Greg DelBigio

Title
Counsel
Organization / Affiliation
Criminal Lawyers’ Association / Canadian Council of Criminal Defence Lawyers (CLA/CCCDL)

Greg DelBigio spoke 40 times across 3 days of testimony.

  1. Greg DelBigio, Counsel (CLA/CCCDL)

    Yes, Mr. Commissioner, my name is Greg DelBigio. On behalf of the Canadian Council of Criminal Defence Lawyers, the CCCDL, and the Criminal Lawyers Association, the CLA, my co-counsel, Collen McKeown and I are pleased to have the opportunity to participate in this Commission. The CCCDL is a national council made up of senior criminal defence lawyers. The council has existed since 1992 and has representatives in every province and in Nunavut. The purpose of the CCCDL is to enhance, support and improve criminal justice throughout Canada. The Criminal Lawyers Association has existed since 1971 and serves as the voice of criminal defence lawyers in Ontario and has over 1800 members in Ontario, across Canada and the United States. The CLA aims to educate, promote and represent its membership on criminal law and constitutional law issues impacting defence lawyers and clients. Together, the CCCDL and CLA have experience and expertise in bringing close scrutiny to the justification and use of government and police powers. The Emergencies Act should be used sparingly, or as a last resort, and only where credible evidence justifies its use. The public's confidence and trust in the fair and proper administration of law demands this. During the evidence portion of the Commission, the CCCDL and CLA hope to assist the Commission in understanding those facts which served as foundations for the important decisions that were made by police and elected officials and in understanding the ways in which those decisions considered and impacted the interests and protected rights of individuals. The evidentiary portion is important for transparency and accountability, and for ensuring that the use of the Emergencies Act was consistent with the maintenance, the rule of law, and the Charter of Rights. We are also eager to participate in the policy portion of the Commission because beyond the specifics of this particular use of the Emergencies Act, it is important that policy issues be considered, so that the balance between the exercise of government power, the exercise of police powers and protected individual rights can be considered from a broader, national perspective, and where necessary, improved. Thank you.

    01-055-12

  2. Greg DelBigio, Counsel (CLA/CCCDL)

    Minister, my name is Greg DelBibio. I'm one of the lawyers representing the Criminal Lawyer's Association and the Canadian Council of Criminal Defence Lawyers. You have testified that, in your view, reliance upon the Emergencies Act was a matter of last resort, and I'm going to pick up on that theme; okay? When Commission Counsel asked you questions, which now probably feels like some time ago, he asked you questions about why there was -- about mistrust between, as I understood it, police agencies. He used the phrase ships passing in the night. He in a question suggests there was confusion and disagreement about what -- who goes where and does what. Your answer to that was in reference to governance. But my question is, as you look back today, to what extent do you believe that better communications or effective communications between police agencies and within police agencies might have avoided the need for resort upon the Emergencies Act?

    27-330-09

  3. Greg DelBigio, Counsel (CLA/CCCDL)

    You looked at the Emergencies Act because circumstances pushed it onto your plate, and you had to deal with it?

    27-331-19

  4. Greg DelBigio, Counsel (CLA/CCCDL)

    And finally, Minister, when you testified that -- about your belief that the Emergencies Act is a matter of last resort, that's not just a personal preference you're expressing. That's your belief with respect to what the law requires; right?

    27-332-09

  5. Greg DelBigio, Counsel (CLA/CCCDL)

    Thank you. Those are my questions.

    27-332-21

  6. Greg DelBigio, Counsel (CLA/CCCDL)

    Prime Minister, my name is Greg DelBigio. I'm one of the lawyers representing two organisations, the Criminal Lawyers Association and the Canadian Counsel of Criminal Defence Lawyers. By way of overview, I'm going to ask you about the summary of the inputs and considerations that were available to you, a summary of police powers, and then I'm going to ask you -- I'll throw my final pitch. With respect to the factors that were taken into account, and this might not be a complete list, but will you agree that it was a situation that was dynamic?

    31-180-28

  7. Greg DelBigio, Counsel (CLA/CCCDL)

    It was a protest or occupation that was happening at one -- more than one location and in different provinces?

    31-181-12

  8. Greg DelBigio, Counsel (CLA/CCCDL)

    You had to take into account the scope of police powers as exist within the Criminal Code?

    31-181-16

  9. Greg DelBigio, Counsel (CLA/CCCDL)

    You had to take into account the adequacy of those police powers having regard to the circumstances that presented themselves?

    31-181-19

  10. Greg DelBigio, Counsel (CLA/CCCDL)

    You had to take into account resource issues, how many police officers are available, when, where, that kind of thing?

    31-181-23

  11. Greg DelBigio, Counsel (CLA/CCCDL)

    You had to take into account jurisdiction issues, and in particular, municipal, provincial, and federal?

    31-181-27

  12. Greg DelBigio, Counsel (CLA/CCCDL)

    With respect to inputs, you had input -- and when I say inputs, and that's information available to you or inputs as to whether or not to invoke the Act, you took into account information from Cabinet and colleagues?

    31-182-03

  13. Greg DelBigio, Counsel (CLA/CCCDL)

    From Opposition members?

    31-182-09

  14. Greg DelBigio, Counsel (CLA/CCCDL)

    From unelected officials and staff?

    31-182-11

  15. Greg DelBigio, Counsel (CLA/CCCDL)

    From premiers?

    31-182-14

  16. Greg DelBigio, Counsel (CLA/CCCDL)

    From citizens?

    31-182-16

  17. Greg DelBigio, Counsel (CLA/CCCDL)

    From police from different agencies?

    31-182-18

  18. Greg DelBigio, Counsel (CLA/CCCDL)

    You spoke to at least one U.S. official, President Biden, with respect to these issues?

    31-182-22

  19. Greg DelBigio, Counsel (CLA/CCCDL)

    And you took into account information from your legal advisors?

    31-182-25

  20. Greg DelBigio, Counsel (CLA/CCCDL)

    If you were to estimate, from the time that you first heard about the convoy and the occupation until the time that you invoked the emergency powers, how much time would you estimate that you spent on this issue?

    31-182-28

  21. Greg DelBigio, Counsel (CLA/CCCDL)

    You understood and understand today that the use of the Emergency Act is a matter of last resort?

    31-183-09

  22. Greg DelBigio, Counsel (CLA/CCCDL)

    With respect to police powers, you understand that the police have available to them, and again, I'll just do a catalogue of those powers, negotiation with respect to people?

    31-183-13

  23. Greg DelBigio, Counsel (CLA/CCCDL)

    Surveillance?

    31-183-18

  24. Greg DelBigio, Counsel (CLA/CCCDL)

    They can conduct undercover police operations?

    31-183-20

  25. Greg DelBigio, Counsel (CLA/CCCDL)

    And again, whether or not these were available in this particular circumstance is a different question, but just in terms of a general catalogue of police powers, police have available to them to apply for wiretaps?

    31-183-23

  26. Greg DelBigio, Counsel (CLA/CCCDL)

    And to apply for search warrants or production orders?

    31-184-01

  27. Greg DelBigio, Counsel (CLA/CCCDL)

    They can arrest and charge people with criminal offences?

    31-184-04

  28. Greg DelBigio, Counsel (CLA/CCCDL)

    And if people are arrested and charged, bail conditions can be placed on them such as the people not go to certain locations?

    31-184-07

  29. Greg DelBigio, Counsel (CLA/CCCDL)

    Good comment. Thank you. I accept that distinction. Were you ever presented -- there has been discussion about what information you have -- had with respect to an Operational Plan. Were you ever presented with a concrete and detailed plan showing how traditional police powers, such as those in the list that we just went through, would have worked having regard to all of the circumstances?

    31-184-12

  30. Greg DelBigio, Counsel (CLA/CCCDL)

    Finally, and I'm going to just give you a bit of a overview to my final question. You understand that public confidence in the exercise of extraordinary powers is important to maintenance of the rule of the law in Canada?

    31-184-23

  31. Greg DelBigio, Counsel (CLA/CCCDL)

    And you understand that the law properly recognises that privileges, such as solicitor/client privilege, is essential to the proper administration of justice?

    31-185-01

  32. Greg DelBigio, Counsel (CLA/CCCDL)

    You will understand that there's a tension between a privilege claim and transparency in the sense that privilege claims interfere with transparency?

    31-185-07

  33. Greg DelBigio, Counsel (CLA/CCCDL)

    Privilege claim such as if information is protected by solicitor/client privilege then it will not be made available to the public, won't be made available to people beyond you and your legal advisors.

    31-185-12

  34. Greg DelBigio, Counsel (CLA/CCCDL)

    You understand that the reliance upon the emergency powers has caused a significant division of opinion within Canada?

    31-185-17

  35. Greg DelBigio, Counsel (CLA/CCCDL)

    And here's the final question ---

    31-185-21

  36. Greg DelBigio, Counsel (CLA/CCCDL)

    This is the final one.

    31-185-25

  37. Greg DelBigio, Counsel (CLA/CCCDL)

    Fair enough.

    31-186-03

  38. Greg DelBigio, Counsel (CLA/CCCDL)

    Fair enough. And here's the final question. In light of the fact that privilege claims have been made with respect to some of the information that was available to you, and I want to emphasise that I'm not challenging those or suggesting they should not have been made, but in light of them, and the resulting -- and the result that there is certain information that is not available to the people who are listening to this Commission, what do you say to assure people that the emergency powers were properly invoked having regard to a full consideration of all options?

    31-186-06

  39. Greg DelBigio, Counsel (CLA/CCCDL)

    Thank you, Prime Minister.

    31-186-27

  40. Greg DelBigio, Counsel (CLA/CCCDL)

    The Criminal Lawyer’s Association and Canadian Council of Criminal Defence Lawyers appreciate the opportunity to have participated in this Commission. As criminal lawyers, we frequently scrutinize and challenge the exercise of power by government or law enforcement against individuals. We frequently defend guaranteed Charter rights of people within Canada as against the reach and sometimes overreach of state authority. Challenges to whether an arrest was lawful, whether a search warrant was lawful, whether a wire tap is lawful, are commonly conducted before the Courts. It might be of interest to people who’ve followed this Commission and those who are not lawyers to know that it’s not uncommon for there to be disagreement about the interpretation of laws, whether legal tests have been satisfied by evidence, or whether laws or actions of government actors were constitutional. In that way, it might be useful for people to understand that some of the disagreements that were revealed through these proceedings are not uncommon at all. The disclosure of thousands of documents and close forensic analysis of those documents reveals that protests were unquestionably challenging and demanded attention. It’s not surprising that there were disagreements with respect to how to deal with the protests or occupations. It’s not surprising that there was occasionally colourful and perhaps intemperate language revealed within some of the written communications. It's not surprising that various ideas were raised for consideration. That's the nature of a human process. These -- the determination about whether to invoke an Act such as this is inescapably a human process. The Commission evidence reveals what many lawyers already know, which is how a particular law is to be interpreted, and whether a particular legal test has been satisfied is often not straightforward. Uncertainty or disagreement about the interpretation of the law is common. This might be unfortunate because the rule of law and constraint on the exercise of government power is best achieved when the meaning and the scope of law is certain. However, the history of law shows that that is very difficult to achieve; therefore, what is important is that there be an impartial process for determining what the law means and whether the law has been complied with. This Commission, and the Commission evidence, has revealed the uncertainties surrounding interpretation of the Emergencies Act. A central question is whether the test within the Emergencies Act, the important test, that extraordinary powers only be used as a matter of last resort, was satisfied on the facts as presented themselves. Whether that test was satisfied or not, the Commission evidence revealed that an unquestionably challenging circumstance was responded to with focussed consideration from law enforcement, elected and unelected officials. There will be disagreement with respect to how that was done and whether it was done properly, but I think that people should be satisfied that it was done with care and with a serious deliberation. This Commission will need to -- now need to decide whether the invocation of the Act was appropriate. We look forward to submitting our written submissions to assist the Commission in making this determination. Thank you.

    31-240-13