Emergencies Act
Appointment of Special Joint Committee--Message from Commons--Motion in Modification Adopted
March 3, 2022
Honourable senators, pursuant to rule 5-10(1), I ask leave of the Senate to modify the motion so that it reads as follows:
That:
(a)pursuant to subsection 62(1) of the Emergencies Act, R.S.C. 1985, c. 22, a special joint committee of the Senate and the House of Commons be established to review the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency that was in effect from Monday, February 14, 2022, to Wednesday, February 23, 2022, including the provisions as specified in subsections 62(5) and (6) of the act;
(b)the committee be composed of four members of the Senate, including one senator from the Opposition, one senator from the Independent Senators Group, one senator from the Progressive Senate Group, and one senator from the Canadian Senators Group, and seven members of the House of Commons, including three members of the House of Commons from the governing party, two members of the House of Commons from the official opposition, one member from the Bloc Québécois and one member from the New Democratic Party, with three chairs, of which the Senate chair shall be a senator from the Independent Senators Group and the two House chairs shall be from the Bloc Québécois and the New Democratic Party;
(c)in addition to the chairs, the committee shall elect two vice-chairs from the House, of whom the first vice-chair shall be from the governing party and the second vice-chair shall be from the official opposition party, and one deputy chair from the Senate who shall be from the Opposition;
(d)the four senators to be members of the committee be named by means of a notice signed by their respective leader or facilitator (or their respective designates), and filed with the Clerk of the Senate no later than 5:00 p.m. on the day after this motion is adopted, failing which, the leader or facilitator of any party or group identified in paragraph (b) who has not filed the name of a senator with the Clerk of the Senate, shall be deemed to be the senator named to the committee, with the names of the senators named as members being recorded in the Journals of the Senate;
(e)the quorum of the committee be seven members whenever a vote, resolution or other decision is taken, so long as one member of the Senate, one member of the governing party in the House of Commons and one member from the opposition in the House of Commons are present, and the chairs be authorized to hold meetings, to receive evidence and authorize the publishing thereof, whenever five members are present, so long as one member of the Senate, one member of the governing party in the House of Commons and one member from the opposition in the House of Commons are present;
(f)changes to the membership of the committee on the part of the Senate be made in accordance with rule 12-5 of the Rules of the Senate, provided that any new members or participating senators take the oath of secrecy pursuant to paragraph (g) of this order before participating in proceedings;
(g)pursuant to subsection 62(3) of the act, every member and person employed in the work of the committee, which includes personnel who, in supporting the committee’s work or a committee member’s work, have access to the committee’s proceedings or documents, take the oath of secrecy as set out in the schedule of the act;
(h)every meeting of the committee held to consider an order or regulation referred to it pursuant to subsection 61(2) of the act be held in camera, pursuant to subsection 62(4) of the same act, and the evidence and documents received by the committee related to these meetings not be made public;
(i)for greater certainty, the chairs may move motions and vote on all items before the committee, and any vote resulting in a tie vote shall mean that the item is negatived;
(j)all documents tabled in the Senate pursuant to the act since February 21, 2022, be referred to the committee;
(k)until the committee ceases to exist or on Thursday, June 23, 2022, whichever is earlier,
(i)where applicable, the provisions contained in paragraphs (a), (b) and (c) of the order adopted by the Senate on February 10, 2022, respecting senators on standing joint committees, shall apply to senators on this committee, and the committee shall hold meetings in person where necessary to consider any matter referred to it pursuant to subsection 61(2) of the act; and
(ii)senators, members and departmental and parliamentary officials appearing as witnesses before the committee may do so in person, as may any witness appearing with respect to any matter referred to it pursuant to subsection 61(2) of the act;
(l)the committee have the power to:
(i)meet during sittings and adjournments of the Senate;
(ii)report from time to time, including pursuant to the provisions included in subsection 62(6) of the act, to send for persons, papers and records, and to publish such papers and evidence as may be ordered by the committee;
(iii)retain the services of expert, professional, technical and clerical staff, including legal counsel;
(iv)appoint, from among its members such subcommittees as may be deemed appropriate and to delegate to such subcommittees all or any of its powers, except the power to report to the Senate and House of Commons; and
(v)authorize video and audio broadcasting of any or all of its public proceedings and to make them available to the public via the Parliament of Canada’s websites; and
(m)a report of the committee may be deposited with the Clerk of the Senate at any time the Senate stands adjourned, and that any report so deposited may be deposited electronically, with the report being deemed to have been presented or tabled in the Senate; and
That a message be sent to the House of Commons to acquaint that house accordingly.
Is leave granted, honourable senators?
Hon. Senators: Agreed.
Honourable senators, I rise today to speak to the motion before you regarding the joint parliamentary review committee that is mandated under section 62(1) of the Emergencies Act which states that a special joint committee of the Senate and the House of Commons be established to review “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency . . . .”
The motion before you mirrors the one passed in the other place Wednesday evening. It is self-explanatory. It lays out the membership of the joint committee as it pertains to the Senate.
The invocation of the Emergencies Act on February 14 — for the first time in Canadian history since the inception of the act in 1988 — was historic. As the invocation of the Emergencies Act was historic, so too is the establishment of the joint parliamentary review committee to study and assess the circumstances surrounding the invocation of the act.
Because the committee is required to report to both houses of Parliament within seven sitting days after the revocation of the declaration by the Governor-in-Council, it now falls on the Senate to adopt a corresponding motion as was passed by the other place.
I ask honourable colleagues to adopt the motion expeditiously so that the committee can get to work and perform its due diligence for Canadians.
The motion that was passed in the other place lays out the parameters and makeup of the committee. When the Emergencies Act was debated in the Senate in 1988, there was a worry that the government and the House of Commons would move to include piecemeal Senate representation. What if, it was argued by honourable senators, the House of Commons chose to include only one senator? This would be unfair to the Senate.
Today, in 2022, I’m very pleased to see that the government proposed to the house a fair and proportionate Senate representation of four out of 11 members on this important committee, including a co-chair. I was even more pleased to see the House endorse our chamber’s role with votes in support coming from three of the four parties in the House.
The motion before you provides for the fair and proportionate representation of senators from each party or group in the chamber. It is designed to uphold the basic principles of group equity and fairness by ensuring that all Senate groups have the opportunity to select a senator.
As a reflection of the principle of proportionality, the motion provides that the senators selected from the Independent Senators Group will occupy the position of Senate co-chair. The Government Representative Office in the Senate will not be seeking a seat on the committee.
As some may argue that the literal wording of the Emergencies Act, section 62(2) — which states:
The Parliamentary Review Committee shall include at least one member of the House of Commons from each party that has a recognized membership of twelve or more persons in that House and at least one senator from each party in the Senate that is represented on the committee by a member of the House of Commons.
— precludes the appointment of non-politically affiliated senators.
In advance of any argument to that effect from honourable colleagues, let me quote the Honourable Senator Perrin Beatty, then Minister of Defence, in his testimony in front of the Senate committee studying the Emergencies Act legislation in 1988.
In response to a question put by former senator John Benjamin Stewart, Minister Beatty stated:
Senator, in designing this particular provision of the bill, we did not attempt to fix what would be the absolute number of members from the House of Commons, for that matter. We did try to provide that there would be representation from each of the political parties in the House of Commons. It would also be possible, presumably, that representation of the Senate might involve independent senators. One would hope that reasonableness would apply in any case where the two houses are called together to meet with one another.
In many elements of parliamentary and constitutional procedure in the past we have resisted setting up very rigid structures which are not capable of being adapted to particular circumstances. I do not think it is unreasonable to expect there would be goodwill in a national crisis or that reasonableness would apply.
Colleagues, we have a duty to Canadians to see to it that the Joint Parliamentary Committee charged with reviewing and studying the rationale and merit of the government’s invocation of the Emergencies Act on February 14 is constituted as quickly as possible. Each caucus and group can nominate one of its own without influence or dictum by the government. Senate members of the committee will undoubtedly bring experience, insight and wisdom to the committee’s deliberations.
The invocation of the Emergencies Act requires, by law, examination. The intent of the motion before you is to safeguard the plurality and diversity of voices. Former Minister Beatty himself, 34 years ago, went so far as to predict that independent senators would have seats on this committee if and when the need for its composition should ever transpire.
Colleagues, there is now a need, and I ask that this motion be approved so that the work may begin. Thank you very much.
Your Honour, I want to start off by thanking the Government Representative in the Senate for his collaboration today. I want to thank Senators Saint-Germain, Cordy and Tannas for agreeing to what Senator Gold now put into his amendment. It’s great when we can work together and make deals, and I believe that we have done that. I believe that the Senate, during this time over the last week, has shown the absolute need for this chamber. I would say that this chamber did a much better job on the Emergencies Act than they did in the other place.
I believe overall the collaboration here is much better than it is in the other place, and so I thank all honourable senators. I believe that the reason the Prime Minister came to his senses and revoked the Emergencies Act was because of the debate going on here in the Senate. I believe that cooler heads prevailed, and they saw the senselessness of having an Emergencies Act when there was no emergency.
However, we are tasked, as Senator Gold says, with studying this as a committee. We can say all we want that this is the way it should be — that this is the way a committee should be struck. When the act was struck, we did not have the kind of a Senate that we do now. We had a Senate that was basically made up of two political parties: the Conservative Party of Canada and the Liberal Party of Canada.
When they struck the Act, saying that there needed to be a senator in the chamber from all parties that were being represented in the House of Commons, they believed those would be the Conservative Party of Canada and the Liberal Party of Canada. It doesn’t matter what we say about the Senate now. That is what they believed at that time because that is the type of a Senate that we had.
So we now have a different type of a Senate, and we just simply decide to interpret what these people back in the 1980s wrote. Be that as it may, we live in — as they say — new and interesting times.
I’m always troubled when our government leader here refers to how they voted in the other house and always forgets to talk about the numbers of votes and the debates.
The fact of the matter is that the Conservative house leader in the other place came forward with a very, very reasonable amendment to what the government was proposing. The government had proposed that the two smallest groups in the house take the co-chairs. They did it for one reason and one reason only. They were trying to exclude the Conservative Party of Canada from being one of the co-chairs there. It was evident. Nobody can deny that. They did a good job of that. They browbeat Jagmeet Singh as the Prime Minister did with his threat of a confidence vote. Here again is something the leader failed to mention when he talked about how the other house had voted. He failed to mention that a minority Parliament threatened an election if another group would not support his demands.
Last night, the other place voted down our house leader’s amendment. Not with all the parties; with two parties. The Bloc — bless them for it — were given a co-chair position by the governing party, and they were willing to give up that co-chair position because they thought the right thing would be that the Conservatives have at least one co-chair. They were prepared to give up their co-chair position so that the Conservatives in the Senate could then have the co-chair.
For the Bloc to give that up obviously took a little bit of doing. That isn’t being mentioned here. What isn’t being mentioned here is that we have a government in the other house that is trying to take away the rights of a party that got more votes in the last election and in the election before than any other party. Yet, they’re not supposed to have a co-chair position. Why? Because the government is afraid of what is going to come forward if all of sudden the Conservatives have too many people and too much power in a committee, which they should have as the official opposition.
Let me tell you, colleagues, we are going to accept this motion — this amendment — on division, but we will accept what Senator Gold has brought forward because I really believe Senator Gold has done his job in trying to reach an amicable solution. I appreciate him for that. As I said, I appreciate the three other leaders collaborating and saying they agree that we should have that.
I do not believe we’re getting what we should be getting, but listen, you don’t always get what you think you should be getting or what’s fair. In this case, that is my belief.
I don’t want the words that I am saying here about the other place to be a reflection of what I believe in this place. I believe we did a good job. I believe we did a great job on both sides of the debate. I listened to senators on both sides of the debate, and we had good arguments here. At the end of the day — as I said — I believe the Prime Minister was reading the tea leaves and said, “I’m better off withdrawing this before I get 45 or 46 senators all of sudden voting the wrong way in the Senate.” We’re going to take credit for that. Whatever you say, you can’t take that credit away from us.
I can stand here and say it’s us. I can stand here and say it was Senator Wells’s speech or my speech that turned the tide, and we’ll take credit. We’re politicians. Justin Trudeau can come along and tell us why he actually did it. Until he does, we’ll take the credit, colleagues.
Having said that, thank you Senators Gold, Saint-Germain, Cordy and Tannas for your collaboration here today. I think it goes a long way in showing how we want to work together, but I do not want anybody to believe that for one second I accept what the Liberal Party of Canada and the government tried to do in that other place and, as a matter of fact, got away with it.
On that note, I do apologize to you, Senator Gold, that I cannot vote in favour. However, we will allow this to go on division.
Thank you very much, colleagues.
Senator Gold, do you have a question?
Would the senator take a question.
Certainly.
I’m going to frame this in the form of a question, though there is a comment buried in it, so I’ll try to use my skills. Senator Plett, we are all entitled to our beliefs as to what might have motivated the Prime Minister and the cabinet to conclude that the emergency was over. Would you not agree that the statements that I’ve made in this chamber and advice is equally, if not more, plausible, might I suggest, that in fact as I advised the chamber, that the government, having monitored on a regular basis the evolution of things, taking advice as it did from security and police experts and consultation with the cabinet, in fact, came to that conclusion that the emergency was no longer needed independent of the debate? And, in fact, I can say that the government remained confident that, in fact, the Senate would have ultimately approved it.
But would you not agree that that is a plausible explanation for why, as I had said, the government took the decision that it did?
Let me answer that this way, Senator Gold. I made a speech in the Senate that was one hour and 27 minutes long. When I was done, I walked upstairs, because I actually thought maybe I had earned a drink. I broke my doctor’s orders, as I thought I deserved something. As I was sitting in my office, after speaking here for one hour and 27 minutes, as I was sitting in my third-floor office, and as Senator Wells was here continuing the debate, that was when CBC mentioned that the Prime Minister was about to have a news conference. As I was sitting there enjoying my drink, his entourage, his protest, his convoy, drove by my window. The timing, Senator Gold, was impeccable.
Senator Gold, I have received no less than 8,000 messages, addressed to me personally, thanking the Conservative caucus for killing this. I will take their word.
Senator McPhedran, did you wish to ask a question or enter debate?
I wanted to ask Senator Plett if he would be willing to accept a question? Thank you.
On the theme of you don’t always get what you want, my question is: Do you interpret, in particular, Senator Gold’s reference to the former Minister Beatty, at the time of the act, and whether you interpret the current situation as excluding any possibility of an independent, non-affiliated senator to be considered for membership on this committee?
Senator McPhedran, I cannot possibly think that Perrin Beatty wanted anybody but Conservatives and Liberals on this committee ever, regardless of what has been said here. So as I said, we all have opinions, and the rights to them. As I said in my speech, and I was quoting somebody, but I will defend to the death your right to have that opinion. I have mine.
Are honourable senators ready for the question?
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
(Motion as modified agreed to, on division.)
