am the minister who makes requests to other departments with regard to the planning of emergency measures.
[English]
Senator Nolin: That is exactly the concern that I have. If you read section 4(1)(b), you provide advice to your colleagues. That is my first problem.
My second problem is your answer to my concern on section 6(1). I am sure in Quebec there were those programs and emergency planning before 1998. I am quite convinced of that. The first thing we found out was that nobody had organized themselves to put those plans in motion, whenever an emergency occurred. For a full month, in the Province of Quebec, we were in the dark.
I am concerned, minister that you do not have enough power. I understand that it is difficult to let all ministers and whoever is legally or statutorily responsible, to make sure that he or she is in charge of his or her responsibility. At end of the day, Canadians want action. The day something happens, they do not care. Someone will have to take charge. Prevention is much more important than having a plan that will automatically be in place the minute after we have a problem. Do you see my concern?
[Translation]
Mr. Day: Yes, I see. As you know, provinces are always sensitive when it comes to the power of a minister. However, there was a great deal of collaboration and discussion with the provinces and territories as the bill was being prepared. I think it is safe to say that my counterparts understood that it is absolutely necessary to have integrated plans. In the event of an emergency, local authorities are responsible for the initial response. In order to receive training and federal funds, provinces have to collaborate with me. That way we can work together effectively without having the federal government using its big stick in an area of jurisdiction that might not be its own. I have seen improvements in terms of cooperation and I trust that they are ready to face all possible situations. I have confidence in our municipal and provincial governments.
Senator Nolin: I understand and I also have respect for provincial and municipal jurisdictions. The end of my last intervention made it perhaps difficult for you to understand my question.
I am concerned not by provincial ministers, but by federal ministers, those that have responsibilities under subclause 6(1), where it states, and I quote:
. . . of each minister accountable to Parliament for a government institution [. . .]
We are talking about federal jurisdiction. You have the power to advise them, but you also have the power to establish policies and programs to ensure that they carry out their responsibilities. I would submit to you, Mr. Minister, that that is not enough. You yourself have expressed doubts about the quality of the emergency plans that have already been prepared. Who will be speaking to your colleagues?
Will you have the power to lead your colleagues and ensure that each federal institution has an emergency plan in place to prevent chaos?
Mr. Day: Yes, I can assure you that the powers are there. We continue to hope that this will be a collaborative effort. If, after having looked at ministers' departmental plans, we find that key elements are missing, subclause 6(1) of the bill provides for the minister, that is, myself:
. . . to do the following in accordance with the policies, programs and other measures established by the minister:
And then you have a list of powers:
- prepare emergency management plans in respect of those risks;
- maintain, test and implement those plans; and
- conduct exercises and training in relation to those plans.
To me, that is strongly-worded language, for example, when it states ``conduct training.''
[English]
This provision is to ensure that these measures are in place and to give instruction that not only must a plan be submitted but also it must be tested and maintained.
It is my view that we have crafted it approximately right in terms of the power of the minister to say whether the plan is deficient and something is missing, or whether it is not coordinated enough. The power exists to go back and require these measures of the federal ministry in question.
Senator Nolin: I will continue with the French version of the bill.
[Translation]
Senator Nolin: It is clear in French, and that is why I asked you to which minister subclause 6(1) referred. It states:
The emergency management responsibilities of each minister accountable to Parliament for a government institution . . . and to do . . .
Who is being referred to? Mr. Minister, I submit to you that this does not refer to you, but to each minister.
Now you understand my concern and dilemma. You will have the power to establish principles, programs and other measures. But it will be up to each minister to:
- prepare emergency management plans. . .;
- maintain, test and implement those plans; and
- conduct exercises and training in relation to those plans.
That is where I have a problem. There are two authorities: one that establishes the principles and programs, and the other that applies them in his or her department. I am sorry, Mr. Minister, but that cannot work.
Mr. Day: If I might clarify that, you are correct, Senator Nolin, there may be a slight difference between the English and French versions. As you see here, in French, it states ``il incombe à chaque ministre.'' In the last phrase of the English version, you have ``the Minister'' with a capital ``M'', which refers to the Minister of Public Safety.
[English]
It ends by saying that yes, these ministers are responsible to Parliament to identify the risks and to do the following in accordance with the policies, programs and other measures established by the minister.
[Translation]
I would like to assure you that I am responsible for establishing the principles and measures.
Senator Nolin: I agree, I have no problem with that, I simply want to make sure you have that power.
[English]
Senator Fraser: I want to raise that point.
Senator Joyal: We will continue with departmental officials.
The Chairman: Yes: On the point that you raised, I noticed in the transcript of the sixth meeting, I believe it was, of the House of Commons Standing Committee on Public Safety and National Security that Mark Holland said he wanted an amendment to add the word ``municipality.'' That set Serge Menard off who said:
We're against having the municipalities at the federal table. If the federal government wants to organize anything, it should be with the provinces and territories. . . . I don't think any municipalities in Quebec will take the fact that they're not there as a slap in the face. They know very well they should work within the province.
I think this is so basic that if there were to be an amendment like this, we would not support the legislation.
That amendment must have failed. Perhaps Ms. Wong knows. I assume that happened because the phrase ``local authority'' would cover them. Presumably the Federation of Canadian Municipalities, FCM, would fall into the category of ``other entities.'' Am I interpreting that correctly?
Suki Wong, Director, Critical Infrastructure Policy, Public Safety Canada: Mr. Chairman, you are absolutely right. In the legislation, ``local authorities'' cover municipalities and other regional authorities that the provinces deem as part of the municipality. The FCM would be included under ``other entities.''
Senator Joyal: As I understand it, on the point raised by Senator Nolin, it seems that each department organizes it own capacity to respond and that the Minister of Public Safety oversees them. In the case of an emergency, departments remain responsible for the management of their respective programs.
My understanding of the bill is such that the Minister of Public Safety assumes control as soon as a national emergency occurs. This is an element of concern, given the level of rapidity with which you must respond to a national emergency. Otherwise, you maintain the silo approach to the capacity to respond. Knowing the tradition within the public service for departments to protect their respective autonomy raises a concern that the bill does not contain the capacity for the minister to call the shots. When an emergency occurs, there is no time to wade through the usual many levels of good public administration. I believe that is part of Senator Nolin's focus in his previous questions. There is the benefit of previous experience in knowing that some departments are well prepared and others are less prepared and yet there is no authority for one person and one department to take control in the event of a national emergency.
The Chairman: This question falls within the supplementary category. Several others wish to ask questions.
Mr. Day: This is a fair pursuit of the question. Plans are not developed in isolation in that they must be prepared under the overall federal government emergency response plan and must coordinate with the individual departments. The clear reference is found under section 4, which speaks to the responsibilities of the Government of Canada and of the Government Operations Centre. When an emergency takes place, the principle first is local and then expands as required.
If, in a particular department, a fire was to break out in a wastepaper basket, at that point the Government Operations Centre probably would not be notified. However, if it has not been handled at the most local level right there in that office, it immediately begins to expand. As it hits that level, the Government Operations Centre, which has communications points and people responsible for communications — not only in each department, but across the country — immediately assumes certain responsibilities regarding coordination. This responsibility is one of the reasons the minister and the Department of Public Safety have the power to require tests, to run through tabletop exercises for different events.
The legislation is clear about the Government of Canada and the minister having the overall coordinating capacity so that we do not have that silo effect. That responsibility is something that has been impressed on officials in the development of the legislation. When it comes to emergencies, there is no turf protection in the traditional sense; there can only be turf protection in terms of, we are protecting the lives and the property of people. That priority is impressed upon officials as they work through this exercise.
Their plans are all submitted under the umbrella of Public Safety Canada to ensure that, first, the plans are coordinated. Second, the lines of coordination and communication must be clear and precise. That role is handled through the Government Operation Centre, to which all departments are subject, should there be an emergency.
Senator Day: I thought I understood the legislation, but I am not sure that I do, now that I have heard the questioning.
Is the Government Operations Centre within your department?
Mr. Day: Yes.
Senator Day: Is Craig Oldham the director?
Mr. Day: Yes.
Senator Day: I think I understand the role then. It is more of a coordinating role. You do not take the lead when an emergency happens. For example, for a SARS problem, Health Canada would take the lead. However, if other problems arise by virtue of this emergency, while Health Canada focuses on dealing with that, the Government Operations Centre brings in activity and advises other departments as to whether they may want to react to this situation, too. Is that correct?
Mr. Day: That is correct. We hope a SARS-type incident would never happen again, but a lot of planning and work has gone on around that particular issue. It is clearly pointed out — and even graphed in a cascading way — which departments are involved and when, if something happens. For instance, if quarantine becomes a factor, that is the responsibility of the Department of Health and their officials. This activity is all viewed, monitored and coordinated out of the Government Operations Centre.
I should ask at this point: Have you been to that centre?
Senator Day: No.
Mr. Day: It may be of interest to this committee to see the operation. I do not think that would be out of line. It may answer some of the aspects of technical questions. It shows the reach of the coordination of information, and how responses can be coordinated. It might be of some interest to you.
Senator Day: Thank you. In reviewing the legislation, I noted that at clause 3 — the fourth line, ``provinces'' — there is a typographical error. Under clause 4(j), ``province'' again is a typo. This bill came from the House of Commons, but I assume the House of Commons, in their careful review of this legislation, would have picked up those items.
Ms. Wong: What is the typo, senator, I am sorry?
Mr. Day: Can you point out typos out again?
Senator Day: Yes. Take a look at clause 4 — perhaps it is just my copy — subsection (j).
Mr. Day: Yes, ``providing financial assistance to a province.''
Senator Day: You do not have that?
Senator Joyal: No; you have the electronic copy.
Senator Day: My friend does not have the typo. Obviously, it has been picked up and I have a copy before it was picked up.
Mr. Day: It shows how sharp you are, senator. You are checking up to make sure we caught that.
Senator Day: I wonder what other changes have been made. I will still ask my questions.
Mr. Day: No scary changes have been made, but we captured that undotted ``i'' and we dealt with it.
Senator Day: I am glad you did. Did you also put in a definition for ``emergency?''
Mr. Day: No.
Senator Day: Has that been debated?
Mr. Day: There was discussion on that. Once you start to define ``emergency,'' if you define it too tightly, something could happen and someone could say, that is not an emergency. Things of an urgent nature are an emergency. That is why we talk about legislation. This climate in which we live is evolving, such that the nature of things that could happen begins to take on increasing proportions. To define ``emergency'' runs the risk of limiting not only who might be responsible for something, but even the federal government's ability to coordinate or to test something.
Senator Day: If we look at clause 4(g), it refers to ``with respect to a declaration of an emergency under an Act of Parliament.'' For me to find out what emergency might trigger this provision, I must go to other acts of Parliament. Is that the way I should interpret this?
The Chairman: You can go to the dictionary and have a common sense interpretation.
Ms. Wong: There are two answers to that. The first is in terms of ``emergency,'' we look to the dictionary for the normal definition of ``emergency''; but this specific reference is to the Emergencies Act. For us to trigger a national emergency, we must consult the lieutenant governor of each province. You are absolutely right; we must consult the Emergencies Act itself to trigger a national emergency.
Senator Day: Instead of saying the Emergencies Act, however, you said ``under an Act of Parliament.'' That act is the Emergencies Act. Is that correct?
Ms. Wong: Yes.
The Chairman: Should I put you down for a second round? There are three other senators.
Senator Day: Who have read the act? I would be pleased to wait.
The Chairman: I am trying to give everyone a chance.
Senator Day: I understand, Mr. Chairman. Thank you for that opportunity to clarify those points.
Senator Fraser: Minister, this question comes back to the federal-provincial jurisdiction. Clause 4 of the bill is respectful of provincial jurisdiction. You cannot be given assistance, whether financial or otherwise, I guess.
Mr. Day: Did you say you can or cannot?
Senator Fraser: Cannot, unless the province requests it.
Mr. Day: Correct.
Senator Fraser: Clause 6(3) says you cannot respond in any way to a provincial emergency unless the province requests it or there is an agreement with the province.
Mr. Day: Is that clause 6(d)?
Senator Fraser: No, clause 6(3), at the top of page 5.
The Chairman: They always want one thing — money.
Mr. Day: Yes.
Senator Fraser: We then come to clause 7, which allows the Governor-in-Council to make regulations ``. . . declaring a provincial emergency to be of concern to the federal government.'' What does that phrase mean and why do we need it? It sounds as if, all of a sudden, you can throw out all those protections for provincial jurisdiction and — I guess, under peace, order and good government — say, we do not care, this is national anyway. What are we talking about here and why do we need it?
Mr. Day: One thing that drives this provision is related to the disaster financial assistance act where, at some point in time, a province can make a declaration or a request that the amount of money required to fix the disaster — to clean up, to deal with the flood and whatever it may be — exceeds a certain limit, based on a per capita base of population and cost that a province has paid out or when it assesses that level has been hit, this federal act kicks in and that declaration can be made. It is to give that particular guidance.
It sometimes takes a matter of two to three years — in some cases, it has been even more years than that — to gather all the receipts from the provincial government. They assess the cost, look at their population and see when the federal cost sharing comes in. The provision is to enable and direct that particular declaration.
The federal government has not imposed something. The provincial government, consistent with respecting provincial rights, makes an assessment of their costs and says, ``There is a part here for the federal government to play.'' That declaration kicks in the disaster financial assistance formula.
Senator Fraser: It is not at all what it sounds like: this phrase is only a minor little technical thing.
Mr. Day: This provision is major, because it declares at some point when a provincial emergency has happened, let us say a flood or a tornado, if the emergency is such an order of magnitude. It can trigger a federal formula, and then that becomes a concern to the federal government, and the province makes that point.
Senator Fraser: I understand that, but it is not a sweeping ``peace, order and good government, the-heck-with-all- other-legislation'' provision.
Mr. Day: No.
Senator Fraser: Would it not have been simpler to say, ``in accordance with the provisions of the disaster financial assistance act''?
Mr. Day: In some ways, but there are also other provisions. We do not want to narrow it only to that particular funding mechanism. It is saying that there will be a point in time where a provincial emergency will be a matter for the federal government and a concern to the federal government.
Senator Fraser: I think I remain confused, but we are short of time.
The Chairman: We are.
Senator Joyal: My question is in reference to clause 8 and the amendments regarding the Access to Information Act. Do you have a letter from the Inforamtion Commissioner concurring with those changes to the Access to Information Act?
Ms. Wong: The Minister of Justice, who is responsible for the Access to Information Act, was consulted, and he concurs with the changes to this legislation. We have consulted the Information Commissioner on this legislation as well.
Senator Joyal: Do you have a letter from the Information Commissioner?
Ms. Wong: The letter, I am sorry, would say what?
Senator Joyal: Having reviewed the provisions of the act, the Information Commissioner feels that the privacy of citizens is well protected the way the amendments have been drafted.
Mr. Day: There was considerable consultation clearly with that office. I would need to check and see if there was some kind of verifying correspondence. It was never brought to our attention that anything was offside here. We can check on that and let you know.
Senator Joyal: I would appreciate that.
The point that is of major concern is the federal-provincial coordination. The Senate special report that you mentioned in your presentation — and we commend you for that — maintained that there was a need to improve federal-provincial cooperation and to clarify responsibilities when the federal government takes over, especially when the Armed Forces are involved or the federal services of the RCMP, and so on. Can you identify which part of the bill is new legislation with regard to the previous legislation that improves and clarifies the level of responsibility of the provinces in relation to the answer to an emergency?
Mr. Day: First, this clarification is and has been one of the challenges, but we think we have handled it effectively. This clarification goes back to a clear principle, namely, local response first and the local ability to have the capacity to handle whatever the emergency is. That response can quickly escalate upwards. Ipage can tell you that local officials and people who attend at the Canadian Emergency Management College, people who are trained in this area, have zero desire to maintain something at a local level that is going out of control. Quickly, the principles of escalation move to the provincial and federal level and, under protocols drawn up with Canada Command, to the military level, if required. We saw how this worked, but we believe the act now improves it. For instance, we had the forest fires in the Okanagan in British Columbia that were so devastating. The emergency was first identified at a local level and was fast moving beyond their capacity. The provincial level was then involved, along with a number of municipalities and regions. It was then identified that, to get a handle on it, there would need to be military and Canada Command involvement. At no point along that cascading scale was any official saying, ``No, we want to keep this at our level here.'' There was a clear recognition. Now, with the act and the principles being firmly established, there is recognition that first responders will be the first responders, and that is the local level, but moving it up quickly to draw in federal participation is a basic principle of the act.
I do not have the old act before me. I do not know if we have something here.
The Chairman: We can have our staff search for that.
Mr. Day: I am receiving guidance from the director. If you look at section 4(1) in the new bill, it says, reflects the objective of a common approach to emergency management by ``promoting a common approach to emergency management'' across jurisdictions, including the private sector. These principles are built in, understood and I think I can say, appreciated by those who operate at the different levels.
The Chairman: We can have our staff circulate a memo on the differences between the two acts.
Senator Joyal: That would be helpful for us to understand how much this bill is an improvement from the previous one.
Mr. Day: We can do that. That would be helpful for you, of course.
Senator Joyal: Yes, thank you.
Senator Andreychuk: I have a public policy question. It seems to me that this act tries to maximize expertise, whether local, provincial or national, about certain issues that then become an emergency. We do not know if an emergency will be about forests, an oil situation or health. People dealing with the emergency should have expertise about the subject matter. When it turns into an emergency, you are looking at receiving a proper, coordinated response. It seems that the concern has been not so much, ``If it does not go well, who is at fault,'' which always seemed to be the situation. You are trying to minimize that fault-finding and ensure that we have the most effective response we can get, but not a guarantee. It is a response. When we receive pieces of legislation, we are sometimes left with the idea that they will be foolproof, and they are not.
My other question concerns Britain. During a discussion on emergencies, they said that the expertise and the coordination being in place, with legislation to back it, was important, but the key was testing and running all the people together through scenarios. That approach was the best and most effective way of responding to a later emergency. They were talking about the city of London with all the myriad jurisdictions and capacities. Once they ran through the testing, they were more capable when the event occurred. Is that where we are going with this legislation from a public policy point of view?
Mr. Day: It is. Let me address it, senator, in the order in which you presented it.
First, you talked, rightly, about the difference between subject matter and defining responsibility in terms of jurisdiction as an incident grows. Using the example in the last budget, for instance, we assigned $1 million to our emergency management programs across the country to train first responders, primarily firefighters, and anything to do with handling hazardous materials. There, we are dealing with subject matter, but we are not really dealing with the jurisdictional issue. We are dealing with financing to the tune of $1 million and the capability of the people on the front lines to respond effectively and to diminish the danger to themselves and others.
When it moves to the jurisdictional discussion, which the act addresses, I cannot tell you how much I appreciate you saying that it is not a guarantee. No piece of legislation can ever guarantee 100 per cent that an event will be prevented, nor can it guarantee 100 per cent that the response to it will be perfect. As a matter of fact, we have yet to see an event in Canada where things were handled perfectly. This proposed act helps to minimize the eventuality of things going wrong, but there is no guarantee. By working and coordinating the principles, citizens can have some sense of assurance that someone is looking into this, and people are working together and walking through it. You are right that there cannot be a guarantee. That claim would give a false sense of security. However, there can be improvement, and that is what we think this act does.
With regard to your final point on testing, my senior department officials know that I have been insistent and repetitive in this particular area. There is the tabletop exercise, where we have a virtual event and then determine who was supposed to respond, who did not respond and how we can improve, or there is the staged event.
We have received increased funding to allow jurisdictions to undertake these types of events. I agree with you, as do my officials. It is in the testing that we can find out where the flaws are.
I attended an event of this nature in Calgary some time ago. It was a replication of a freeway collapse and the damage attendant with that. I think you would have been impressed to see it. Cars were buried under concrete, with mannequins in the cars. When responders arrived at the scene, they needed to establish the extent of injury.
There was a natural gas rupture city-wide, with gas being released. They quickly needed to deal with something local that expanded to the city, and then swept across the region. Valuable lessons are learned from such events.
Not long ago, there were similar preparations for a nuclear event off Prince Edward Island of which you are probably aware. These events are costly to carry out, but necessary. I appreciate your raising the point. It is a focus of mine. We have increased funding for this purpose. It is probably the best way to minimize things going sideways when they should be going forward in a time of emergency.
The Chairman: We have come to two o'clock, and I want to thank the minister very much.
Mr. Day: I want to thank you, Mr. Chairman and members, for the insightful guidance. We will get back to you on the elements that we indicated we would. There may be further elements arising as you consult with Ms. Wong.
The Chairman: Ms. Wong, perhaps you could introduce yourself and your colleagues so everyone has a good picture of who is appearing before us.
Ms. Wong: It is a pleasure to introduce myself. My name is Suki Wong. I am the Director of Critical Infrastructure Policy at the Department of Public Safety.
To my left is Richard Mungall, legal counsel with the Department of Justice, and to my right is Jacques Talbot, legal adviser with the Department of Justice.
Senator Jaffer: My question arises from something the minister said in his presentation. If you cannot answer my question, I will respect that. The minister talked about being prepared if an emergency happened to the south. Do you also have an emergency plan in place for when our citizens are in other areas in large numbers, for example, the situation in Lebanon? Do we now have a plan in place for the future so we can respond to the situation faster?
Ms. Wong: With respect to what the minister said, the Department of Foreign Affairs and International Trade is responsible for having plans for evacuation of Canadians from abroad, if the situation arises. Our minister's role would be to ensure that each minister has those plans in place. He would be responsible for verifying that the Minister of Foreign Affairs has those plans in place.
Senator Jaffer: Once this act is in place, is that what will happen?
Ms. Wong: Yes.
The Chairman: The minister referred to the Government Operations Centre, in case we wanted to visit it. Where exactly is it located, or is that secret? I was only kidding.
Senator Joyal: It is in the bunker built in the 1950s.
Ms. Wong: My colleague, the Director of the Government Operations Centre, when asked this question, does not say specifically where the location is, but we would be happy to send the information to you outside of a public forum.
The Chairman: However, it is in the general Ottawa area?
Ms. Wong: Yes.
Senator Nolin: We do not need the address.
The Chairman: No, we do not need the address, but I want to confirm that it is in proximity. We will discuss that.
[Translation]
Senator Nolin: Paragraphs (a), (b) and (c) of subclause 6(1) set out the responsibilities of ministers in preparing emergency management plans. Those are heavy responsibilities. Subclause 6(2) deals with the preparation of emergency plans by ministers of the Crown. Emergencies even include war or armed conflict. I distinguish between prevention, meaning, all measures implemented to prevent events from occurring, and preparation, i.e., everything that has to be implemented once an event occurs.
Paragraphs (a), (b) and (c) of subclause 4(1) set out the minister's responsibilities in the preparatory or preventative stages: (a) establishing policies, (b) providing advice to government institutions and (c) analyzing and evaluating emergency management plans. However, I would like to have seen more, especially when the Treasury Board Secretariat has such enormous responsibilities to implement the government's financial plan: controlling expenditures, implementing public policy with regard to the government's financial management and rigorously monitoring its decision-making process.
As for the emergency plans, I do not see that, even though I feel there is a lot of goodwill on the part of the minister who is concerned by the quality of his colleagues' emergency plans. He is not satisfied with the quality of those plans and hopes that this bill will be of assistance. Correct me if I am wrong, and if not, what can be done to correct the situation?
[English]
Ms. Wong: I want to assure you that the proposed section 4 would give our minister the responsibility to better co- ordinate emergency management across the Government of Canada and also bring greater accountability to how emergency management activities are carried out within the Government of Canada.
With respect to the existing legislation, the Emergency Preparedness Act does not identify the Minister of Public Safety to provide advice, but at the same time obliges other ministers to plan, test and exercise their plans according to the principles, programs and policies put in place by our minister.
From our perspective, this bill gives Canadians, the provinces and the Government of Canada better accountability for emergency management activities within the Government of Canada.
Senator Nolin: I hear you, but for me prevention is key.
I always go back to January 1998 in Quebec. Suddenly, one day, six hours after the event, everybody was in the dark. We had all sorts of plans. Everybody had a responsibility. Guess what? Everybody was in the dark, searching for help. Prevention is everything.
Ms. Wong: Prevention is highlighted in this legislation, which is not in the existing legislation, and it accounts for the full spectrum, senator, of emergency management activities — mitigation, which reduces the impact of disasters, prevention, and the recovery aspect, which is carried forward. It is a new and strengthened bill for emergency management activities.
Senator Andreychuk: I understand the prevention that Senator Nolin talked about. My confusion is that we cannot put someone in as the emergency tsar who, when something happens, would then be able to exercise his or her own discretion over provincial powers, plans, expertise, et cetera. I am not sure where we are going.
Senator Nolin: I am trying to avoid chaos. That is where I am going.
Senator Andreychuk: It would create it. This has happened over a series of governments, not only this government. It is not a new thing. We are improving on systems and gaining experiences from where we have not done much.
It seems to me that the minister's whole responsibility, if I understand clause 4 and then clause 6, is to ensure that everyone has these plans in place, starting first with the minister's own ministers. If the minister feels that the plans are not working, I want to know what the alternatives are. One would be that the minister, through political means, could even approach the Prime Minister and say, ``We do not have it in place and I am not getting the response from your minister.''
Senator Nolin: The minister could provide advice.
Senator Andreychuk: Is there anything in this bill that allows the minister to go further in a legal sense, vis-à-vis the departments? I have not been able to pick it up that succinctly.
Richard Mungall, Counsel, Department of Justice Canada: For the information of senators, when we closely read clause 6(1), it does not change the powers that other ministers may have under their legislation, whatever it might be — the Health of Animals Act, Quarantine Act, the National Defence Act, Aeronautics Act, and so on. The bill does not change the authority that those ministers have with respect to those acts and how they may apply those acts or regulations in any given scheme. This bill does not purport to do that because it cannot. Those powers are vested in other ministers. Clause 4 gives the Minister of Public Safety the overarching, if you will, general responsibilities to align all the plans that other ministers may prepare so that they can act in a coordinated fashion without delving into the particularities of the powers that may be in statute A, B or C. That responsibility is a key feature.
Were it otherwise, if the Minister of Public Safety had the power to overtake other ministers' powers, the bill would be considerably longer than it is now because we would probably need to enact amendments to every other piece of legislation that other ministers already have.
Ms. Wong: It also goes to a point you raised earlier about the importance of conducting exercises. A specific provision in clause 4(1)(n) makes sure that the minister has policies in place for conducting exercises, and providing education and training for emergency management. That particular provision is to ensure that all government ministers practice and test their plans so we have a more coordinated and coherent approach, should an emergency take place. It does not mean that the minister will go in and actually exercise other ministers' plans, but the minister's responsibility through our department would be to ensure that each department test their plans and that the plans are linked to a national response system.
Senator Day: I have two points. I have already spoken to Ms. Wong about the website of her department in relation to the two typographical errors. Those could be picked up.
I know you will do an analysis for us, but why do we need this legislation, other than changing words, such as not calling it ``civil emergencies'' any longer? I have looked closely at the existing Emergency Preparedness Act and I have not come to understand that there is an obvious reason why we need this new legislation.
When you prepare the analysis of the difference, will you be able to help us with that?
Ms. Wong: Absolutely: We will send you almost side by side comparison of the current legislation and the bill. What is new in this legislation is the recognition of the full spectrum for emergency management activity. The Emergency Preparedness Act was focused on preparedness. It did not speak to mitigation or prevention. That is a new feature of the emergency management bill, Bill C-12.
Another new feature of this legislation is the recognition that emergency management is a collaborative approach that includes more than provinces and territories, which is recognized in the Emergency Preparedness Act, but also other entities such as the private sector and non-governmental organizations such as the Red Cross, who are also key players in emergency management. That approach is new in this piece of legislation.
An additional new provision is clause 5, the assistance to the U.S. That was not in the Emergency Preparedness Act. That provision gives our minister the authority, in consultation with the Minister of Foreign Affairs, to approve assistance to the U.S.
As well, clause 6 requires each minister, and we talked about this earlier, to design, develop and test their plans in accordance with the policies and programs set by our minister. That feature is new.
In addition, the consequential amendments to the Access to Information Act are new. Those provisions are supported by private sector people who own and operate about 80 per cent of the critical infrastructure who are concerned that, if the information is shared with the Government of Canada, it may be disclosed. That is new as well. We will be happy to provide you with that analysis.
Senator Day: That latter part is one of the drivers, I suspect, in all of this legislation, because so much infrastructure is owned by the private sector. We need special provisions for them. The bill deals with not only government institutions or government-to-government institutions.
Ms. Wong: That is one of the drivers.
Senator Day: I am still not clear why you have not attempted to define ``emergency.'' This act refers to emergencies throughout. The bill does not apply unless it is an emergency. The provinces will declare an emergency, then two steps in clause 7 are needed, saying it is of interest to Canada and then the government authorizes some funding: but it must be an emergency.
In this instance, is the federal government, under clause 7, accepting the provincial government's definition?
Ms. Wong: You have raised good points, senators. When we drafted the bill, the definition of ``emergency'' was intentionally left out because, in our opinion, if ``emergency'' is defined, it may limit our minister's, or the government's, ability to respond to emergencies that we cannot predict or have not seen recently. The purposeful intent was to not define ``emergency'' to provide the minister the flexibility to respond to future unforeseen emergencies.
Second, with respect to the definition of emergencies in provincial legislation, the definitions of ``emergency'' of all provinces and territories is not consistent. By defining ``emergency'' in this legislation, we would risk being inconsistent with the provinces and territories and we may not be able to respond to an emergency declared in a province.
Senator Day: When you plan and test your plans, how do you determine whether you are planning for an emergency? You do not know what an emergency is. It is whatever the minister decides it is at any particular time.
Ms. Wong: As the chair of the committee said, we go to the dictionary for the definition of ``emergency.''
Senator Day: Is it correct that all the planning and everything that flows from this act is based on a dictionary definition of ``emergency''?
Ms. Wong: Defining an emergency management plan is a complex task, in which I am not an expert. I know that different standards are put in place, including the definition of ``emergency'' and many other elements required to develop a robust emergency management plan, including how we define emergencies. The plan is not based only on emergencies: it is based on experience and lessons learned. There are various aspects to the development of an emergency management plan.
Senator Day: You are planning for an intuitive thing.
Ms. Wong: It is not necessarily only intuitive. It is based on much experience of experts in developing management plans.
Mr. Mungall: Clause 6(1) says that ministers ``are to identify the risks that are within or related to'' their areas of responsibility. That clause takes emergencies from the risk management point of view as opposed to a legalistic definition of what an emergency may or may not be. What may be a risk to one minister may not be considered a risk by another minister.
As Ms. Wong said, the definitions in the legislation of some provinces are similar, but not in all provinces.
Senator Nolin: Clause 6(1) refers to the identification of risk by each minister, that is, the individual statutorily responsible within the federal jurisdiction.
I hope the Minister of Public Safety decides whether the evaluation of the risk is properly done.
Ms. Wong: Each minister is responsible. The Minister of Transport, Infrastructure and Communities is the expert in transportation. The minister relies on expertise in the department to identify the risk to the infrastructures in the minister's area of expertise, just as the Minister of Health or the Minister of Agriculture does.
We rely on the expertise of each minister and each minister's officials to develop those plans or identify those risks.
Senator Nolin: Under clause 4(1)(c), when the minister analyzes and evaluates emergency management plans the minister must have in mind the evaluation of the risk, or that minister takes a blank approach. The department is in charge of the evaluation. The minister does not evaluate that risk. The minister take it as it is from the department. Therefore, what is the meaning of clause 4(1)(c)? I hope that all those plans will be related to and influenced by those risks.
Ms. Wong: You are right. Plans are based on a risk management approach. We rely on each department to know their area and to know the risks therein, and to have conducted a risk assessment based on sound risk management principles. Clause 4(1)(c) relates to that approach. Once those plans come to our department, our officials evaluate and analyze them to ensure that they are based on solid risk management principles.
Senator Joyal: As a follow-up to the question of Senator Nolin, if the Minister of Public Safety were granted the capacity to take over other departments in special circumstances, corresponding departmental legislation would need to be amended.
Since it is clear in the bill that this bill does not propose avenue, can you tell us what the corresponding situation is in the United States and Britain in terms of the authority granted to Michael Chertoff in the U.S. and his counterpart in Britain?
Following an emergency situation in the United States, they reviewed their capacity to respond, because they believed that due to the different levels of authorities that had to intervene, response was slow. I believe they have reviewed their line of command to give real authority to the person who takes over in a national emergency so that he or she does not need to phone 10 different people but, rather, has the capacity to make decisions.
Did you review the corresponding American or British legislation to see if the models exposed in this bill correspond to the approach in the United States and Britain?
Ms. Wong: Our bill is tailored to the needs of Canadians and the risk levels that Canada faces. We have reviewed the Civil Contingencies Act in the United Kingdom. Their approach is different, as is the approach of the U.S. They have both revised their legislation, and we could provide you with a more fulsome analysis later. I do not want to give you misleading information.
Senator Joyal: I will not ask for an answer now if you are not prepared to answer.
If our research staff has conducted an analysis, perhaps they could provide information on this question.
It is a matter of policy which model we take. In each model there are probably some difficulties and some advantages. It would be helpful to have that information.
The Chairman: Our researcher will do that.
Senator Joyal: You have probably exchanged information with your colleagues in the United States and Britain, and you may have information that would be helpful to us in understanding this bill.
Mr. Mungall: For the information of senators, we must take into account the different government systems that apply in both Britain and the U.S. We can certainly appreciate that they are different from those in Canada.
Senator Joyal: I totally agree. A unitary form of government, such as that in Britain, is different from ours. However, the United States is a federation and the states have important responsibilities.
I want to know how it works in practice following the bad experiences they had, especially with Hurricane Katrina and the work that was done at that level of review of their legislation so that we understand the implications of a different model of management of emergencies.
Ms. Wong: We will provide the committee with the analysis that we have conducted.
Senator Joyal: My final question refers to clause 5 of the act, to which you have referred, dealing with the United States.
Clause 5 does not mention agreements entered into with the United States but refers more joint management plans. I was surprised there was no formal agreement as you have with the provinces and as stated in clause 4(1). That clause clearly states:
The Minister's responsibilities under section 3 include:
(g) establishing arrangements with each province whereby any consultation with its lieutenant governor in council with respect to a declaration of an emergency under an Act of Parliament may be carried out effectively.
In French it is much clearer to me. It states:
[Translation]
(g) establishing arrangements with each province whereby any consultation with. . .
[English]
Therefore, agreements with the provinces are formal, as stated in the French version, which is not exactly reflected in English. It says ``arrangement,'' which does not mean ``agreement'' per se. With an agreement, we know there is a signed paper that is well understood on both sides.
With regard to clause 5, we do not seem to have a formal agreement with the United States but we would sit down with them and try to reach a shared joint approach. In other words, we would have detailed agreements with the provinces that are the object of the regulations, as provided for in the regulations. It appears in clause 7, which states:
The Governor in Council may on the recommendation of the Minister make orders or regulations
(c) declaring a provincial emergency to be of concern to the federal government.
The way I understood the approach is that with the provinces we have a legal framework in agreements, regulations and so on. However, as far as the United States is concerned, we will sit down with them and see if the two plans can be coordinated. That is, we do not have a formal agreement with the United States per se, between the two sovereign countries.
Why is that? Why do you limit that clause only to coordination based on no formal agreement?
Ms. Wong: Clause 5 does not specifically reference agreements or formal arrangements we have with the United States, but we do have a formal binational arrangement with the United States that talks about emergency management planning. Those arrangements exist. They are not referenced in clause 5, but those arrangements exist.
The reason there are specific details in clause 4 to the provinces is because provinces are the first responders, and we must ensure that our plans are complementary to the provinces and territories.
Senator Joyal: Therefore, you have an agreement. Can you give us a copy of that agreement? That should be a public document.
Ms. Wong: Absolutely.
Senator Joyal: I will read the text from the last three lines of clause 5:
. . . coordinate Canada's response to emergencies in the United States and provide assistance in response to those emergencies.
In other words, clause 5 allows us to enter the United States, but it does not recognize in any way the context into which the United States could be called to come to Canada to answer a similar call made by the Canadian government.
Why is the relationship only one way in this proposed clause?
Ms. Wong: With respect to this proposed clause, it primarily discusses our assistance to the U.S., but there are established arrangements in place that talk about reciprocal and mutual arrangements. Neighbouring provinces and states already have those mutual assistance agreements in place.
The arrangements do exist. They are not referenced in clause 5, but arrangements are in place for mutual assistance.
Senator Joyal: If you reviewed the legislation, why did you not include the role of your minister, in consultation with the Minister of Foreign Affairs, in negotiating and concluding those agreements?
Ms. Wong: The purpose of this legislation builds on existing principles and arrangements. It does not change existing arrangements already in place between Canada and the United States or between provinces and states. That is my answer to your question.
Senator Joyal: Respectfully, that is half an answer. We will define clearly with the provinces at which level we become responsible and we share the cost.
However, as far as the United States is concerned, we do not have a more complete approach in this bill as to how we cooperate with the United States. Where do we share the costs? What is recovered? What is not recovered?
Since this bill refers to the responsibilities of the United States, as I said, I thought we would be more enlightened with this bill than left in the dark in relation to what we do with the United States, and what we can expect from them.
Ms. Wong: I agree. That is a keen observation. I point you to the reference to develop joint emergency management plans. From my perspective and in reading the legislation, ``joint'' means that the U.S. would participate with us at the same time, collaborating on joint, mutual and reciprocal agreements under proposed clause 5.
Senator Joyal: Will you provide us with the framework agreement you have with them?
Ms. Wong: There is an existing one. Yes, we will.
Senator Joyal: In relation to clause 7:
The Governor in Council may on the recommendation of the Minister make orders or regulations
(c) declaring a provincial emergency to be of concern to the federal government.
Do those regulations exist now or will that be a new regulation?
Ms. Wong: Those regulations do not exist now.
Senator Joyal: Therefore, paragraphs (a) (b) (c) and (d) of clause 7 will be the object of future regulation?
Ms. Wong: If necessary, then those sections will be invoked. Right now, clause 7(a), per se, the development and preparation of emergency plans, testing and implementation of those plans, are already covered in policy. Therefore, policy already exists.
Senator Joyal: However, it is not in the form of regulations?
Ms. Wong: No, it is not in the form of regulations.
Senator Joyal: Therefore, none of the subjects covered by paragraphs (a) (b) (c) and (d) of clause 7 are presently the object of regulation?
Ms. Wong: Paragraph (c) is invoked when there is a provincial emergency that is of concern to the federal government.
Going back to what the minister stated, when the disaster financial assistance arrangements are invoked, and there is a trigger for financial assistance, then the Governor-in-Council issues an Order-in-Council making financial assistance possible.
Senator Joyal: Under that act, the Governor-in-Council has authority to make a declaration that there is a national emergency, and the federal government automatically shares financial responsibility in answer to the situation?
Ms. Wong: Yes.
[Translation]
Jacques Talbot, Legal Counsel, Department of Justice Canada: If I might add a clarification —
Senator Joyal: Yes, of course.
Mr. Talbot: Under the Emergency Preparedness Act, there are two identical provisions. Up until now, over 85 Orders-in-Council were passed providing provinces with financial assistance under the Disaster Financial Assistance Program. Those are not new provisions. Simply put, we included an existing mechanism in the new legislation to provide post-disaster financial assistance.
Senator Joyal: Are there negotiations with the provinces still pending for the settlement of ``past disaster'' claims, where the Canadian government responded to provinces' requests?
[English]
Ms. Wong: Bill C-12, the emergency management act, or existing legislation, the Emergency Preparedness Act, does not extend beyond the Government of Canada. The regulations, even contemplated in proposed section 7, would not extend to the provinces or the territories.
Senator Joyal: Thank you but that is not the question I asked. Are negotiations pending presently with provinces for the settlement of claims that the provinces would have made to the federal government in relation to previous federal emergencies whereby the federal governments would have come to the aid of the provinces?
[Translation]
Mr. Talbot: The process takes some time. Under the program, provinces have to send in all relevant documents. I cannot provide you with a specific answer, but my client will no doubt be able to come back to you with more information on the cases that are pending. In general, this process runs quite smoothly. It has helped settle close to 90 claims, pass orders in council and make payments.
[English]
Ms. Wong: There are outstanding claims to be negotiated. We can provide you with that information along with all the other information we need to bring to you.
Senator Joyal: Senator Nolin may remember the case I have in mind.
[Translation]
That was the case at the Quebec City Summit when federal forces had to intervene. The intervention generated additional costs that were included in a claim made by the Government of Quebec to the Canadian government, because those were unexpected costs. At the time, the situation had gotten out of control, and the provincial police force did not have the capacity to respond. Obviously, it is with that in mind that I wanted to raise the issue.
[English]
My last question is in relation to clause 4(1) of the bill, which states:
The minister's responsibility under section 3 include
(l) establishing the necessary arrangements for the continuity of constitutional government in the event of an emergency.
Could you explain what that means?
Mr. Mungall: Thank you, senator, for that question. The Department of Public Safety has a program to do exactly that with those elements. They are not comprised of the public service, but the Senate, the House of Commons and the various courts, and they have a program to accomplish this aim. It is currently undergoing development or redevelopment as I understand from officials of the Department of Public Safety.
Senator Joyal: Can you be more precise?
Mr. Mungall: It might be more appropriate if the actual official from the Department of Public Safety came back at another time to explain that further. I am not in a position to explain much more than that. It is not my program.
The Chairman: You could report back to us in writing.
Senator Joyal: It would be better to have an officer or officers because then all senators can share the information.
The Chairman: We have three more questioners and we must then discuss later —
Senator Joyal: Not today.
The Chairman: I understand that.
Senator Fraser: I am coming back to section 7(c). The minister explained about the disaster financial assistance act requiring a provincial declaration of emergency to the federal government. I asked if it would not have been simpler to have pinned this clause to that act. He said no, there were other things involved and I thought I heard him say at the end of his response that — though I did not make a note of it — there might be broader reasons, or some such implication, for him wanting to preserve this power.
This question is not loaded, I only want to know: Is this clause considered to be necessary to comply with the requirements of other acts or federal-provincial agreements or such requirements or are deemed necessary because the federal government wishes to have in hand a safety valve in the case of an emergency arising, in which the provincial government, for whatever reason, does not request assistance but for which the federal government believes it is in the national interest to respond?
Ms. Wong: This provision is necessary to trigger financial assistance to the province or territory once they require that assistance. It does not infringe on provincial jurisdiction or authority in terms of directly intervening in an emergency. Proposed subsections 7(c) and 7(d) need to be triggered by a provincial request for assistance.
Senator Fraser: Subclause (d) is clear but subclause (c), on the face of it, is so much broader that I want to be clear of the reasoning that lies behind it.
Ms. Wong: The reasoning for it is the Government of Canada cannot intervene in a provincial emergency unless it is requested by the province or the territory to intervene.
Senator Fraser: That is not what subclause 7(c) says.
Mr. Talbot: That section must be read with section 4(1)(j). It is a requirement before providing financial assistance the Governor-in-Council must make this declaration that the specific provincial emergency . . .
Senator Fraser: Yes, that is clause 4(1)(j).
Mr. Mungall: Those two sections work in sync. Clause 4(1)(j) states that if a declaration has been made by the Governor-in-Council, the minister is then authorized to make that financial assistance. Without that declaration, in terms of the mechanics of the way the bill is set up, the minister cannot make that declaration; it has to be the full Governor-in-Council to make that declaration before financial assistance can be made. That mechanism is a carry-over from the Emergency Preparedness Act.
Senator Joyal: We will return to this point because it is critical.
Senator Fraser: I think it is oddly phrased and placed if that is indeed the purpose of it.
Senator Day: May I have a supplementary question on that?
The Chairman: Yes.
Senator Day: The issue is clause 7, a declaration declaring a provincial emergency to be a concern to the federal government. Does that declaration trigger any right or indication that the federal government will intervene or participate in the emergency other than in a financial way? My colleague is reading this to mean that once the federal government declares the emergency in a province if of interest, the federal government can then intervene in the provincial emergency.
Senator Fraser: No, I was inquiring whether that was what this cause was designed to do. I think it could be interpreted that way, but I am told this is apparently not the design.
Senator Day: Sometimes the wording is designed for one thing but can cover something else, and that is the point. We want you to think about that.
We have to go on now.
Senator Joyal: I think it should be read with section 91of the Constitution Act, 1867: Peace, order and good government. If the Government of Canada is concerned that there is a national emergency, a provincial government cannot prevent a federal government from intervening. They cannot say, ``Stay home. We will manage it.''
I think that under section 91, the federal government still has that capacity. I read it like Senator Fraser in that the Governor-in-Council makes orders declaring a provincial emergency to be of concern to the federal government.
When I read this, I thought exactly the same as Senator Fraser. It says, If the Governor-in-Council adopts a decree ``declaring a provincial emergency to be of concern to the federal government.''
Senator Day: If gives them jurisdiction.
Senator Joyal: That is the way I read it.
Mr. Mungall: Of course, those types of mechanisms exist already within the Emergencies Act, which is beyond the scope of this particular bill, but I agree, senator, those mechanisms exist but in existing legislation which is not covered here.
The Chairman: We may not have the right to bear arms in our Constitution, but we do have peace, order and good government, and it is a good thing we do.
Senator Jaffer: I want two things clarified. The terms ``arrangements'' and ``agreements'' have both been used. I am told there is a difference. Are there agreements or arrangements with the U.S.?
Ms. Wong: There are both agreements and arrangements in place with the U.S.
Senator Jaffer: When you provide us with information, you will provide us with both?
Ms. Wong: We will provide you with the information that we have. The Canada-U.S. bi-national memorandum of understanding is an agreement.
Senator Jaffer: The Public Safety Act gave the minister the power to make emergency measures under existing regulatory authority, bypassing the usual process. Would that apply to enabling provisions in this act as well?
Ms. Wong: Did you say the Public Safety Act? They are two separate pieces of legislation, so there is no direct connection between the two.
Senator Joyal: Did you say there is no connection?
Ms. Wong: There is no direct connection between the two.
Senator Jaffer: Therefore, there are no enabling provisions in that act that apply to this proposed act.
Ms. Wong: I am not aware that the regulations in the Public Safety Act, which I am not very familiar with, would apply under this clause 7 of the proposed emergency management act, Bill C-12.
Senator Joyal: We will look into that. Perhaps you could look into that at the Department of Justice, too.
The Chairman: I want to thank our witnesses for staying on. It has been helpful. Ms. Wong and gentlemen, thank you very much.
The committee adjourned.