Vanessa MacDonnell
Vanessa MacDonnell spoke 101 times across 2 days of testimony.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Dean Leckey. So in terms of setting the stage for today’s discussion, it actually does make sense to actually go back a little bit further than 1982 when the Charter was enacted, and to just touch briefly on Canada’s history of rights protection, because we do have a longer history of rights protection in this country. The common law has long protected rights in Canada, and Canada also has a history of statutory protection of rights, most notably at the federal level through the Canadian Bill of Rights, which is an ordinary statute which, in the 1960s, codified a set of rights and freedoms. Now, this pre-1982 history is certainly not an unblemished one. It’s part of a broader history that includes notable failures in rights protection, and so that needs to be acknowledged as well in discussing Canada’s pre-1982 history. So that brings us to 1982 and to the Charter, which formed part of a package of constitutional reforms that included the recognition of Aboriginal and treaty rights and a domestic- amending formula. So the Charter creates a catalogue of judicially enforceable rights and freedoms. Some of these rights and freedoms are a part of many constitutions around the world. So you'll hear us speak today about the right to free -- or to freedom of expression, to the right to equality, the right to vote possibly. These are all core guarantees that are found in most bills of rights. There are other aspects of the Charter that are unique to Canada, and that would include, for example, the language rights provisions of the Charter. As Dean Lucki mentioned, the Charter is constitutionally entrenched. That means it's supreme law, and that laws that are enacted that are inconsistent with the Charter are of no force or effect. The Charter also prohibits state actors from violating rights, and so that means that state actors must conduct themselves in ways that are compliant with the Charter. And so that brings us to another important foundational point, which is that the Charter binds state actors. And what that means is that the state is bound to respect constitutional rights, but there aren't rights that are held as between private parties. Some of the rights and freedoms that you'll hear us talk about today are -- include the fundamental freedoms, so freedom of expression, freedom of association, freedom of peaceful assembly. These are the core rights that are engaged in the context of a public protest. But there are also rights here that may not be immediately obvious, but which form an important part of the discussion. And so those include section 7, which is the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice and section 15, which is the right to equality. To the extent that arrests or detentions were made in connection with the protests, the rights of accused persons found in section 7 through 14 of the Charter are also relevant. So what do these rights mean? How have they been interpreted? Well, the meaning of the Charter and of individual Charter rights has developed over the last 40 years, largely through adjudication in the courts but also through the involvement and interpretations of political actors. And I think it's fair to say that in complex situations like the ones that gave rise to the convoy, there are complex rights issues. And so in discussing how Charter rights were implicated as part of the convoy, it's important to surface all relevant rights, the rights that were potentially violated as the result of the state response, but also the rights that were protected by the state response, because I think it's clear that the state in response to public events like the ones that we experienced have an obligation to respond in some way. And so I'm going to turn things over to my colleague, Professor Mathen here in a moment, but perhaps I can sort of set things up a little bit by saying that Charter issues when they're adjudicated are adjudicated really in two stages. And so at the first stage, the question is are rights engaged, have rights been limited. And if there's no rights violation, that's more or less the end of the story. If a right has been violated, the second step in a Charter analysis is whether any limits on rights have been justified. And so I've really been speaking about that first stage of the analysis and I'll turn things over to Professor Mathen to speak about the second stage.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I was just going to add that I think that you’ve both captured very well the sort of value of protest in a democratic society and the importance of nurturing it. You know, my sense is that where the challenge lies is in, you know, first defining the contours of a right to peaceful assembly, but then also sorting out how the state should respond when a protest implicates the rights of others. And so I think there is a wide degree of consensus on the value of protest in a democratic society. What becomes genuinely challenging is how the state responds in circumstances where parts or all of a protest become violent; where a protest interferes, to some degree, or to a substantial degree, with the security and safety of others. And so I think the real challenge for decision-makers, whether that’s the state in the first instance, or a court on judicial review, or an inquiry reviewing these matters, is, you know, how do we do what Professor Mathen alluded to in her discussion of section 1, which is; how do we balance the competing rights and interests that are at stake in the context of a public protest? And, you know, to me that’s where the difficult work is.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Just a short point on this question of reasonable limits on freedom of peaceful assembly. I think in thinking about reasonable limits, it will be helpful for us to try to move beyond what I think is a very common binary in our thinking about protests, which is you either allow the protest to continue, or you shut the protest down. And one of the important components of the section 1 analysis is to examine whether a limit on rights is minimally impairing. Whether it impairs no more than is required to meet its objective. And it seems to me that there are, you know, points on the spectrum that our discussion often fails to capture. And so you do see, if you look at the very little bit of case law that there is on freedom of peaceful assembly in Canada that, you know, one option is to allow an assembly to continue to during specified hours or in -- under different conditions than the assembly -- than the conditions that originally surrounded the assembly. And so to me, this sort of moves our discussion away from either full protection of this right, or sort of full violation of this right to a space where we can consider is there a way to still give meaningful affect to freedom of assembly, while also recognizing that, you know, as Professor Moon said, as time goes on, if there are elements that are, you know, potentially violent or, you know, highly disruptive to the safety and security of others, are there options there that still allow for substantial preservation of the right?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I was on the list for a slightly different point, so perhaps I’ll just cede my time to Professor Cameron.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
One small point, just in making this, you know, sort of factual assessment of the nature of an assembly. I think that social media makes this more difficult in some ways because Professor Bird talked about, you know, what police intelligence might be available, is there national security intelligence that's available. You know, I think there's also this question of how the protest is understood in the public, in the media. And on social media, there is the potential for a small number of leaders to really - - to be the face of a protest. And so I think one of the challenges in trying to make this objective determination is, you know, what matters? Is it what's happening on the ground, is it what the, you know, the police information tells us, is it what seems apparent on social? And, you know, in many ways the democratisation of social media has been very positive. I think it can also, though, perhaps, like, skew our assessment one way or the other, frankly, in terms of trying to characterise the assembly as a whole. And given that this plays an important role in determining the scope of constitutional protection, I think that that is something worth reflecting on.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I was just going to add that one of the things that we have been discussing and will continue discussing in this conversation is the extent to which, you know, because, as Professor Cameron points out, there is so little case law on freedom of peaceful assembly, when we're looking elsewhere for guidance, one of the places we tend to look is at the way that the court has addressed other fundamental freedoms. And here, on this question of violence or threats of violence, the freedom of expression jurisprudence has moved from saying that, you know, it's only physical violence that is sort of excluded from freedom of expression where there is communicative content, to including threats of violence. And so in terms of thinking about what the scope of peaceful assembly would be, you know, my sense is that's a fairly strong authority for treating both threats of violence and actual violence as being not peaceful for the purpose of 2(c). My sense is the question that comes out of some of the submissions of the parties and from some of the material that Professor Cameron canvasses in her paper is, is there something more than that beyond threats of violence? Is there something about disruption, inconvenience that also would take a protest outside of the scope of being peaceful? My impression, though, and you know, perhaps this isn't shared by the panel, is that it would be, you know, surprising if a right to peaceful assembly did not take account of threats of violence, and that the standard for rendering a protest not peaceful is actual physical violence. I think that would be out of keeping with the kind of -- the freedom of expression jurisprudence and the direction it's taken for much the same reason, for -- or which, I guess, informed by much the same rationale as one would see in the context of peaceful assembly.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Just to say that I think this comment about the point at the moment in time is quite important, because actually, the requirements of justification under section 1 may well be shifting as the situation evolves; right? And so this is -- my colleagues, Colleen Flood and Brian Thomas, have done some very helpful work on, you know, in an emergency, in a situation like this, you know, what is the court's response or what's the response, you know, of the state, it has to be connected to what's actually happening, what the facts are. And so that includes, you know, like the situation in what's justifiable in the first 24 hours of the protest will be different than what's justifiable in Week 1 and Week 2 when you start layering in significant disruption and concerns about, you know, the health and safety of others, like this shifts, the kind of -- the complexion of the justification analysis. And so actually that element of time is quite crucial and changes sort of what's permissible; right? And that, you know, also changes the state's obligations I think; right? So in the -- at the beginning, there is very little information about a fluid situation, the government has to make a call, they have to act, and they're entitled to act on the best information available to them, and they may not get it perfectly when they're trying to balance the interests of the community. And I think cases like Irwin Toy, which Professor Mathen sort of -- you adverted to without naming the case, but you know, is also in Professor Moon's paper, it -- they're very clear that in theses complex situations the government is entitled to act without full knowledge, sort of in good faith. But as time goes on and more information becomes available, then the situation can change, and sometimes the state is under an obligation to kind of adapt its initial assessment of the situation.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I mean, I'd be very curious to hear the thoughts of others, but it strikes me, you know, at first blush that that type of provision might well be - - might be overbroad; right? And so section 7 of the Charter provides that individuals have a: "...right to life, liberty and security of the person and [a] right not to be deprived thereof except in accordance with the principles of fundamental justice." Now, to the extent that those provisions prohibit individuals from being in an area at all, they may -- you know, one of the principles of fundamental justice is that laws not be overbroad; right? They shouldn't capture more people than the objectives of the provision are aimed at. And so it may well be that that's the kind of provision that that provision wasn't sort of sufficiently tailored. That's a possibility.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Okay.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
And were those criminal ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
--- are those -- were those criminal prohibitions?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Yes.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
You can move on if you'd prefer.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I don’t want to drag on the discussion, but there are actually just two very small points that I think are relevant to this overall discussion. One is that violations of section 7 are very rarely saved under section 1 of the Charter. So once established, they’re very rarely found to be justified. But to the extent that the Courts have suggested that there’s an opening for finding section 7 violations to be justified, it’s in an emergency situation. And so, you know, one of the things to recognize might be that, you know, we may acknowledge that on the face these laws were overbroad, but this very important context that my colleagues have been speaking about is relevant under section 1, in terms of understanding whether, you know, a degree of overbreadth, which would normally not be permissible, might, in a specific context, where a declaration of emergency has been made, in a time limited way, be found to be justified. And so that, I think, is important. Another quick thing though that may be intentioned with this is, as my colleague, Professor Bird, pointed out, the Emergencies Act is pretty clear that the Charter continues to apply. And so there is a bit of a tension. All Charter analysis is contextual, does take its colour from the circumstances, and here the emergency is part of the circumstances. But to my mind, that type of argument also has its limits because the Emergencies Act specifically keeps the Charter in play, and in fact, the model of emergency control that we have adopted incorporates the Charter as an important safeguard. And so to me, that means, you know, I’m glad I’m not the one making the decision, because there is -- there’s a tension in there.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci, beaucoup. Good afternoon, Commissioner. Bonjour tout le monde. I'm Professor Vanessa MacDonnell from the University of Ottawa, Faculty of Law, where I am an Associate Professor and Co-Director of the U Ottawa Public Law Centre. I am moderating this afternoon's roundtable, and we have five experts joining us this afternoon. In person, we have Dr. Ambarish Chandra, Associate Professor of Economics, University of Toronto; Dr. Philip Boyle, Associate Professor in Sociology and Legal Studies, University of Waterloo. Puis en ligne, nous avons Florence Ouellet, économiste junior pour François Delorme Consultation, étudiante en économique, cheminement économie politique, à l’Université de Sherbrooke; François Delorme, professeur adjoint au Département des sciences économiques à l’Université de Sherbrooke et PDG de François Delorme Consultation. We also have Professor Kevin Quigley joining us, who is Scholarly Director of the MacEachen Institute for Public Policy and Governance, and Faculty Member at the School of Public Administration at Dalhousie University. And I hope I've just established my Maritime credentials by pronouncing MacEachen properly. Cette table ronde porte sur les infrastructures essentielles, les corridors commerciaux et la circulation des biens et services essentiels au Canada. The experts will discuss today questions around what critical infrastructure and trade corridors are, their risks and vulnerabilities, who is responsible for managing these risks, and what gaps and tensions arise in the governance of critical infrastructure and trade. So because we have a group that is, you know, partly in person and partly online, I am going to do my best to make sure that we're all actively engaged in the presentation, but I do ask your indulgence if it turns out that, you know, working between these two mediums, media proves a tiny bit challenging. Okay. So we are going to begin this morning by talking a little bit about the basics, some definitional questions, and we're going to start with the question of what critical infrastructure is, and on this question I will begin with your, Professor Boyle.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Boyle. So we’re hearing that here are a wide range of sectors that are considered to have critical infrastructure. Going to you, Professor Quigley, can you perhaps elaborate on some of these threats to critical infrastructure that Professor Boyle has identified?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Quigley. At this time, would any of the panellists like to provide additional remarks on this first theme? Okay. So -- and I believe we’re going to come back to this discussion of risk as we get further into the discussion and talk a bit more about how risk is evaluated, and how that needs to factor into the policy response to these threats to critical infrastructure. D’accord, maintenant on va… j’ai une question pour monsieur Delorme et madame Ouellet sur la question de qu’est-ce que c’est qu’un corridor commercial, et peut-être je commencerai avec monsieur Delorme.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui, on vous entend maintenant. Merci.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci, Monsieur Delorme. Professor Chandra, there are two issues that were raised that I'm hoping you might be ale to elaborate on here a little bit. The first is how trade corridors in Canada are defined by trade networks with the U.S., and then the importance of truck trade was also mentioned, and I'm hoping you might be able to speak to that as well.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. So I'm going to push you a little further into the conversation here, Professor Chandra, because the Ambassador Bridge is critical to the discussion here at the Commission, obviously played an important role in the events that gave rise to this Commission, and we know that the bridge was blocked for a period during the events that took place. So I'm wondering here if you can, you know, tell us a bit more of the backstory, you know, how is it that Canada and Ontario became so dependent on the Ambassador Bridge as a trade corridor?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Okay. Thank you, Professor Chandra. I'd like to invite those who are on the screen with us to contribute to this discussion. Monsieur Delorme, Madame Ouellet, Professor Quigley, would you like to add anything at this moment about the significance of the Ambassador Bridge as a trade corridor?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Okay. Madame Ouellet?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Monsieur Ouellet (sic), est-ce que vous voulez ajouter quelque chose?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Ah, pardon! Pardon.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci. Professor Quigley, I see that your hand is up. Would you like to add something here?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Great. I might come back to Professor Chandra to ask you just a bit about how these concepts are relevant in the context of the trucking industry and in relation to the Ambassador Bridge and the situation in Ontario generally.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. Okay. Thank you. So we’re going to move now into what I might call the kind of policy side of our discussion where we’re going to go a little bit deeper on the tools that currently exist to protect Canada’s critical infrastructure, trade corridors and the flow of essential goods and services, but also to sort of examine those existing tools with a critical eye and to ask whether there are governance gaps and challenges that need to be addressed. So I think I’ll start with you, Professor Boyle. Do you want to talk a little bit about the existing tools that are in place?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Boyle. So you've introduced two themes here that we're going to take up in a little bit more detail, and the first is the sort of multi-level governance issues or the federalism challenges that are associated with protecting critical infrastructure. And I know that there is a separate discussion, separate panel which is going to be devoted to some of the federalism issues, but we will expand on those a bit today. And the second issue is the public/private divide and the fact that a great deal of critical infrastructure is actually in private hands. And in fact, in the discussion that we were having leading up to this panel, I think one of the things that was suggested in the discussion was that sometimes when it comes to, you know, a single piece of infrastructure there may be aspects of that infrastructure that are public and aspects which are private. So sometimes the sort of ownership of the infrastructure is complicated, or once you layer on the regulation there is sort of a complex picture of public and private. So I'd like to next go to Professor Quigley, and I'm hoping that you might elaborate a little bit on the significance of the fact that so much critical infrastructure is in private hands.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Quigley. I think this is a bit of a theme of these policy discussions that it's complicated, and I think you very usefully started to deconstruct the private sector a bit for us and to point out that, you know, the private sector contains a number of different entities, including, you know, from the large telecom company, for example, to the small trucking company or perhaps even the individual truck driver. I think that takes us back quite naturally, then, to the question -- the specific questions around the Ambassador Bridge. And I’m wondering, Professor Chandra, if you want to talk a bit about perhaps the regulatory challenges that the kind of fractured nature of the trucking industry poses. But then I guess the flip side that Professor Quigley has also identified is that fractured nature of the industry might also decrease the risk that in an emergency there’s going to be a widescale disruption in the industry.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Okay, thank you. I’m wondering if any of the other panel members would like to offer a comment before I see Madame Ouellet.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci. Monsieur Delorme?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
On ne vous entend pas. Pardon.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci. So Professor Boyle has given us a sense of the existing tools that Canada has to protect its critical infrastructure, and we’ve also talked a bit about the challenges that exist or some of the gaps in governance of critical infrastructure and trade corridors. Now we’re going to move to perhaps another tension that exists, or another challenge, which is the protection of critical infrastructure in circumstances or in ways that are also respectful of individual rights and freedoms. And so Professor Boyle, I’m wondering; you touched on the possibility of a tension between robust regulation of critical infrastructure and freedom of expression, freedom of peaceful assembly. So I’m hoping now that maybe you can flesh that out a little bit.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. So I think you're echoing some of the discussion yesterday in underlining the importance of the right to peaceful assembly in a democratic society and the importance of safeguarding that right. And I think as we discussed yesterday, you know, one of the challenges that exists is, of course, how we ensure robust protection of these rights while also addressing situations where the exercise of those rights runs up against other compelling state objectives or the rights of others. And so thank you for introducing the way that critical infrastructure is related in important ways to this conversation. Professor Quigley, on the theme of it's complicated, I'm wondering if you might weigh in here a little bit to talk about how different types of critical infrastructure might present sort of different challenges in terms of regulating in ways that are protecting of Charter rights and, you know, free expression and the right to peaceful assembly in particular.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Quigley. I’m now going to bring Madame Ouellet into the conversation to help us understand what is, perhaps, the sort of other side of the coin. So we’ve talked about the importance of robust protection of rights; rights to protest, rights of free expression, and now I’d like to take us to a discussion of the types of public interest that might justify the limitation on rights, and how we might evaluate those public purposes. And where I’m going here, Madame Ouellet, is that earlier you introduced this concept of supply chains, or the kind of -- the complex interrelationship between aspects of the supply chain. And this suggests that a disruption to one part of the supply chain can cause this chain reaction sort of across the supply chain, in terms of disruption and the like. So I’m just wondering if you might be able to talk a little bit about, you know, what those effects can be, where you have a piece of critical infrastructure that is shut down, for example, by a public protest.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui. Merci. I mean, I can’t help but just sort of jump in here, in my own capacity as a constitutional law scholar, to say, you know, I think one of the challenges in all of this is identifying whether these -- the disruption of the type that you’re talking about, whether this -- these are sort of economic interests alone that are being disrupted, or whether there’s more to this than just economic considerations. And that’s, of course, relevant because under section 1 of the Charter, under our constitutional analysis, the courts have been very reluctant to conclude that economic considerations alone are sufficient to justify infringements on constitutional rights. So my sense is, you know, one of the challenges for the Commission is how we characterize the nature of the disruption when it comes to the Ambassador Bridge, in particular, where the -- you know, certainly economic interests are very strongly at play. But there may also be considerations that go beyond that. All right. So ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oh, pardon.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui, oui, s’il vous plait.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci beaucoup. All right. So I have a couple of other questions. What I’d like to do, though, now is I want to make sure we have lots of time to gather the panelists’ recommendations for the Commission on some of the things that we’ve discussed today. And so what I’d like to do now is turn the discussion to, you know, what we need to be thinking about at a policy level going forward. We’ve started some of that discussion, but, you know, in light of the stakes, the economic impacts, but also the relevance to rights, how should we be thinking about critical infrastructure and trade corridors, moving forward? Que devons-nous retenir de cette table ronde jusqu’à présent? Professor Chandra, I will go to you first.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Can I just ask you a clarification question to get maybe, you know, just a bit more precise on what this might look like, as a non-expert? So you said the Gordie Howe Bridge is, you know, just another bridge. What are -- like what are the alternatives to more bridges? So when you say at the margins could we diversify, can you maybe just tell us a bit more about what the options are?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Got it. Okay, thank you. That's very helpful. Let's continue with the folks who are in the room, and then we'll go to our colleagues online. Professor Boyle?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. One of the things that we talked about yesterday is sometimes we tend to think about the right to assemble or the right to peaceful assembly in binary terms. So, you know, either you are fully allowed to protest without condition or it you get sort of shut down, and the importance of thinking about that in-between, which allows, you know, substantial realisation of the right or recognising the existence of compelling interest. And to me, your comments are very much in this vein, you know, the need to be very careful about thinking about how these rights are restricted, and particularly, you know, the importance of thinking carefully about, you know, ex anti, significant ex anti-restrictions on protest, which I think in the context of critical infrastructure is maybe something that's on the table to a degree that it's not in other contexts. And so I think you're raising something that's very helpful that wasn't part, perhaps, of our discussion yesterday.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Please. Yeah.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. This is really helpful. One of the questions that has come to us through this process is actually exactly what you've just mentioned, which is, you know, should municipalities, should Indigenous governments play a greater role, particularly since they're often the first responders in ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
--- in this kind of situation.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Great. Okay. So now let's move to the folks online. Professor Quigley, do you want to sort of jump in here? One of the things that we've been discussing today are -- is the challenge and the importance of coordination when it comes to emergency response, and I'm hoping that you might be able to talk a little bit about, you know, can we do better in this area when it comes to coordinating emergency responses where critical infrastructure and trade corridors are impacted.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Quigley. I'm going to go to Mme. Ouellet and M. Delome in a moment. There are a couple of things though that arise from your comments, Professor Quigley, that I think are perhaps worth pursuing just briefly with the rest of the panel. So one is, I just want to note that you've introduced another dynamic here with your comments. We had talked about the sort of multilevel governance challenges. We had talked about the public/private challenges, but you've also now introduced rural and urban as another dynamic for us to keep in mind in thinking about critical infrastructure, and I just want to note that as important. The other piece here is, you know, this question of do we need more central coordination when it comes to the protection of critical infrastructure. Do we need the equivalent of a FEMA in the United States? You know, to what extent should we be thinking about something like that? And one of the questions that came through to us that I'd like to put to the panel as a whole now is in thinking about the ways that we protect critical infrastructure, you know, how in your opinion do we balance the use of kind of emergency planning tools with other regulatory tools, right, more general regulatory tools? So to what extent do we want to treat critical infrastructure as being related to emergency planning, and to what extent do we want to think about it as being, you know, something that we need to think about regulating in perhaps a more proactive way, in a way that focusses on the strength of our infrastructure. Monsieur Delorme, est-ce que vous aimeriez offrir un commentaire sur ce sujet-là peut-être?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
D’accord. Alors, peut- être…
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
OK. Parfait. Professor Quigley, do you want to come in on this point?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. Professor Chandra, would you like to jump in here?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. Just continuing then with the folks in the room, Professor Boyle, would you like to add something here?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Boyle. Et merci, Madame Ouellet et Monsieur Delorme pour votre patience. J’aimerais maintenant vous inviter de — peut- être on pourrait commencer avec monsieur Delorme — offrir des commentaires, des suggestions pour le commissaire au sujet de qu’est-ce qu’on devrait retenir de cette discussion en bref.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci beaucoup. Now, Professor Quigley, is that an old hand, as they say, or did you wish to come in and offer something? You’re muted. I was hoping I was going to get to say that.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Yes. No, I think, you know, we’re getting our final points on the table, and you should feel free to speak to that issue.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you, Professor Quigley. So we have about five minutes left, and so I might take us to one final question -- possibly two if it goes quickly -- that came to us through a Commission Counsel. And this one deals -- well, both questions -- we’ll see if we get to them -- deal with the mechanics of critical infrastructure protection. So the first question is that critical infrastructure is located where people live, work, play, and study. And, you know, what does that mean for how critical infrastructure should be protected so as to ensure the interests and needs of the local communities or the host communities in which they’re located. So this isn’t a question that you were prepared for, but I think, you know, it’s possibly an interesting one for us to explore, and I’m wondering if there is anyone who would like to kind of talk about this idea of host communities; communities that are home to specific types of critical infrastructure and their -- what their stakes or interests are in regulation.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Merci beaucoup. Would anyone like to add something here? Professor Quigley?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. So that maybe this -- on this question, you know, it sort of cuts both ways. On the one hand, those local communities need the infrastructure, but they also have interests that -- in those communities that may well give rise to protests, or strategic interruptions of that infrastructure.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. Okay. So I think we’ve come to the end. I won’t attempt to squeeze another question. I think we’re better to cut -- sort of close on time. I can turn things over to the Commissioner to close the session?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Yes.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Would you like to say something before I begin, or we can -- okay. Well, welcome back everyone. Thank you.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
It’s true.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Monsieur Delorme? He might be there without his camera on.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Le voilà. Rebienvenue. So we have a series of questions that I’m hoping I can take you through in the next 30 minutes or so. And I think we’ll begin with the concept that perhaps hasn’t really been discussed today, and perhaps doesn’t even exist. And so the question for you is, you know, should this be something that we’re conceptualizing; and that is, international trade corridors. So we’ve talked generally about trade corridors today; we’ve also talked about the Ambassador Bridge, but we perhaps haven’t surfaced sufficiently the fact that there is an international dimension and that many of the trade corridors we’ve been talking about today are corridors that involve, not just multiple Canadian jurisdictions, but the United States. And so my understanding is, to date, in the policy and in the sort of legal thinking there isn’t this notion of an international trade corridor, which would be a concept that perhaps has distinctive characteristics; that differentiate it from trade corridors that are fully within the borders of Canada. And so I’d like to invite the panellists. Si vous avez des commentaires sur ce sujet, est- ce qu’on devrait commencer à penser à ce concept-là de façon plus profonde, peut-être? Oui, s’il vous plait, Monsieur Delorme.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Oui.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Mm-mm.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Mr. Chandra, would you like to come in here?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. So I think -- you know, I think that you're right, that in talking about this being a literal trade corridor it is an international trade corridor. I guess the question is or one of the issues that arises is this raises complex jurisdictional issues, then, in terms of how you protect that infrastructure and sort of who's in charge, and that there may have been -- it may be the case that, in fact, rather than, you know, being a technicality the perception about where a protest is happening might very well impact the view on the ground about who is in charge, and that perhaps, you know, are there ways of thinking about this which might give -- permit jurisdictional coordination around issues of common concern. So thank you, Professor Chandra. Je vois maintenant monsieur Delorme?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Professor Quigley, and then Professor Boyle.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
And Professor Quigley, not to put you on the spot, but are there existing regulatory mechanisms or tools that permit those sort of what might be considered jurisdictional constraints to be overcome in a space where, you know, there are multiple overlapping jurisdictional interests?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Professor Boyle?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
So maybe this takes me to a follow-up question, which is we've talked at some length today about, you know, the need for coordination across government or between levels of government. What you're suggesting sounds like it raises an additional possibility, which is to think -- you know, approach these issues from the bottom up, and to think about the level of jurisdictional coordination that might be required around a particular piece of critical infrastructure. And I'm wondering if anyone has thoughts on that model? You know, would it be helpful to have a plan in advance in thinking about, you know, strategic planning around the protection of critical infrastructure, so that it's clear, you know, when it comes to a particular piece of critical infrastructure, who does what in the event of an emergency. Do you want to come back ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
And does that also maybe look like, you know, thresholds? Like given your concern for freedom of expression and freedom of peaceful assembly, does that maybe look like thresholds for triggering some sort of, you know, restrictions on protests around critical infrastructure rather than sort of a standing sort of restrictions?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. Professor Quigley?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Anything else on this point? Okay. So I'll move on to another question, then. We've talked only a bit about rail, and so I'm wondering, you know, are there considerations that are particular to the protection of rail as a piece of critical infrastructure? Perhaps because it is a significant, sort of physical piece of infrastructure that runs throughout Canada, or because particular groups are particularly likely to protest by disrupting rail. So I'm just wondering if the panel has any comments that it'd like to offer on the protection -- the unique considerations related to the protection of rail?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Professor Chandra. Only just for the transcript. Thank you.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. Professor Boyle?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. Professor Quigley?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
And I'll ask everyone to speak slowly if you don't mind.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. Anyone else on that point? Okay. So I'd like to turn us or take us now to yet another form of infrastructure that we touched on, perhaps briefly, but to any great extent, and that is cyber infrastructure. And you know, wondering whether we have the regulatory tools that we need to deal with threats to Canada's cyber infrastructure. Professor Boyle?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
This is your moment.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
And maybe just a follow- u p question. Are there different considerations at play when we're talking about domestic threats to cyber infrastructure as opposed to foreign threats, or are there different regulatory tools that we need? And perhaps I'll go to you first, Professor Boyle, and then to Professor Quigley.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I can go right to Professor Quigley, then. Oh, you're muted, Professor Quigley.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. I think we - - oh, Professor Chandra?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right. Thank you. We have time for one more question, and it's for you, Professor Boyle. So you noted earlier in your comments that you had concerns with the way that provincial laws placing restrictions on protests in the vicinity of critical infrastructure were drafted, and that those are not a good -- they don't represent a good model of protection of critical infrastructure while balancing civil rights. Do you have any suggestions for what a good model would look like?
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
I think I'll just close by saying that the point you're making is perhaps related to that one of the panels that will be held later this week on law enforcement. I understand you to be saying and having said earlier, that, you know, we have to think not only about sort of what's in the law, but the way it will subsequently be ---
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
--- used by law enforcement. And I think I heard you sort of suggest that there is a concern that you create a broad power and that then vests the law enforcement with discretion about how that power is utilised, and there is a concern that where there is substantial discretion there is a potential for selective enforcement.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Right.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you. So we are at the end of our time. J’aimerais remercier tous les panélistes. I'd like to thank all of our panelists. And I will turn it over to the Commissioner to close the session, for real this time.
-
Vanessa MacDonnell, Prof. (Law – University of Ottawa)
Thank you.