Sujit Choudhry
Sujit Choudhry spoke 386 times across 11 days of testimony.
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Sujit Choudhry, Counsel (CCF)
Thank you. Good morning, Commissioner.
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Sujit Choudhry, Counsel (CCF)
My name is Sujit Choudhury. I am co-counsel for the Canadian Constitution Foundation. My co-counsel is Janani Shanmuganathan. and we are both on Zoom, although we do hope to attend some of the proceedings in person. As you indicated, Commissioner, the CCF has been granted standing jointly with Professor Alford. I would ask that -- we reserved a minute at the end of our remarks for him, and we would ask that you recognize him, please, when I conclude.
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Sujit Choudhry, Counsel (CCF)
Thank you, Commissioner. And we did check in with Commission Counsel before we decided to proceed this way, and so we appreciate your forbearance in this exceptional circumstance. Commissioner Rouleau, I have four points to make in my introductory remarks. The first is that I would like to introduce the CCF. The CCF is a legal charity which is dedicated to defending fundamental freedoms in Canada, particularly the freedom to think, believe, and express controversial or dissenting ideas and opinions. The CCF would like to publicly express its appreciation to you, Commissioner Rouleau, for granting it standing before the Commission. Second, the CCF sought standing to assist the Commission because it will address questions that are core to our mandate. The emergency proclamation and emergency measures regulations severely restricted the rights to freedom of expression, assembly, and association. The economic -- the emergency economic measures order chilled freedom of expression by deterring donations to organizations opposed to the public order emergency, such as the CCF. For the CCF, the fundamental question is whether the condition in the final clause of section 3 of the Emergencies Act was met, that the Ottawa protests and border blockades could not be effectively dealt with under any law -- any other law of Canada, federal, provincial, or municipal. This clause codifies the requirement that the Emergencies Act is a last resort, which can only be triggered when all other legal tools fall short. Third, although the Commission will necessarily focus on recent events, a sense of history should frame how it approaches this task. The Emergencies Act is a successor to the discredited War Measures Act, which was abused during the FLQ crisis in Quebec. The Emergencies Act, especially the last resort clause, was drafted to ensure that the Act could never be used by a federal government against its political opponents. For 34 years, the Emergencies Act was never used. The public order emergency of 2022 was a historic first, but now that the glass has been broken on the Act, it can be used again. The Act was used by this government against individuals protesting vaccine mandates, but a future government of a different political stripe could use the Act in response to protests against pipelines or climate change. When the Commission asks hard questions about the Act’s use in 2022, the Commission must also focus on the Act’s potential misuse in the future and protect the right to protest, parliamentary democracy, and federalism. And what the Commission says matters not just to Canada, but globally, where the use of emergency powers is on the rise. The world will be watching our work. Fourth, the CCF would like to thank Commissioner Rouleau, and Commission Counsel for taking on this enormous task of public service in an extremely tight timeline on an issue of singular and momentous significance to Canada. We look forward to assisting you in any way possible. Thank you.
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Sujit Choudhry, Counsel (CCF)
Thank you. Mayor Watson, can you hear me?
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Sujit Choudhry, Counsel (CCF)
Good afternoon. My name is Sujit Choudhry. I'm counsel for the CCF. We just have a few minutes, and I know it's been a long day for you, so I have a number of quick factual questions I hope you can answer.
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Sujit Choudhry, Counsel (CCF)
So did you ever request Prime Minister Trudeau to invoke the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
Did you ever request Minister Mendicino to invoke the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
Did you request Minister Blair to invoke the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
At the time, were you familiar with what was contained in Ontario's Emergency Management and Civil Protection Act?
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Sujit Choudhry, Counsel (CCF)
Did you ever discuss the Act? Pardon me, sir.
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Sujit Choudhry, Counsel (CCF)
Yeah, or with the Solicitor General.
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Sujit Choudhry, Counsel (CCF)
So you never requested that the premier declare an emergency under that Act?
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Sujit Choudhry, Counsel (CCF)
So Mayor Watson, are you aware that under that law, once the premier declares an emergency, the premier can issue an order to regulate or prohibit travel or movement to, from, or within any specified area?
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Sujit Choudhry, Counsel (CCF)
Or that the premier can issue an order to evacuate individuals or remove personal property from any specified area?
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Sujit Choudhry, Counsel (CCF)
Okay. Good. Mayor Watson, those conclude my questions. Commissioner, thank you very much.
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Sujit Choudhry, Counsel (CCF)
Commissioner, good afternoon. It’s been a long day, and so I’m going to try to make my questions very brief.
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Sujit Choudhry, Counsel (CCF)
So I’d like ---
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Sujit Choudhry, Counsel (CCF)
Excuse me.
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Sujit Choudhry, Counsel (CCF)
My name is Sujit Choudhry. I am counsel for the CCF.
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Sujit Choudhry, Counsel (CCF)
And so I’d first like to begin by confirming some testimony you provided this morning while being examined by my friend, Mr. Brosseau. And I believe you said the following: “If the request came under the Police Services Act to take over policing in Ottawa, the OPP would have been absolutely willing to move forward and fulfil our responsibilities.” (As read) Did you say that or words to that effect?
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Sujit Choudhry, Counsel (CCF)
So I’d like to ask you some questions about the legal mechanics whereby that would have occurred. And so if I could ask the clerk to please turn up Commissioner Carrique’s witness interview summary, which is WTS00000039? And if we could go to page 3, please? Id like to -- if you could just scroll up a little bit more? That’s great. So, Commissioner Carrique, I’d like to take you to the paragraph that begins “There are a limited number of ways…”
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Sujit Choudhry, Counsel (CCF)
And so would you agree that in that paragraph, you state that there are three ways in which the OPP could have taken over policing in Ottawa? One is by the Ontario Civilian Police Commission to direct it to do so, the second is on the request of the Crown Attorney, and the third is on a request from the Police Services Board or the Chief of Police?
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Sujit Choudhry, Counsel (CCF)
Good. So I’d like to focus on the first of those mechanisms, if we may. So can we please call up CCF, and I think it’s 00000011. And I’d like to go to page 15. This is the Police Services Act, sir, which I’m sure you’re familiar with?
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Sujit Choudhry, Counsel (CCF)
So if we could go to page 15, please? Thank you. So this is section 9 that we’ve spent a bit of time on today. What I’d like to take you to is subsection 2. And would you agree that subsection 2 says that if the Commission were to find that the OPS was not providing adequate and effective police services, it would have first communicated this finding to the OPS Board and directed the OPS Board to take necessary measures?
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Sujit Choudhry, Counsel (CCF)
And then after that, subsection 3 provides if the Board does not comply with the direction the Commission may request that the Commissioner have the OPP give assistance?
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Sujit Choudhry, Counsel (CCF)
Thank you. And the word “assistance” isn’t defined in the statute? Would you agree?
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Sujit Choudhry, Counsel (CCF)
Well that’s an interesting question. But in this statute, it’s not. But you’re interpreting “assistance” to include a take-over? Is that right?
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Sujit Choudhry, Counsel (CCF)
But it could include a takeover?
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Sujit Choudhry, Counsel (CCF)
So I’d like to talk a bit about the Commission, because it’s -- you know, it’s a bit of a mysterious body. Could we go to page -- could we go, please, to section 22? So, Commissioner, on this page and the next page, we have a list of the Commission’s responsibilities. I’m assuming you’re familiar with this provision?
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Sujit Choudhry, Counsel (CCF)
And so, just for the sake of time, I was wondering if we could please call up CCF00000041? And so, Commissioner, this is a print out, or a PDF about -- pardon me, can you just go up -- regarding the Ontario Civilian Police Commission that’s on the Public Appointment Secretariat ---
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Sujit Choudhry, Counsel (CCF)
--- website. And if you could scroll down, please? There. If you could stop there? I’d just ask you to read to yourself how it describes the function of the agency.
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Sujit Choudhry, Counsel (CCF)
Continue to the next page, please. you can stop at the end of this top paragraph.
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Sujit Choudhry, Counsel (CCF)
So would you agree with the following, that the Commission’s mandate is mainly to conduct investigations and inquiries into the conduct of Chiefs of Police, police officers, and members of the Police Service Boards, and to hear appeals on police discipline?
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Sujit Choudhry, Counsel (CCF)
And would you agree that the Commission’s mandate is very different than that of a municipal police board?
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Sujit Choudhry, Counsel (CCF)
Such as the OPS Board. So the OPS Board has responsibility for recruiting and appointing and directing a Chief of Police, but the Commission doesn’t have that role in respect to you; does it?
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Sujit Choudhry, Counsel (CCF)
And the OPS Board establishes objectives, priorities, and policies of the OPS, but the Commission doesn’t have that role in respect of the OPP; does it?
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Sujit Choudhry, Counsel (CCF)
So it’s not a police-wide -- it’s not a province-wide police board; is it?
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Sujit Choudhry, Counsel (CCF)
And so it’s correct that you wouldn’t have had reason to brief the Commission on a daily basis about the Ottawa protest; would you have?
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Sujit Choudhry, Counsel (CCF)
Okay. Well then let me ask you this question. So as a practical matter, under section 9.2 and 9.3, for the Commission to exercise its power to provide direction to the OPS Board and then request you to take over or assume responsibility for policing in Ottawa, if you don’t interact with the Commission, and if it’s not a police board, how does it make that decision? Would you have to recommend to it that it take that decision? Or would the Deputy Solicitor General have to recommend to the Commission that it take that step?
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Sujit Choudhry, Counsel (CCF)
So you didn’t make that recommendation to the Commission; did you?
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Sujit Choudhry, Counsel (CCF)
Okay.
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Sujit Choudhry, Counsel (CCF)
Thank you. Commissioner, can I ask the Commissioner a couple of questions about Ontario’s emergency legislation or are we out of time?
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Sujit Choudhry, Counsel (CCF)
Okay. So could we quickly turn to CCF00000038, please? And so Commissioner, I take it you're familiar with the Emergency Management and Civil Protection Act?
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Sujit Choudhry, Counsel (CCF)
Could we go to pages -- to the bottom of page 6, please? And so I'd like to direct you to subsection 4 at the bottom of page 6 here of section 7.02. Maybe you could scroll up just a little bit so the Commissioner can see the beginning of this. So this is -- these are emergency powers that are vested in the Provincial Cabinet in the event of a state of emergency. So could we please go down to the bottom of this page. If you could stop there. Would you agree that under a provincial state of emergency the Provincial Cabinet can make an order regulating or prohibiting travel or movement to, from, or within any specified area in Ontario?
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Sujit Choudhry, Counsel (CCF)
That's subsection -- that's Roman 2 under subsection 4. The very last line on that page.
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Sujit Choudhry, Counsel (CCF)
Thank you. Could we go to the next page, please, and stop there. Could you please look at Roman 4? Will you agree that the Provincial Government, pardon me... Roman -- excuse me. Roman -- pardon me, point 3. Will you agree that the Provincial Cabinet could evacuate individuals and remove personal property from any specified area in the province under a state of emergency?
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Sujit Choudhry, Counsel (CCF)
Yes. And so do you agree that pursuant to this statute, the Provincial Cabinet could have created a red zone around Parliament Hill?
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Sujit Choudhry, Counsel (CCF)
And would you agree that under these provisions the Premier, pardon me, the Cabinet could have restricted the movement of heavy trucks into Downtown Ottawa?
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Sujit Choudhry, Counsel (CCF)
Those conclude my questions. Thank you.
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Sujit Choudhry, Counsel (CCF)
Mr. Sloly, good afternoon. My name is Sujit Choudhry. I am counsel for the CCF. I’d like to begin my questions to you by returning to the theme of your conversation with my friend, Ms. Nygard, from the Government of Canada. And I think that -- my recollection is that you agreed with her that there was no need for the OPS or, for that matter, for the City of Ottawa, so reach out to the OPP or the province first before going to the RCMP for assistance. It was perfectly appropriate for the OPS to go to the RCMP directly in parallel with outreach to the OPP because Ottawa is the seat of the federal government and of federal institutions.
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Sujit Choudhry, Counsel (CCF)
Good. So let me take you back to when you dramatically increased your request for resources. And I’m speaking here of the February 7th letters, one sent to the province, one sent to the federal government. I’d like to focus on the federal letter, if I may. So it was a letter from Chair Deans and Mayor Watson to Prime Minister Trudeau and Minister Mendicino. And I won’t call it up because we’ve seen it a number of times, but it’s true -- is it true that in that letter, that was based on your advice that a request was made for a total of 1,800 additional officers from other police forces in Canada?
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Sujit Choudhry, Counsel (CCF)
And is it true approximately that about one-third of that number was to come from each of the RCMP, the OPP and other municipal forces?
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Sujit Choudhry, Counsel (CCF)
But you ---
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Sujit Choudhry, Counsel (CCF)
But you know Mayor Watson put it that way to Prime Minister Trudeau.
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Sujit Choudhry, Counsel (CCF)
No, in a phone call with him.
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Sujit Choudhry, Counsel (CCF)
Well -- and so how many RCMP officers did you wish to be deployed from that 1,800?
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Sujit Choudhry, Counsel (CCF)
Okay. So Commissioner, I’d seek leave to put -- to pull up the interview summary for Minister Bill Blair and to show it to Mr. Sloly, if I may.
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Sujit Choudhry, Counsel (CCF)
Sure. So this is -- Mr. Registrar, this is witness summary 48. And could you please go to page 5? And so let’s just stop there. So Mr. Sloly, I take it you’ve never seen this document.
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Sujit Choudhry, Counsel (CCF)
So we’re going to take a little bit of time to let you read a couple of passages. So the first passage I’d like to direct you to is the paragraph that states, “Minister Blair explained there were two problems with the Mayor’s request for resources”. And then in the next paragraph, I’ll summarize for you, he speaks to the issue of a -- of planning and the need for a comprehensive plan in order for the OPS to receive assistance from the OPP and RCMP. That’s not what I want to focus you on. It’s the next paragraph. So if you could scroll up, please, to the ---
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Sujit Choudhry, Counsel (CCF)
Sorry. Go ahead, sir.
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Sujit Choudhry, Counsel (CCF)
Sir, please, go ahead.
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
Well, I’m just summarizing that one paragraph, but I want to ask you questions about the following paragraph.
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Sujit Choudhry, Counsel (CCF)
Well, why don’t you read these two paragraphs and I’d like to ask you about the second.
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Sujit Choudhry, Counsel (CCF)
So I want to ask you some questions about that second paragraph.
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Sujit Choudhry, Counsel (CCF)
So Minister Blair, would you agree that in that paragraph he makes two points? First, that in his view, the OPS was required to go to the OPP first before requesting assistance from the RCMP. And second, that the Police Services Act requires the OPS to go to the OPP first before going to the RCMP.
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Sujit Choudhry, Counsel (CCF)
So do you agree that that’s what he says?
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Sujit Choudhry, Counsel (CCF)
Okay. Well, I want to -- I want to ask you some questions about that. So before we get there, I want to talk about and ask you some questions about the tripartite meetings that took place on February 7th, 8th and 10th. And if -- you were at two of those meetings, February 7th where you came a little bit late, and February 8th.
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Sujit Choudhry, Counsel (CCF)
So Mr. Sloly, I’m sorry. In the course of the Commission’s work we’ve referred to three of those meetings, 7th, 8th and 10th, so let me focus your attention on those three or ---
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Sujit Choudhry, Counsel (CCF)
--- those two.
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Sujit Choudhry, Counsel (CCF)
Sure. So let’s go to -- if we could -- Mr. Registrar, if we could please call up the readout for the February 7th meeting. And the document is PB.NSC.CAN.2335. Good. So Mr. Sloly, have you seen this document before?
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Sujit Choudhry, Counsel (CCF)
If you could scroll down, please.
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Sujit Choudhry, Counsel (CCF)
Okay. So this is a readout from this call. If you go down to page 4, please. Just go back up a bit. And so here is an exchange between Minister Blair, BB, and you. And I just want to focus on the last exchange here.
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Sujit Choudhry, Counsel (CCF)
So the -- we’ve been told that this is readout from a call that took place on February 7th.
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Sujit Choudhry, Counsel (CCF)
Correct.
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Sujit Choudhry, Counsel (CCF)
Well, let me ask you what -- you know, a question based on this evidence.
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Sujit Choudhry, Counsel (CCF)
And so -- and so there’s an exchange here at the end where you discuss how you’ve -- you know, you have great respect for former Chief, now Minister Blair, and Minister Blair says: “We are working to provide the City with the resources you require. That is our sole intent. There will be follow-up conversations. We will be here for you.” I take it you don’t recall that exchange.
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Sujit Choudhry, Counsel (CCF)
What date was that?
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Sujit Choudhry, Counsel (CCF)
Okay. Well, I want to -- let’s get to that in a minute. So -- but would you agree here that in this record of this exchange you had with Minister Blair, he didn't raise with you the concern that the request was somehow problematic because you had not gone to the OPP first or you hadn't complied with the Police Services Act.
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Sujit Choudhry, Counsel (CCF)
Okay. And so ---
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Sujit Choudhry, Counsel (CCF)
And, Mr. Sloly, I'll ask you to come back to that in just a minute. Mr. Registrar, could you please take us to the read-up from the February 8th tripartite meeting, and the document number is SSM.NSC.CAN.2052. And so, Mr. Sloly, you would recall participating in this call. I imagine there were hundreds of calls, so probably not.
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Sujit Choudhry, Counsel (CCF)
Could you scroll down a bit, please?
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Sujit Choudhry, Counsel (CCF)
Oh, I think we might have the wrong document. Give me a second, please. And I apologize, Mr. Registrar. Give me one second. Commissioner, I have a request. When are we due for a break? Because it might be helpful if I could pull up these notes correctly. I apologize for having given the wrong document ID to the Registrar.
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Sujit Choudhry, Counsel (CCF)
Yes, it is. You have it. Thank you.
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Sujit Choudhry, Counsel (CCF)
Yes, we have. So if you could scroll down to -- so this is another read-out, Mr. Sloly, and if you could scroll down, please, to page 4? The participants in this call were yourself, BB, who's Minister Blair, MM, who's Minister Mendocino and others. And I'd like to take you to the last exchange between yourself and Minister Blair where it begins, "On the RCMP, only 20 have been sworn in. The rest are with Rideau Cottage...", which of course refers to where the Prime Minister's residence is, "and the precinct", which I assume refers to the Parliament precinct. "I need more." And then Minister Blair says, "For how long are you asking resources?" And then it's not attributed to you, but I think it's reasonable to infer that the five to seven days answer came from you.
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Sujit Choudhry, Counsel (CCF)
You wouldn't have?
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Sujit Choudhry, Counsel (CCF)
But you do -- but you would agree that these notes state that you said we need more RCMP officers, only 20 have been sworn in.
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Sujit Choudhry, Counsel (CCF)
Okay.
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Sujit Choudhry, Counsel (CCF)
And you'll agree that, so when Minister Blair asked you for how long are you asking resources, he did not raise with you the concern that you were going to the RCMP first, or not going to the OPP first, and you were not complying with the Police Services Act?
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Sujit Choudhry, Counsel (CCF)
Of course.
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Sujit Choudhry, Counsel (CCF)
Of course, Mr. Sloly, and we're doing our best here given the limited time we have available to you. Mr. Sloly, you referred to a third conversation you had ---
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Sujit Choudhry, Counsel (CCF)
--- with Minister Blair. Would you be able to tell us a bit about that conversation on these themes?
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Sujit Choudhry, Counsel (CCF)
But he -- so he never raised these procedural objections that he appears to be raising?
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Sujit Choudhry, Counsel (CCF)
So, Mr. Sloly, how long have you been or were you a police officer in Ontario?
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Sujit Choudhry, Counsel (CCF)
And so you're familiar with the Police Services Act?
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Sujit Choudhry, Counsel (CCF)
And is there any provision in Section 9 of the Police Services Act that requires a municipal Chief of the Police to go first to the OPP before seeking assistance from the RCMP?
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Sujit Choudhry, Counsel (CCF)
And, Mr. Sloly, RCMP officers can be sworn in as special constables ---
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Sujit Choudhry, Counsel (CCF)
--- pursuant to Section 53(1) of the Police Services Act.
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Sujit Choudhry, Counsel (CCF)
And as far as you know, there's no condition for swearing in an RCMP officer as a special constable, that a request must first be made to the OPP?
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Sujit Choudhry, Counsel (CCF)
And so -- and now, Mr. Sloly, if we had more time, I would take you to the RCMP Act, but I'd put it to you that there is no provision of the RCMP Act that requires a local police force to go first to a provincial police force, if there is one?
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Sujit Choudhry, Counsel (CCF)
And so would you say, Mr. Sloly, that at best, so there is no federal or provincial law, there's no RCMP policy, there's no OPP policy that required the OPS to go to the OPP first.
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Sujit Choudhry, Counsel (CCF)
And, Mr. Sloly, do you wish that these concerns about procedure had been raised with you at the time so you could have responded to them?
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Sujit Choudhry, Counsel (CCF)
Thank you, Mr. Sloly.
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Sujit Choudhry, Counsel (CCF)
Mr. Freeman, good afternoon. My name is Sujit Choudhry. I’m with the CCF. I have some questions for you about tow trucks ---
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Sujit Choudhry, Counsel (CCF)
--- and the legal tools to compel the provision of tow truck services. So I’d first ask the Registrar to put up the Emergency Measures Regulations under the Emergencies Act. And I have a document code for that, although I imagine it would be on speed dial here. But it’s SSM.CAN.00001911_REL.0001. So while we’re waiting for it to come up, I take it you’re familiar with the Emergency Measures Regulations?
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Sujit Choudhry, Counsel (CCF)
You referred to them in an answer to a question posed by my friend from the Commission though?
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Sujit Choudhry, Counsel (CCF)
So can we go to page 8, please? So if we could just scroll down, please, Registrar -- Mr. Registrar, to 7(1)? That’s good. So would you agree -- if you could have a look at section 7(1)? Have you seen that section before?
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Sujit Choudhry, Counsel (CCF)
Okay. So we’re going to read that section 7(1) and in substance says that a person must make available and provide tow truck services if requested by the Minister of Public Safety and Emergency Preparedness, or the RCMP Commissioner, or a designate; correct?
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Sujit Choudhry, Counsel (CCF)
Good. Okay. So can we go down then to the next page, please? To 10(2). And so could you just have a look at that, please? Have you seen this provision before?
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Sujit Choudhry, Counsel (CCF)
So would you agree that in substance, section 10(2) provides that it creates a criminal offence for failure to comply with the Emergency Measures Regulations, including the provision we just looked at together, section 7(1) in relation to tow trucks?
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Sujit Choudhry, Counsel (CCF)
Good. And there’s sanctions involving both fines and imprisonment under both summary and indictment?
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Sujit Choudhry, Counsel (CCF)
Good. All right. Now, I’d like to take you to the HTA, if I could. And so this document, Mr. Registrar, is CCF00000, I believe, yes, wait, 00000010. And while we’re waiting for it to come up, Mr. Freeman, you stated in your evidence this morning, or earlier today, I should say, that the HTA is a key Act, is that right, for the MTO?
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Sujit Choudhry, Counsel (CCF)
And so you’re familiar with it?
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Sujit Choudhry, Counsel (CCF)
Well we’re going to take you to section 171. So this is on page 361, please. If we could scroll down just a bit? Okay. So if we could stop there? So this section is entitled “Tow truck services”. Are you familiar with this section?
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Sujit Choudhry, Counsel (CCF)
Okay. So I’d like to ask you a question that’s about section (3.1), which is on the next page. Let’s stop there. So this says -- so the title for this subsection is “Other prohibited activities”. And it says: “No driver of a tow truck, or other person who is in charge of a tow truck, shall engage in an activity prohibited by regulation…” Is that right?
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Sujit Choudhry, Counsel (CCF)
Good. Okay. Now let’s go down a bit further to (6). Stop there, please. And so (6) says that the Lieutenant Governor in Council, or the Provincial Cabinet, has the power, under (b) to prescribe prohibited activities for the purposes of (3.1). Is that right?
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Sujit Choudhry, Counsel (CCF)
And that seems to be quite a broad grant of authority to the Provincial Cabinet; correct?
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Sujit Choudhry, Counsel (CCF)
But it says -- it doesn’t say what’s sort of activities can be prescribed? It just says “prescribed activities”.
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Sujit Choudhry, Counsel (CCF)
Correct. Correct.
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Sujit Choudhry, Counsel (CCF)
Okay. So ---
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Sujit Choudhry, Counsel (CCF)
Okay. And then let’s go up a little. I promise you this is the last subsection we’ll look at together. So if you could scroll up, please, Mr. Registrar, to (4)? This provision is entitled “offence”. It creates a provincial offence for breaching any provision in this section, which would include, of course, any regulation enacted pursuant to subsection (3.1); correct?
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Sujit Choudhry, Counsel (CCF)
So, Mr. Freeman, I’d like to ask you this. Would you agree that under section 171, at any time the Ontario Cabinet could have made it a regulation that a tow truck driver cannot deny a tow truck services if requested by a suitable public official? So a municipal chief of police, the OPP Commissioner, or the head of the RCMP?
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Sujit Choudhry, Counsel (CCF)
So Mr. Freeman, I’m going to press you on this a bit. I put it to you that this is the only section in the HTA governing tow trucks and that the -- that under this section, the provincial Cabinet can prescribe conduct by tow truck drivers, and that it’s an offense if a tow truck driver breaches that requirement.
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Sujit Choudhry, Counsel (CCF)
So Mr. Freeman, I’ll conclude on this note, then: If in fact the provincial Cabinet could have passed a regulation requiring that a tow truck driver provide a service, and making it an offence to not do so, would that not, in substance, had been the same as the corresponding provision in the Emergency Measures Regulation?
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Sujit Choudhry, Counsel (CCF)
Good, thank you.
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Sujit Choudhry, Counsel (CCF)
Good evening, Mr. Di Tommaso. My name is Sujit Choudhry. I am counsel for the Canadian Constitution Foundation. I'd like to pick up on a line of questions that my friend, Ms. Rodriguez led, regarding intergovernmental processes for coordinating federal, provincial and municipal responses to the convoy. And I want to put it to you that the reason why she spent so much time on that theme and why I'd like to go back to that theme is that that issue goes to the very heart of this Commission's mandate. And so, sir, do you know that the Emergencies Act is a last resort?
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Sujit Choudhry, Counsel (CCF)
And that the last resort requirement is actually a legal condition for the Federal Cabinet to declare a Public Order Emergency?
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Sujit Choudhry, Counsel (CCF)
And so -- and isn't it true then if the Act is meant to be a last resort, municipal, provincial and federal legal tools have to somehow fall short?
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Sujit Choudhry, Counsel (CCF)
But are you prepared to answer this question, that sometimes for tools in the hands of one government to be effective, those governments must cooperate to use their tools together?
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Sujit Choudhry, Counsel (CCF)
Well, let's talk about this convoy. And so what we're trying to understand here in this Commission is whether these intergovernmental processes to get governments to work together, to use the different tools they have worked or didn't work, and that's why we want to learn about these meetings and these conversations that you had. So it's true that you had many conversations with representatives of different levels of government; isn't it?
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Sujit Choudhry, Counsel (CCF)
And it's true that you participated in a February 6th meeting?
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Sujit Choudhry, Counsel (CCF)
And other meetings?
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Sujit Choudhry, Counsel (CCF)
And so and is it true that your role in these meetings, and I'm quoting them here, was to receive information ---
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Sujit Choudhry, Counsel (CCF)
--- and to put forward possible solutions to the blockade in Windsor and the occupation in Ottawa that could be achieved or facilitated by Ontario?
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Sujit Choudhry, Counsel (CCF)
So you were on those calls and at those meetings to see how Ontario could help?
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Sujit Choudhry, Counsel (CCF)
And so -- and would you also agree that one of the fundamental purposes of those calls and those meetings was that every level of government had different information, and the purpose of conversation and communication was that no one government had the complete picture, but only by discussing with each other and exchanging information could the complete picture come into focus.
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Sujit Choudhry, Counsel (CCF)
And so -- and then with the complete picture in hand, governments could connect the dots between problems and issues on the one hand and solutions on the other.
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Sujit Choudhry, Counsel (CCF)
Including solutions that could be achieved or facilitated by the province of Ontario.
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Sujit Choudhry, Counsel (CCF)
Well, let's talk about the tripartite meetings because that's where I'm going to. So we've -- there've been a number of questions put to you about the tripartite meetings at the most senior political levels, although there were deputy level civil servants there ---
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Sujit Choudhry, Counsel (CCF)
--- that took place on February 7th, 8th, and 10th. And I'd like to call up, if Mr. Registrar, if you would SSM.NSC.CAN.00002052_REL.001, or that -- those are the -- that's the read out from the February 8th tripartite call. So, sir, so you’ve been asked questions about these notes before. I’d like to take you to two parts of the notes for this call, the read out. So Chief Sloly participated in this call. And so if we could go, please, Mr. Registrar, to the bottom of page 2? Stop there. And so, sir, do you see there a question posed by MM, that’s Minister Mendicino, saying: “Do you see wellington redzone being tackled within 2-3 days?” And then Chief Slowly responds. And so there’s a reference there to a Wellington red zone. So I’d put it to you that that is a no-go zone on Wellington Street that Chief Sloly was proposing?
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Sujit Choudhry, Counsel (CCF)
Okay. But what do you think the term red zone means on Wellington in the context of the protests that were taking place in Ottawa?
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Sujit Choudhry, Counsel (CCF)
Okay.
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Sujit Choudhry, Counsel (CCF)
Sure. But if you had been at the meeting, you might have known to ask; correct?
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Sujit Choudhry, Counsel (CCF)
But Minister Jones ---
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Sujit Choudhry, Counsel (CCF)
--- was invited to the meeting. If she had been at the meeting, she would have known to ask; correct?
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Sujit Choudhry, Counsel (CCF)
Let’s go down to the next page. So three quarters of the way down, if you could go down a little bit more, there’s in bold there, under the long paragraph from Chief Sloly, a reference to an impound zone. Now, sir, what do you think an impound zone refers to?
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Sujit Choudhry, Counsel (CCF)
Good. So now in your -- you said that prior to the February 6th call, you familiarized yourself with the Emergency Management and Civil Protection Act; correct?
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Sujit Choudhry, Counsel (CCF)
And so you said in your interview summary that the City of Ottawa did not make a formal request for Premier Ford to declare a Provincial State of Emergency? Is that right?
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Sujit Choudhry, Counsel (CCF)
But isn’t it true that no such request by a mayor is required, as a matter of law, under the EMCPA for the Premier to declare a State of Emergency in any city in this province?
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Sujit Choudhry, Counsel (CCF)
So are you aware that under the EMCPA, the Provincial Cabinet, once a State of Emergency has been declared, can regulate or prohibit travel or movement to, from or within, any specified area?
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Sujit Choudhry, Counsel (CCF)
And are you aware they -- the Provincial Cabinet can evacuate individuals and remove personal property from any specified area?
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Sujit Choudhry, Counsel (CCF)
And why is that?
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Sujit Choudhry, Counsel (CCF)
Sure. So it’s -- so, Mr. Registrar, it’s CCF00000038. And it’s page 7. Mr. Di Tommaso, I believe you’re referring to point three at the top of the page there?
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Sujit Choudhry, Counsel (CCF)
And could you please elaborate on your answer?
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Sujit Choudhry, Counsel (CCF)
Interesting.
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Sujit Choudhry, Counsel (CCF)
So you don’t think it would extend to removing individuals and their personal effects of an area?
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Sujit Choudhry, Counsel (CCF)
Well ---
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Sujit Choudhry, Counsel (CCF)
Mr. Di Tommaso, would you agree that when the Provincial Cabinet exercises its powers under this provision of the EMCPA, it’s not trenching on the authority of the OPP or the OPS over policing?
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Sujit Choudhry, Counsel (CCF)
And would you agree that the Provincial Cabinet could have used these powers to create a red zone on Wellington?
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Sujit Choudhry, Counsel (CCF)
A zone in which there could be no vehicles illegally parked and which all vehicles would be cleared, and where no persons could go?
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Sujit Choudhry, Counsel (CCF)
But what -- do you agree that it could have been done by the Provincial Cabinet?
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Sujit Choudhry, Counsel (CCF)
The red zone, sir, was created by the Emergency Measures Regulation under the Emergencies Act.
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Sujit Choudhry, Counsel (CCF)
Well let’s -- we’ll return to that. Would you agree that the Provincial Cabinet could have used these powers to create an impound zone?
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Sujit Choudhry, Counsel (CCF)
So Mr. Di Tommaso, Minister Jones was not on the call on February 8th when the Wellington red zone and the impound zone were presented for discussion at this intergovernmental table; was she?
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Sujit Choudhry, Counsel (CCF)
And had she been on that call on February 8th, isn’t it reasonable to conclude that she would have connected the dots between the red zone and the impound zone and the powers that the Provincial Cabinet would have if it had declared a State of Emergency under provincial law?
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Sujit Choudhry, Counsel (CCF)
That wasn’t my question. Had she been on that call on February 8th, would she have connected the dots between the problem that was at hand and the tools in the -- within the jurisdiction of the Province?
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Sujit Choudhry, Counsel (CCF)
And Mr. Di Tommaso, there were deputies on that call.
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Sujit Choudhry, Counsel (CCF)
If you had been asked to attend that call and you had been there to receive Chief Sloly’s ideas, and would you have connected the dots between what he was proposing in terms of a red zone and an impound zone, and the potential to use the Province’s emergency powers to implement those proposals?
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Sujit Choudhry, Counsel (CCF)
I was asking about you, sir. Did you ever make that recommendation to Minister Jones to create those zones yourself? Yes or no?
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Sujit Choudhry, Counsel (CCF)
But did you ---
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Sujit Choudhry, Counsel (CCF)
--- recommend ---
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Sujit Choudhry, Counsel (CCF)
Mr. Commissioner, I think we're done here.
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Sujit Choudhry, Counsel (CCF)
Thank you.
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Sujit Choudhry, Counsel (CCF)
If you could please pull up SSM.CAN.00001911_Rel.0001?
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Sujit Choudhry, Counsel (CCF)
Good morning.
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Sujit Choudhry, Counsel (CCF)
Hi. My name is -- actually, good afternoon. My name is Sujit Choudhry and I’m counsel for the CCF, for the record. So Ms. Jacques, I want to take you to the issue of the freezing the accounts. I know that we’ve talked a lot about that today. And I want to invite you to answer some questions about lessons learned from that process and experience, which I take it was fairly unprecedented in Canadian history, because part of the Commissioner’s mandate is to advise governments in the future about how to -- if and how to use these tools and how they might be adjusted. So if we could just do that for a minute? So you’ve heard that for some individuals, and we’ve had testimony to that effect, that because their accounts were frozen, they weren’t able to meet their basic necessities. It might be child support, rent, food. In one case, we had a witness testify that he couldn’t buy heart medication for his son. And I think we can all agree that was not the intent of the order. And so I want to put to you this question that you’ve said, “Listen, whatever the order said on its face, when we provided advice to financial institutions about how to administer it, we asked that they use discretion.” But wouldn’t it have been better to put humanitarian exception into the terms of the order itself to ensure there was crystal clarity, not just to those institutions, but to members of the public who could have looked at the order online, but would not have had access to that advice provided to banks and credit unions, that in fact they had that right to obtain monies that they needed to make -- to obtain monies that they required to meet their basic needs?
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Sujit Choudhry, Counsel (CCF)
Thank you. And maybe a broader question on the same theme, or on a related theme, to the panel as a whole, which is about consumer credit. And so I think the panel would agree that credit histories and credit scores, although kind of privately administered, are an important form of social and economic capital that citizens have. They require those scores to get credit cards, to get mortgages, to get loans, and so forth. And there’s been evidence that you might not have heard, but I’ll ask you to take my word for it, that some individuals who had their accounts seized, and subsequently those accounts released to them, nonetheless have had lingering effects on their credit history because of mis-payments. And that might not be an effect -- and so to your point, Mr. Sabia, that the Act was only used for a limited time period, that might be true, but the lingering effects of a decline in someone’s credit history or credit score could take place or be experienced over many months or many years. And should there not have been some thought and some aspect of the order that would have taken into account the long-term effects on individual’s credit histories and credit scores by the temporary freezing of their accounts, even if only for a short period of time?
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Sujit Choudhry, Counsel (CCF)
Well ma’am, that’s not true. I mean, I think you’ve just said yourself that it was donors.
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Sujit Choudhry, Counsel (CCF)
And so the long-term effects on credit histories, that’s not something that concerns you at all?
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Sujit Choudhry, Counsel (CCF)
And so, you know, Mr. Sabia, I put to you that although it’s correct that it’s a privately administered system, nonetheless, in this case, decisions of the Government of Canada had a direct effect on how that system operated, not just in the short term, but for many months, and potentially for long after.
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Sujit Choudhry, Counsel (CCF)
Sure. And, Mr. Sabia, I'd just put to you one final point on this theme, which is that the way you're describing the consequence on a credit score, you're -- it seems to me that you would agree with me that that's yet another economic incentive that individuals might weigh ---
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Sujit Choudhry, Counsel (CCF)
Sure. And I'd tell you -- I'd say to you, Mr. Sabia, or suggest to you that if that had been an intended consequence, that would be a form of extra legal sanction that went beyond ---
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Sujit Choudhry, Counsel (CCF)
--- the penalties in the Orders.
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Sujit Choudhry, Counsel (CCF)
Could I take you to the issue of crowdfunding and the Regulation ofcrowd funding? And so I know that one of the many issues on your agenda during the period leading up to the invocation of the Emergencies Act was the question of the available legal tools to curtail the flow of funds towards protesters participating in the various blockades. And I recognize you're not lawyers, and I'm sorry to have to ask you these legal questions ---
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Sujit Choudhry, Counsel (CCF)
Oh, Ms. Jaques? Well, it might be that you are going to answer some of these questions, but I put them to the whole panel.
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Sujit Choudhry, Counsel (CCF)
And so what I'd like to do, if I may, if I could call Mr. Clerk to call up the following witness statement -- or interview summary for this panel, and it's WTS many 0s 59, page 7.
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Sujit Choudhry, Counsel (CCF)
You know ---
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Sujit Choudhry, Counsel (CCF)
--- I'd -- I think Counsel would like an explanation too, Mr. Sabia. So if we could just scroll down a bit, there we go. Thank you. So there are these two paragraphs here that I'd like to put to you for the record. And so the first paragraph is the one that begins, "Finance also looked to options under [what let's call it] the [...] (Money Laundering) and Terroris[m] Financ[e] [Statute]..." And would you agree that it says there that, "[Deputy Minister] Sabia and [Assistant Deputy Minister] Jacques stated that it quickly became clear that there was a gap in the [Money Laundering and Terrorism Finance Act]: it did not apply to crowdfunding services [it] applied only to certain payment service providers [and] this was significant [and so forth]..." You agree -- and you agree you said that in the interview. And then if I could take you to the next paragraph again for the record, will you agree that you then added, Deputy, "... that an overriding issue with the options considered by Finance was timing [and] Any legislative amendments would take a long time to pass, whereas action was needed quickly." You ---
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Sujit Choudhry, Counsel (CCF)
--- agree you said that? And so ---
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Sujit Choudhry, Counsel (CCF)
Sure. I ---
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Sujit Choudhry, Counsel (CCF)
You -- I think you said it both this morning and this afternoon. So is -- you didn't quite say it this way but let me just put this to you. Are you saying there that the only way that you saw, or that you were advised to get the Money Laundering and Terrorism Finance Legislation to apply to crowdfunding, absent using the Emergencies Act was a legislative amendment, and that just was not viable at the time?
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Sujit Choudhry, Counsel (CCF)
So could I just pick up on what -- something you said. So, you know, you kind of drew a distinction between let's call it government as usual, or normal, and the urgent situation that was thrust upon you in early February. And so -- and on -- in the government as normal approach, which you say here is that there would be -- need to be a legislative amendment, but that's not the moment that Canada was in at that time you say. There was no time for a legislative amendment to amend ---
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Sujit Choudhry, Counsel (CCF)
Oh ---
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Sujit Choudhry, Counsel (CCF)
So you've anticipated my next question. So, look, I want to take you to the following document. It's CCF many 0s 42. Thank you, Mr. Registrar. If we could scroll down, so -- okay. You can stop there actually. Sorry. You can see these -- this is an amendment to the Regulations in relation to the Money Laundering and Terrorism Finance Statute. It was promulgated on April 5th by the Governor in Council. And as you know, the Governor in Council just does that. There's no legislative process involved there. And then if you could scroll down, please, to Section 2? And so here let's -- if you could go -- yes. Actually, that's right. " The Regulations are amended by adding the following before section 30: [it says] For the [paragraphs] of subparagraphs 5(h)(v) and (h.1)(v) of the Act, crowdfunding platform services are a prescribed service." So I'd put to you that what this Regulation did was to extend FINTRAC's authority and the application of FINTRAC to fund crowdfunding services; would you agree?
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Sujit Choudhry, Counsel (CCF)
But this could have been done just as easily in early or mid February?
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Sujit Choudhry, Counsel (CCF)
Why is that?
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
Sure. But, Minister, sorry, Deputy Minister ---
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Sujit Choudhry, Counsel (CCF)
Sorry, excuse me. But I take you -- if you'd like, I can take you to the Terrorism Financing Legislation itself, but we don't have time, but I'd put to you this, that there's nothing there in Section 73(1) -- or 73.1(1) that spell out a lengthy detailed regulatory process. It might be that that is what normally is done, but as a matter of law, that's not required. And so if that's true, then couldn't the government, couldn't the Federal Cabinet just have enacted this Regulation in February?
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Sujit Choudhry, Counsel (CCF)
So ---
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Sujit Choudhry, Counsel (CCF)
So -- well, Deputy Minister, let me just conclude by explaining to you what we see the differences being and put it to you. I take it you've read the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
And you've read section 3 of the Act?
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Sujit Choudhry, Counsel (CCF)
And section 3 has at the end of it a last resort clause. It says that the Emergencies Act can only be triggered as a last resort if no other legal tools are available and are effective. And I'd put to you that this shows that in relation to FINTRAC there was another option available to the Federal Government, absent or short of declaring an emergency.
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Sujit Choudhry, Counsel (CCF)
Ms. Jacques, I can see you want to respond to that.
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Sujit Choudhry, Counsel (CCF)
But Ms. Jacques, all that's required here is a one paragraph amendment to the existing regulation. These are shorter than the amendments -- than the terms of the Economic Measures Order.
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Sujit Choudhry, Counsel (CCF)
Commissioner, I think that - - those conclude my questions. Thank you.
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Sujit Choudhry, Counsel (CCF)
Ms. Charette, Ms. Drouin, my name is Sujit Choudhry. I’m counsel for the CCF. I know it’s been a long day so I just have a few questions for you.
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Sujit Choudhry, Counsel (CCF)
Yes, that’s for the record.
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Sujit Choudhry, Counsel (CCF)
Sorry. So, Ms. Charette, you said in your testimony today that one of your roles is to service as the secretary to cabinet.
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Sujit Choudhry, Counsel (CCF)
And that in that role, you set -- or you participate in the setting of agendas for cabinet meetings. You said you determine attendance, and that attendance includes, as we’ve seen in the cabinet’s minutes put into evidence, not just cabinet ministers but many senior officials.
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Sujit Choudhry, Counsel (CCF)
You oversee that process.
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Sujit Choudhry, Counsel (CCF)
Of course.
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Sujit Choudhry, Counsel (CCF)
Understood. And you attend those meetings yourself as secretary to the cabinet and, as you said, you have a responsibility to ensure that if cabinet is to deliberate or make a decision, that it has all the correct information before it?
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Sujit Choudhry, Counsel (CCF)
And you also said that they are -- unlike cabinet committee meetings, you said they’re run in a very structured fashion where the prime minister chairs and officials speak if they’re called upon?
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Sujit Choudhry, Counsel (CCF)
Okay. So I’d like to take you to the cabinet meeting of February 13th. So I take it that given the importance of that meeting, you were centrally involved in setting the agenda?
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
And you also, then, were centrally involved in determining the attendance at that meeting? And in particular, you were involved in ensuring that Commissioner Lucki, Deputy Minister Stewart, and Me Vigneault were at that meeting?
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Sujit Choudhry, Counsel (CCF)
And so -- and the invitation would have come from the Privy Council Office; correct?
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Sujit Choudhry, Counsel (CCF)
If not from you directly, then certainly by your ministry?
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Sujit Choudhry, Counsel (CCF)
And so we’ve had testimony - - sorry, did you want to ---
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Sujit Choudhry, Counsel (CCF)
Please, please.
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Sujit Choudhry, Counsel (CCF)
And is the Maple Leaf lodged institutionally in the Privy Council Office? For cabinet meeting, I would think so.
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Sujit Choudhry, Counsel (CCF)
Okay, fair enough, but at the centre?
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Sujit Choudhry, Counsel (CCF)
At the centre, okay. And so we’ve evidence put to us this week -- put to the Commission as follows. And have you read the CSIS Interview Panel Interview Summary?
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Sujit Choudhry, Counsel (CCF)
And so ---
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Sujit Choudhry, Counsel (CCF)
Well, with your permission - - or with the Commissioner’s permission, I should say, I’d like to put on the screen, if we could, Witness -- WTS, many zeros, 60.
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Sujit Choudhry, Counsel (CCF)
This is the CSIS -- it’s Me Vigneault’s evidence, and it’s been referred to many times this week.
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
So if we could pull it up, please.
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Sujit Choudhry, Counsel (CCF)
Yeah, this is the unclassified version.
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Sujit Choudhry, Counsel (CCF)
Yes. And so if we could just go to page 8 and could scroll down to “Recommendation to Cabinet”. Okay, let’s stop there, please. Thank you, Mr. Clerk. So just if you could -- I’m just going to read this into the record, and if you could read along with me, please.
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Sujit Choudhry, Counsel (CCF)
It’s: "Me Vigneault learned that the Emergencies Act referenced the threat definitions set out in Section 2 of the CSIS Act once the federal government began to seriously consider invoking the EA between February 10th and 13th. He requested that the Service prepare a threat assessment on the risks associated with the invocation of the Emergencies Act. He felt an obligation to clearly convey the Services position that there did not exist a threat to the security of Canada as defined in the Services legal mandate." (As read). And then, further on, in the bottom paragraph -- so pardon me, yes, the paragraph that begins, “Me Vigneault discussed…”, he said he: "…discussed the threat assessment at the IRG on February 13th…" (As read). And then he says the document was also available for distribution for the cabinet meeting but he does not know if it was distributed by the PCO. So can you please answer, was this threat assessment distributed to the cabinet, yes or no?
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Sujit Choudhry, Counsel (CCF)
It was. And -- but -- and this was the only threat assessment provided to the cabinet or the prime minister prior to the decision to invoke the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
So -- but, Ms. Charette, was the Service’s assessment that the required -- that there was no threat to national security, was that shared with the cabinet?
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Sujit Choudhry, Counsel (CCF)
Well ---
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Sujit Choudhry, Counsel (CCF)
Well, Ms. ---
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
Right.
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Sujit Choudhry, Counsel (CCF)
And was that view shared with the cabinet, yes or no?
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Sujit Choudhry, Counsel (CCF)
But -- I’m sorry, just a simple question. Was that assessment shared with the cabinet, yes or no?
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Sujit Choudhry, Counsel (CCF)
Yes, at the February 13th meeting, was that assessment shared with the cabinet, yes or no?
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
Was that shared with the cabinet, yes or no, or do you not know?
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Sujit Choudhry, Counsel (CCF)
But you’re not saying that - - you don’t know if that view was shared with the full Cabinet at its meeting on February 13th?
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
Sure.
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Sujit Choudhry, Counsel (CCF)
But you don’t know if Mr. Vigneault’s assessment was shared with the Cabinet?
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
Sure.
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Sujit Choudhry, Counsel (CCF)
And I’m not asking you about that.
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Sujit Choudhry, Counsel (CCF)
I’m asking about what he stated in the previous paragraph of his evidence. Do we know if his views ---
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Sujit Choudhry, Counsel (CCF)
And so have you had a chance to review Deputy Minister Stewart’s testimony from this week?
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Sujit Choudhry, Counsel (CCF)
So I’d put to you that under cross-examination this week, Deputy Minister Stewart testified on Monday that CSIS was not asked to provide this assessment to Cabinet. Do you have any reason to disagree with Deputy Minister Stewart’s testimony?
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Sujit Choudhry, Counsel (CCF)
Thank you.
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Sujit Choudhry, Counsel (CCF)
So I’d now like to turn to the memo, Ms. Charette, that you wrote to the Prime Minister.
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Sujit Choudhry, Counsel (CCF)
Sure.
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Sujit Choudhry, Counsel (CCF)
There are limits. I know, Commission. So in the memo, in which you recommended to the Prime Minister that the Emergencies Act be triggered, you were aware of Mr. Vigneault’s view, but nonetheless, you determined that there was a threat to national security; correct?
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Sujit Choudhry, Counsel (CCF)
Yeah.
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Sujit Choudhry, Counsel (CCF)
Right.
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Sujit Choudhry, Counsel (CCF)
And you relied on the National Security Intelligence Advisor view, integrated, as she put it in her testimony yesterday, information from across the Federal Government to arrive at her view that there was a threat to national security under the Emergencies Act?
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Sujit Choudhry, Counsel (CCF)
So I would like to put this point to you, ---
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Sujit Choudhry, Counsel (CCF)
--- that in a constitutional democracy, to prevent the abuse of executive powers by an elected government, it is imperative that the views of a professional non-partisan and expert security services be front and center and that they not just be a factor, but that they be at the core of whether a government decides to invoke emergency powers? And what you’ve said today is that you’re not sure if Mr. Vigneault’s views are before the full Cabinet, they weren’t set -- you’ve distinguished the legal relevance of his views, and you’re suggesting that what the Security Secretariat ---
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Sujit Choudhry, Counsel (CCF)
Are you suggesting that what the CSIS says isn’t at the core of what makes it reasonable to determine if a public order emergency exists?
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Sujit Choudhry, Counsel (CCF)
I apologize.
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Sujit Choudhry, Counsel (CCF)
Yeah, please.
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Sujit Choudhry, Counsel (CCF)
Commissioner, I think I’m way past my time, so I’ll wrap up. Thank you.
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Sujit Choudhry, Counsel (CCF)
Good afternoon. My name is Sujit Choudhry. I’m counsel for the Canadian Constitution Foundation. I want to ask you a few questions about the legislative history of section 2(c) and the emergence of IMVE as a central focus for CSIS’ activities, if I may. Is it true that section 2(c) was amended in 2001 by the Anti-Terrorism Act to include a religious or ideological objective?
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Sujit Choudhry, Counsel (CCF)
And is it true that that amendment was -- ensured that the CSIS Act would align with the Criminal Code’s new definitions of terrorism?
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Sujit Choudhry, Counsel (CCF)
Mr. Vigneault, you’re shaking your head.
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Sujit Choudhry, Counsel (CCF)
Okay. All right. Fair enough. And so I’d ask you to take my word for it that it was part of the same legislative package to get those two statutes in alignment. And so -- and then in 2019, there is a major initiative on the part of CSIS, is the development of a definition framework for ideologically motivated violent extremism? Is that right?
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Sujit Choudhry, Counsel (CCF)
Good, and, sir, just so we’re clear, I believe that the first time CSIS reported out on this development and this thinking was in the 2019 Annual Report?
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Sujit Choudhry, Counsel (CCF)
Okay. Good. And is it true, in your interview summary, you stated that IMVE does not mirror the Criminal Code definition of terrorism?
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Sujit Choudhry, Counsel (CCF)
Sure. So could we pull up Witness Summary 60, please? And could we go to the bottom of page 3? Thank you. Could we expand -- yes, very helpful. Thank you. Okay. So Mr. Vigneault, do you agree that you said here that the definition of IMVE does not mirror the Criminal Code definition of terrorism?
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Sujit Choudhry, Counsel (CCF)
Yeah, it’s the last -- the start at the third line from the bottom, sir.
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Sujit Choudhry, Counsel (CCF)
Okay. And then if we could continue? If we could just continue, you said -- you gave them the example of Alexandre Bissonnette: “…who met the Service’s definition of an ideologically motivated extremist, but who was not charged with terrorism offences under the […] Code.” Did you say that?
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Sujit Choudhry, Counsel (CCF)
And so is it reasonable to infer, from your evidence there, that the definition of IMVE is broader than the Criminal Code definition of terrorism?
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Sujit Choudhry, Counsel (CCF)
So does it follow, sir, from you’ve just said, that IMVE, or the notion of IMVE, gives CSIS broader tools to assess and respond to extremism than might be available under the Criminal Code?
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Sujit Choudhry, Counsel (CCF)
And sorry, ma’am, did you -- -
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Sujit Choudhry, Counsel (CCF)
Okay. And would you say that it’s that CSIS over the last number of years has developed a lot of expertise on IMVE?
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Sujit Choudhry, Counsel (CCF)
And the analysis is done in the first instance by skilled, intelligence professionals?
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Sujit Choudhry, Counsel (CCF)
And you’re a learning organization, so you’re always trying to improve how you analyze IMVE?
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Sujit Choudhry, Counsel (CCF)
Okay. And so would it be far to say, if you can now look back to 2018 or 2019, and think about the world before then and the world after, in terms of CSIS’ function, do you think that the adoption of IMVE has broadened the scope of the activity CSIS investigates under 2(c)?
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Sujit Choudhry, Counsel (CCF)
So but you would agree that IMVE now occupies 50 percent or more of your -- of CSIS resources?
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Sujit Choudhry, Counsel (CCF)
Mr. Commissioner, how much time do I have left?
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Sujit Choudhry, Counsel (CCF)
Okay. So I’d like to pivot, at the end, just to the issue of threats to government officials online, if I may, because my friend, Mr. Champ, raised it for you. And so it seems to me, and I ask you to agree with this, that it seems that the mere utterance of a threat online doesn’t necessarily, per se, cross the section 2(c) threshold. Is that right?
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Sujit Choudhry, Counsel (CCF)
Could you tell us when it would?
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Sujit Choudhry, Counsel (CCF)
Okay. Well Mr. Commissioner, I think we’re out of time. So thank you for your time.
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Sujit Choudhry, Counsel (CCF)
Oh.
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Sujit Choudhry, Counsel (CCF)
Minister Blair, good evening. My name is Sujit Choudhry. I am counsel for the Canadian Constitution Foundation. I have some questions for you about some remarks you made or evidence you provided in your witness statement regarding the sequencing of requests by the OPS to the OPP and the RCMP. And so just for the sake of time, I'd prefer not to call it up, although I will if you'd like to refresh your memory, but do you recall you said that the City of Ottawa and the OPS were not following the proper procedure for requesting resources because requests for police resources in Ontario are formally governed by section 9 of the Police Services Act?
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Sujit Choudhry, Counsel (CCF)
And Minister Blair, would you agree that that provision, although it authorises a municipal police force or a chief of police to seek assistance from the OPP, it doesn't require that they go first to the OPP before going to the RCMP?
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Sujit Choudhry, Counsel (CCF)
And so you'll the tripartite calls that Chief Sloly participated on, on February 7th and 8th?
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Sujit Choudhry, Counsel (CCF)
And you had a brief interaction with him. And this was after the request for policing resources was sent simultaneously by Mayor Watson and Chair Deans, both to Ontario and to the Federal Government, and this type of concern about sequencing it wasn't ever relayed to him, was it?
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Sujit Choudhry, Counsel (CCF)
Right.
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Sujit Choudhry, Counsel (CCF)
And you'd agree there is nothing in the RCMP Act that says that the RCMP can't respond to a request from a municipal police service?
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Sujit Choudhry, Counsel (CCF)
Sure. And this wasn't a normal circumstance, though, was it?
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Sujit Choudhry, Counsel (CCF)
And so if I could conclude here. So you'd agree that even though in the normal course it might be appropriate and it might be standard practice for a municipal police service in this province to first go to the OPP, or to other municipal police forces before going to the RCMP, perhaps in the case of the convoy and in the National Capital Region it might have been entirely appropriate to set aside that normal practice and go directly to the RCMP in parallel?
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Sujit Choudhry, Counsel (CCF)
Thank you, sir.
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Sujit Choudhry, Counsel (CCF)
Commissioner, Minister, my name is Sujit Choudhry; I’m counsel for the CCF. Minister, I’d like to begin by picking up on a comment you made, I believe in -- during your examination in- chief, where you said there’s a dialogue between civilian leadership and law enforcement professionals. And so I want to pick up on that idea in the conduct of your relationship with Commissioner Lucki. And so -- and in the context of the convoy, I’m wondering if you could just answer, you know, a few questions. I mean, did -- were you getting daily briefings; were you in frequent communication with her? If you could just give us -- and I have limited time, so if you can just give us a bit of a window into what your interactions were like with her?
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Sujit Choudhry, Counsel (CCF)
So when the February 7th letter came to you and the Prime Minister from Mayor Watson and Chair Deans, requesting a deployment of RCMP officers, I suppose you would have delivered that letter to the Commissioner, then?
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
Of course.
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Sujit Choudhry, Counsel (CCF)
And she was updating you, then, on her steps to respond to that request for support?
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Sujit Choudhry, Counsel (CCF)
Okay. So Mr. Registrar, if you could up on the screen, the following document. And I apologize, it’s PBNSCCAN00002872_REL.0001. And Minister, while this is coming up, this is a document that’s dated on or about February 10th. And it’s a Memorandum of Agreement between the RCMP and the -- essentially, the OPS and the OPSB about force deployments. Have you seen this document before?
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Sujit Choudhry, Counsel (CCF)
So if we could go down to page 3, please, Mr. Registrar. If you could go to clause 2.1? There you go. So as you’ll see here that article 2.1, Minister, if you could just have a quick look at this? It says that the RCMP agreed to deploy to Ottawa up to 250 members of the RCMP in a number of different capacities. And then it suggests later down in that clause that -- in that article that provision for over 250 members can be made for -- with subject to mutual agreement.
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Sujit Choudhry, Counsel (CCF)
And does this seem familiar to you?
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Sujit Choudhry, Counsel (CCF)
Okay. And so I just want to get a bit of clarification from you, if you’re able to. So when the RCMP was providing support here to the OPS, to the best of your knowledge, would that be a -- not include RCMP deployments already, for example, in the Parliamentary precinct or out at Rideau cottage to protect the Prime Minister?
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Sujit Choudhry, Counsel (CCF)
And do you recall what information came back to you?
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Sujit Choudhry, Counsel (CCF)
So if we could just call up another document. It's OPB00001014. And so Minister Mendicino, I'm not sure if you've seen this. It's a chart of deployments by different police or law enforcement entities in Ottawa up to and including the 12th of February. Have you seen this chart before or something similar to it?
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Sujit Choudhry, Counsel (CCF)
So this is a production by the Ottawa Police Board. So I'm not -- I'm afraid I can't give you more details about who put this together, but this is in evidence before the Commission.
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Sujit Choudhry, Counsel (CCF)
Well, it might be. It's something that was put into evidence by the Ottawa Police Board. I can't speak to them, sir, about where they -- how they generated it.
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Sujit Choudhry, Counsel (CCF)
Okay. Well, then, look, let's soldier on. So if you look under Regular Members, Federal RCMP... Yes, Mr. Registrar, thank you. So it says at the end of this line that 167 officers were deployed. And so that -- I mean, were you aware of that figure on that day?
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Sujit Choudhry, Counsel (CCF)
In that range. And so -- I mean, you'd agree that on its face it does appear that these numbers are lower than the 250 that are in the agreement I showed you?
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Sujit Choudhry, Counsel (CCF)
And you're not able to say, and I think I know the answer, sir, but I have to do it for the record. You're not able to say of that 167 how many were at Rideau Cottage and on the Parliamentary Precinct, are you?
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Sujit Choudhry, Counsel (CCF)
Okay. Minister, I'd like to just turn to another theme if I could. And so this morning, you made a number of statements. You said it was virtually impossible to enforce the law on Wellington. Wellington falls within the jurisdiction of the OPS. The RCMP could not go and assert itself on Wellington to bring things under control. Is that fair?
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Sujit Choudhry, Counsel (CCF)
Okay. And so Minister, were you able to -- I know you're very busy, but were you able to review or be briefed on Commissioner Lucki's cross-examination last week?
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Sujit Choudhry, Counsel (CCF)
So my co-counsel went through some issues in respect of those themes with Commissioner Lucki, and I just want to take you to what she said if you wouldn't mind. And so this is Transcript 23, Mr. Registrar, and we're on to page -- we're going to begin at page 241. And Minister Mendicino, I know you're a member of the Law Society of Ontario, so this will be a bit -- there will be a bit of legal questioning here.
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Sujit Choudhry, Counsel (CCF)
Great. So if we can start at line 5. Super. Okay. So my colleague, Ms. Shanmuganathan, was asking questions of Commissioner Lucki, so I just want to take you through some of the back and forth if I could. So my colleague says, my co-counsel: "'Okay. So you'll agree...that RCMP officers have the power to enforce the Criminal Code, for instance?'" And the Commissioner says, "Yes". Then my co-counsel says: "'Right. And they always have the power to enforce the...Code? It's just part of what they're allowed to do?'" And the Commissioner says, "Yes." And then if you could scroll down, Mr. Registrar. My co-counsel says: "'Right. They don't need to be sort of the local police in a jurisdiction. This is a power...they always have?'" And the Commissioner says, "Yes". And then my colleague says: "'Right. And there's nothing in the...Code, for example, that says an RCMP [officer] can't enforce the Criminal Code in one particular place? They can enforce [that] anywhere in Canada?'" And then this -- and Commissioner Lucki is not sure that's the -- and I'll let you read her response there, sir. And when you're done, let us know, and I'll go to the next page. And Commissioner, I know I'm a little bit over time, but I think this is an important. It goes the jurisdiction on Wellington. Mr. -- can we go to the next page?
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Sujit Choudhry, Counsel (CCF)
So if you could go to page 242.
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Sujit Choudhry, Counsel (CCF)
I'm sorry.
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Sujit Choudhry, Counsel (CCF)
Of course.
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Sujit Choudhry, Counsel (CCF)
Of course. I didn't mean to mislead. So I take my friend's point. And so if you could just go down to my colleagues next question. So: "'Okay. So just to use sort of a bit of a silly example, if we have an RCMP officer that's standing on Wellington Street in Ottawa, and they see somebody committing an offence under the Criminal Code, they don't need to call up [OPS] to arrest the person, they could go and arrest the person themselves?"' And the Commissioner answered, "Yes". And so we're sort of -- we're running -- we're past time, so I just wanted to ask you, so we put to the Commissioner a number of questions about the scope of RCMP officers under the RCMP Act, particularly section 18(a). And would you -- do you have any reason to think that Commissioner Lucki is incorrect here?
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Sujit Choudhry, Counsel (CCF)
Okay. Well, Commissioner, I'm well over time, and thank you, Minister Mendicino.
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Sujit Choudhry, Counsel (CCF)
Minister LeBlanc, my name is Sujit Choudhry. I'm counsel for the Canadian Constitution Foundation. So ---
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Sujit Choudhry, Counsel (CCF)
Good evening. I'd like to pick up on a theme that was being developed by my friend from the Government of Saskatchewan. And so the theme, I would submit to you, is this: That, as you know, the Emergencies Act has a number of requirements that has to be met to declare a Public Order Emergency; correct?
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Sujit Choudhry, Counsel (CCF)
And so it's -- one of the questions that we're trying to get at is whether at the First Ministers Meeting the Prime Minister and other members of the Cabinet in attendance effectively communicated to the First Ministers why they felt those requirements had been met. So my friend just asked you questions about the availability of other legal options, the so-called policing plan; correct?
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Sujit Choudhry, Counsel (CCF)
Policing plan.
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Sujit Choudhry, Counsel (CCF)
Well -- or what Commissioner Lucki has put into evidence that there was in fact by the 14th a policing plan available or ready to be triggered, but -- and my friend I believe asked you whether that plan was put to the First Ministers, and you weren't sure if it had been or not.
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Sujit Choudhry, Counsel (CCF)
What I'd like to do is pick up on another limb of the legal test for whether a Public Order Emergency can be declared, which is whether there is a threat to national security. And you're aware of that; correct?
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Sujit Choudhry, Counsel (CCF)
And so you're aware that under section 16 of the Emergencies Act the Governor in Council can only declare a Public Order Emergency if there's a threat to national security.
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Sujit Choudhry, Counsel (CCF)
You did. And did you provide any type of documentation or explanation to the First Ministers as to the basis for your conclusion that there was a threat to national security?
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Sujit Choudhry, Counsel (CCF)
So Minister, I put to you this: that for the consultation requirement to have some substance to it, the Federal Government is under a duty, I'd ask you, to be as transparent as possible with the First Ministers on that call about why it is taking the exceptional step of triggering the Emergencies Act; correct?
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Sujit Choudhry, Counsel (CCF)
Yes.
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Sujit Choudhry, Counsel (CCF)
But Minister LeBlanc, I believe you understand that at this point, according to the evidence that we've heard in the Commission, there were two potential sorts of threat assessments at the centre presented in the Privy Council Office. The first you're probably aware of is Director Vigneault's assessment; correct? And he had assumed -- he concluded that there was no threat to national security for the purposes of the CSIS Act. And you're aware that?
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Sujit Choudhry, Counsel (CCF)
I -- yes?
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Sujit Choudhry, Counsel (CCF)
But as you probably know, last week the NSIA, Ms. Thomas, testified that on her -- in her view there was a threat to national security under the Emergencies Act; correct?
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Sujit Choudhry, Counsel (CCF)
And -- but was that -- was her view shared with the First Ministers on that call so that the consultation was more than just providing them with notice?
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Sujit Choudhry, Counsel (CCF)
But just to be clear, at the First Ministers meeting you don't recall if a detailed threat assessment was provided to the premiers?
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Sujit Choudhry, Counsel (CCF)
Minister, I have a couple of minutes left. I want to take you to a different issue if I may. It's about your conversations with the Government of Quebec and the reservations expressed by Premier Legault and then your subsequent phone call with Minister LeBel. And if I understood you correctly, it was your position that the economic emergency measures that were taken had to apply nationally; correct?
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Sujit Choudhry, Counsel (CCF)
But the same rationale does not apply to the non-economic measures, does it?
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Sujit Choudhry, Counsel (CCF)
Minister Leblanc, let me end with this question then. But wouldn’t it have been an alternative to have offered those non-economic measures to those provinces that wanted them and to enable them to opt in as they wished to? So those provinces that needed and wanted those powers could have gotten them right away and those that maybe needed them later could have opted in if they needed them?
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Sujit Choudhry, Counsel (CCF)
Thank you, sir.
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Sujit Choudhry, Counsel (CCF)
Commissioner, we -- my friend has asked to switch spots.
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Sujit Choudhry, Counsel (CCF)
We’ve advised the parties. Yes, I’m not Mr. Kittredge. So and the parties -- no parties have objected.
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Sujit Choudhry, Counsel (CCF)
Thank you, sir.
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Sujit Choudhry, Counsel (CCF)
Oh, no. Not at all.
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Sujit Choudhry, Counsel (CCF)
Hope spring eternal, but afraid not.
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Sujit Choudhry, Counsel (CCF)
It's been a long six weeks, Commissioner.
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Sujit Choudhry, Counsel (CCF)
Good morning, Prime Minister. My name is Sujit Choudhry. I'm Counsel for the CCF. Prime Minister, I'd like to shift gears a bit and ask you some questions about your role as Chair of the Cabinet. And so it is -- it's true, would you agree, that one of your chief responsibilities as Prime Minister is to Chair the Cabinet?
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Sujit Choudhry, Counsel (CCF)
And it's a serious responsibility?
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Sujit Choudhry, Counsel (CCF)
And so yesterday there was a panel testifying for the Prime Minister's Office, and I'm sure you're aware, and your Chief of Staff, Katie Telford, answered questions about your role as Chair of the Cabinet. Are you aware of her testimony?
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Sujit Choudhry, Counsel (CCF)
Okay. And so she -- under cross-examination, she testified that you are the ultimate decision maker for determining the information and documentation shared at Cabinet meetings. Is there -- do you have any reason to disagree with what she said?
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Sujit Choudhry, Counsel (CCF)
So there's advice provided to you by the Privy Council Office, is that what you're saying, on what documentation and information goes to Cabinet? It's presented to you for review and then you sign off on it; yes, or no?
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Sujit Choudhry, Counsel (CCF)
Sure. So, well, why we talk about the February 13th Cabinet meeting, so the questions are about that. And so you'd agree, sir, that that was an extraordinarily important Cabinet meeting?
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Sujit Choudhry, Counsel (CCF)
A historic meeting even?
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Sujit Choudhry, Counsel (CCF)
And even though it was happening at a time of great pressure, of great urgency, you would have taken care to determine in your capacity as Chair of Cabinet that Cabinet had all the relevant information and documentation before it?
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Sujit Choudhry, Counsel (CCF)
So but you would agree that under the Emergencies Act, as you stated this morning in testimony, the power to declare a Public Order Emergency rests with what you called the Cabinet and Prime Minister, which is the Governor in Council.
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Sujit Choudhry, Counsel (CCF)
Right, which is the full Cabinet, not a Cabinet subcommittee.
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Sujit Choudhry, Counsel (CCF)
Okay. So ---
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Sujit Choudhry, Counsel (CCF)
Yeah, and you agree, there's no way you could have gone to the -- you could have declared a Public Order Emergency without having a full Cabinet meeting?
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Sujit Choudhry, Counsel (CCF)
So but in this case, there was such a meeting?
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Sujit Choudhry, Counsel (CCF)
And so ---
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Sujit Choudhry, Counsel (CCF)
So I'd like to ask you some questions of what you've termed as the inputs to that meeting, and just to be abundantly clear to my friends from the Attorney General of Canada, I'm not going to ask you about the content of any of those inputs that might be protected by confidence. I just simply want to ask you if certain documents were inputs or not to the Cabinet meeting, if I may. So the first is that we've heard in testimony that there was a legal opinion that explained the difference in the definition of threats to the security of Canada in the CSIS Act and the Emergencies Act, and you've testified to that this morning. Do you know, sir, if that a legal opinion was provided to the full Cabinet at its meeting on February 13th?
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Sujit Choudhry, Counsel (CCF)
So was that written opinion provided to the Cabinet, sir?
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Sujit Choudhry, Counsel (CCF)
I'd like to ask you about another document, which is that we've heard about a threat assessment prepared by CSIS, and you are familiar with that as well. And Director Vigneault testified that he had concluded or CSIS had concluded that there wasn't a threat to national security under 2(c) of the CSIS Act. He also testified that that threat assessment was provided to the IRG on February 13th. So my question is, was this threat assessment provided to the full Cabinet on the evening of February 13th?
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Sujit Choudhry, Counsel (CCF)
So, sir, you'd agree that that document was not provided to the full Cabinet on February 13th? You said a report ---
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Sujit Choudhry, Counsel (CCF)
The CSIS threat assessment. And if I could rephrase what you said, you just said the IRG considered that report ---
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Sujit Choudhry, Counsel (CCF)
--- it discussed it ---
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Sujit Choudhry, Counsel (CCF)
So, Prime Minister, Director Vigneault testified that a written threat assessment was prepared by CSIS, and he testified that he provided that to the IRG.
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Sujit Choudhry, Counsel (CCF)
Are you saying that that document was not provided to the IRG?
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Sujit Choudhry, Counsel (CCF)
Okay. But are -- would you agree that it wasn't provided to the full Cabinet?
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Sujit Choudhry, Counsel (CCF)
And, Prime Minister, this morning in your testimony, you addressed the policing plan that was prepared by the OPS, and I believe you stated, "We should read it, we should look at it, because it wasn't much of a plan." Is that fair?
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Sujit Choudhry, Counsel (CCF)
So, sir, I'd like to pull the plan up on the screen, please. It's -- and, Mr. Registrar, it's PB.NSC.CAN 00007734. Thank you, Mr. Registrar. Prime Minister, is this the document, or is this the plan you were referring to?
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Sujit Choudhry, Counsel (CCF)
So, sir, what I'd like to do -- so you have not read this?
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Sujit Choudhry, Counsel (CCF)
Okay. So I'd like ---
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Sujit Choudhry, Counsel (CCF)
Okay. And so I'd like to just -- Mr. Registrar, I'd just like to walk the Prime Minister through the pages, not so he could read it because we don't have time, but just to point that this is a heavily redacted document. So page 1 is the cover page. Page 2 is a -- is this signature page. If we could go down? Page 3 is a description of the situation and the mission.
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Sujit Choudhry, Counsel (CCF)
And then, Mr. Registrar, if you could please scroll down, the rest of this document has been redacted. So that's page 4, page 5, page 6, page 7, page 8. So, Prime Minister, you said we should read this plan. We can't. It's your -- it's within your legal authority to instruct your Counsel to remove these redactions. For the sake of the transparency of this Commission, sir, would you consider that request?
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Sujit Choudhry, Counsel (CCF)
Commissioner -- sorry, sir.
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Sujit Choudhry, Counsel (CCF)
This was in our document list that we circulated within time to Counsel for the Attorney General. They had notice that we would be putting this document. And the question is a fair one in response to the Prime Minister's testimony this morning, that he said you should read it.
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Sujit Choudhry, Counsel (CCF)
So, Commissioner, with that, with your ruling there, and I thank Mr. Gover for his point, Prime Minister, can I put it to you this way. You said we should read the plan, but I think you would agree we can't?
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Sujit Choudhry, Counsel (CCF)
And, Prime Minister, and again, I think I would like to raise this again. I'm looking to Mr. Gover in anticipation of his reaction. As you know, there's a legal opinion that over which solicitor/client privilege has been asserted. We asked Minister Lametti to release that opinion. And in a public statement this week, he said he couldn't because he lacked the authority to. That would be up to his client. And he then clarified that his client is the Governor in Council. So again for the record, sir, and this has been an issue for all week, not just this morning, would you advise that that opinion be released in the interest of transparency?
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Sujit Choudhry, Counsel (CCF)
Okay. Thank you, Commissioner. And so I have one final question, sir. So there has been a lot of discussion this week about legal thresholds and how they differ under the Emergencies Act on your government's submissions than they do under the CSIS Act, and you testified about this this morning. I just want to ask you one question. The emergency was revoked on February 23rd; correct?
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Sujit Choudhry, Counsel (CCF)
We can take my word for it. And prior to that revocation, there was a great deal of public debate and public discussion about the case for the emergency made by the government; is that right?
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Sujit Choudhry, Counsel (CCF)
And, sir, I'd put it to you that not until this Commission has a government of Canada ever publicly communicated that the threshold for declaring -- determining a threat to national security is different under the Emergencies Act than under the CSIS Act, not once. Why is that, sir?
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Sujit Choudhry, Counsel (CCF)
Commissioner, I think those complete my questions. Thank you.
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Sujit Choudhry, Counsel (CCF)
That’s okay. Sorry to disappoint you. So Commissioner Rouleau, for the record, my name is Sujit Choudhry and I’m counsel for the Canadian Constitution Foundation. Commissioner, as you look over the evidence and prepare your report, we would suggest that you do so informed by history. In particular, we would invite you to look back at the Cabinet minutes of the last use of emergency powers by Cabinet before February 2022. The invocation of the War Measures Act in 1970 during the FLQ crisis. These minutes have been declassified and they are in the CCF’s evidence. At the time, the Prime Minister did not initially recommend that the War Measures Act be triggered. The Security Committee of the Cabinet had met the previous day and were briefed by the security services that there was no apprehended insurrection in Quebec. The Honourable Jean Marchand, the Political Minister of Quebec, sharply disagreed at the Cabinet meeting. He presented unverified intelligence at the Cabinet table that the FLQ was, “a state within a state and heavily armed.” He stated that failure to invoke the Act was, “meant the risk of losing Quebec.” In the end, the Cabinet came around to Marchand’s view. I have no doubt that Minister Marchand acted in good faith. However, it is now accepted that he and the Cabinet were deeply mistaken. There was no apprehended insurrection in Quebec. The security services were right. Cabinet overreacted in the FLQ crisis. It should have relied on legal tools outside the War Measures Act. The basic mission of the Emergencies Act was to make sure that this kind of mistake never happened again. Under the War Measures Act, the Governor in Council had nearly unfettered discretion to determine if an apprehended insurrection existed. On first reading in Parliament, the Emergencies Act only required that the Governor in Council be “of the opinion that a public order emergency exists.” In Committee, the Act was amended to require that the Governor in Council believe on reasonable grounds that a public order emergency exists. Minister Perrin Beatty, the author of the Emergencies Act, explained that the shift from an opinion for reasonable grounds test was to “guarantee Canadians the ability that the Courts could rule on whether the Government had reasonable grounds to believe that a national emergency existed.” The same holds true for this Commission. Commissioner Rouleau, you must determine whether the Governor in Council had reasonable grounds to declare a public order emergency. We say that you must conclude that reasonable grounds did not exist for two reasons. First, the Governor in Council can only have reasonable grounds to determine a public order emergency exists if it is provided with all the relevant information to enable it to make a proper decision. The government has not established that the CSIS threat assessment was even provided to the full Cabinet. There are good reasons to find in the record that it was not. In addition, the Government has not established that the February 13th policing plan was provided to Cabinet. Second, the proper interpretation of the Emergencies Act is that it incorporates the CSIS Act definition of a threat to national security. CSIS’ own expert assessment of this event is that there was no threat to national security. In the face of this finding, the reasonable grounds test requires that the Federal Government provide evidence for why it disagreed with the CSIS assessment. It is simply not enough as a matter of law to say that Cabinet relied on a broader set of inputs. The invocation of the Emergencies Act has been and should remain exceedingly rare. But now that the glass has been broken on the Act, it can be used again. When the Commission asked hard questions about the Act’s use in 2022, it must also focus on the Act’s potential misuse in the future and protect the right to protest Parliamentary democracy and federalism. We thank you, sir, and Commission Counsel for your exceptionally hard work and we look forward to continuing to work with you until this process is completed. Thank you.