Senator Gold: Thank you for the question, senator. I was in Montreal at the time. I was 20 years old and saw the army in the streets. I was with some friends who were arrested. As you pointed out, the Emergencies Act has nothing to do with the War Measures Act. The actions taken here in Ottawa also have nothing to do with the old legislation.

I tried to explain why the government determined that there were reasonable grounds to believe that declaring a public order emergency under the act was necessary.

The only thing I want to add is that, as I’ve said many times, I’m not in a position to share information received from our law enforcement agencies or intelligence services, nor can I share any advice they may have provided to the government. However, there are so many things that are already public and that demonstrate that there were indeed people, not just those on the fringe of what happened, but behind what happened, who are prepared to use violence and prepared to encourage others to come to Ottawa to destabilize or even overthrow our democratically elected government.

We know there were people there who belong to racist groups and extremist groups, and this information is publicly available. So, once more, according to public information that everyone is aware of, the government had enough evidence to warrant using the act.

Senator Gold: Perhaps I misunderstood the question, but I’ll try to answer nonetheless. First, in a democratic country like Canada, neither the government nor Parliament directs the police. Every government must act within its own jurisdiction.

By the way, because you mentioned something earlier, I want to say that the legislation is very clear. It is not necessary for every premier or every province to agree. The text is very clear: There is a duty to consult, and if the government decides that there’s a crisis that’s not limited to one province, then it’s simply required to hold a consultation, and that is what happened. Only if an emergency that needs to be dealt with exceeds the normal, ordinary powers of the provinces and is limited to one province, and only in this circumstance, does the legislation require consent from the government concerned.

For three weeks, the government stayed within its jurisdiction and respected the jurisdiction of the police, which it does not direct. Municipal and provincial governments are separate and have their own jurisdictions. It’s wrong to say that the federal government did nothing. On the contrary, it shared information, provided its opinion, and consulted with other government bodies. I would add that, unfortunately, there were several meetings that the Premier of Ontario did not attend. It is not true that the government did nothing.

Respectfully, colleagues, the real issue is not necessarily what the government did in the beginning, during the second week or even before proclaiming the act. The government did what it could in its area of jurisdiction with the tools available to the Government of Canada, as opposed to the tools and other powers at the provincial or municipal levels.

[English]

Senator Gold: Once again, thank you for the question, senator. I’ll respond the same way I did with the first question.

It’s absolutely clear that the idea and objective, not only of this inquiry, but also of the parliamentary committee that will be established, is to ensure that we, as parliamentarians, can take part in each stage of the process to fulfill our democratic duty, which is to analyze, report and make amendments based on the circumstances outlined in the act.

Simply put, there’s no reason and nothing in the act itself that would limit the scope of this inquiry.

I would also add that, as you know, the consultation with the provinces must happen before the Emergencies Act can be invoked.

For all of these reasons, dear colleague, although I can’t give you a more specific answer about the regulations in the provinces concerned, there is no reason to think that this subject would be outside the scope of this inquiry.

I hope that answers your question.

[English]

Hon. Jim Quinn: Honourable senators, my question is for Senator Gold. I wanted to reach back to Senator Patterson’s and Senator Marshall’s questions with respect to the role of the committee and the types of information that would be made available. We know that there’s ongoing, hourly contact with various officials to see what the current situation is. So that type of risk assessment is introducing new information on an ongoing basis. Much of that information, as you’ve indicated, would probably be classified as confidential. Yet my understanding of the committee’s work would be that the Statutory Instruments Regulations will apply, which means that section 15 in that particular piece of paper will list a very confidential type of information.

My question really comes down to this. This committee is important for all parliamentarians to have confidence in the work that they’re undertaking. But wouldn’t the confidence of parliamentarians be enhanced knowing that they have access to confidential information that will better inform their work and, in turn, better inform parliamentarians?

Senator Gold: Thank you for the question, senator. The Government of Canada knows how critical the agricultural sector is to the economic and social well-being of Canada. Indeed, as I think the government has expressed on other occasions and in connection with this, there is no question the measures that are being taken under the Emergencies Act, notably the securing of our borders and trade routes, have enormous significance and benefit to the agricultural sectors, whether it is livestock out West or a huge panoply of products that go across at Windsor and elsewhere in the country.

As to your question, it is true that agricultural facilities are not defined as critical infrastructure, and the regulations do not authorize that to be added to it sort of pro forma. You are also right, however, to point out that there is a mechanism where, were there sufficient senators so inclined to refer that question to the committee to which I referred, it is possible to amend the regulations.

The other point I might add is that provisions of the regulations may, in fact, potentially apply were it to be the case that an unlawful protest and activity have the effect of shutting down a facility or impeding access to a facility, because the prohibitions against such acts are not limited to those that affect critical infrastructure. That’s under section 2(1).

So it is possible that activities outside of a facility could be covered, and it would open to the Senate to amend the regulations to so designate a facility or facilities as critical infrastructure.

Finally, it is still the case that there is the ability under the current regulations to designate additional protected places.

There are tools in the act that could be used, potentially, without change or, if amended, to address the situation you have raised. Thank you for the question.

Senator Gold: I would be happy to communicate that. Thank you.

Senator Gold: Thank you for your question. I have nothing new to report. The ongoing conversations between government, law enforcement and the like continue. There remains an ongoing concern that we are not out of the woods yet, that there are stated plans still afoot to reoccupy and continue the illegal activities. Whether they will be realized or not, let’s hope not.

At such time as the government reaches the conclusion that the emergency is past, of course, we will be the first to know or amongst the first to know. That’s all I really am able to say at this juncture.

Senator Gold: Thank you. That is an important question. You are not the only one preoccupied with the possibility that the calm that we now see may be the calm before other events, whether here in this city, as some have expressed an intention to return, or at our border crossings, as some have expressed as well.

There is evidence that, in fact, the provinces and police forces across the country have learned some lessons from what was allowed to happen here in Ottawa. That’s why there is concern about protests in other cities. Winnipeg has been occupied to some considerable degree. It has been off the national radar, but has been going on for some time. That is why, for example, the initial truck convoys to Quebec City were managed better than the convoys when they arrived here. So there are lessons that have been learned and will be properly studied and evaluated in the context of the inquiry that is contemplated at the end.

As I mentioned in my speech, the federal government is already considering and planning to introduce legislation to expand the scope of FINTRAC so that it covers the fundraising platforms. The world has changed so dramatically, and social media has had a dramatic impact — not only on how it shapes people’s attitudes and inclines and mobilizes them, but in terms of how money gets moved around. Add to that crypto-currency, which we have seen very much at play here. One of the lessons the government has learned is that we need something more durable and enduring that doesn’t require the invocation of these measures.

The details escape me, but I know that there are measures being considered by the Province of Ontario to specify greater powers or the use of existing powers in a more targeted way so that were the situation to arise, they would be able to do their part to resist the return of blockades and the like.

At the end of the day, one hopes that the lessons learned — ordinary measures that all legislatures and Parliament should be thinking about — will be sufficient. But if not, then the act remains there in those extraordinary, last-resort circumstances.

The other point I should have made earlier, and excuse me for the order of my answer, is even when the Emergencies Act is revoked — and we all hope it is sooner rather than later — the investigations and the prosecutions that are underway will continue. Just because the act ceases to be in force — at some time soon, one hopes — doesn’t mean that the illegal acts that were taken, while they were illegal, are forgiven.

One also hopes that the measures taken — and sometimes it is under the Criminal Code — the Emergencies Act supplements the existing jurisdictional framework.

The charges that have been laid, the measures taken to deal with the freezing of bank accounts and so on, one hopes will also provide some disincentive for those inclined to want to continue the project of occupying, blockading and destabilizing our country.

[Translation]

Hon. Renée Dupuis: Will Senator Gold take a another question?

Senator Gold: Yes.

Senator Dupuis: Senator Gold, section 19 of the Emergencies Act gives the government considerable discretionary power, the power to make such orders or regulations as it “. . . believes, on reasonable grounds, are necessary . . . .” The orders or regulations can be used to prohibit any public assembly, and so on. A little further on in subsection 19(3) and paragraph 19(3)(b), it reads, and I quote:

The power under subsection (1) to make orders and regulations, and any powers, duties or functions conferred or imposed by or pursuant to any such order or regulation, shall be exercised or performed . . .

Can you confirm that the review by a parliamentary committee provided for under section 62 — a joint committee of the House of Commons and the Senate — would deal with section 19 and paragraph 19(3)(b)?

In other words, can you confirm that a discretionary power will be exercised and that the measures will have to be taken with the view of achieving, to the extent possible, concerted action with each province concerned? Can you confirm that this particular aspect of the act will be part of the parliamentary review committee’s mandate?

Senator Gold: Thank you for this important question, senator.

As you know from reading the Emergencies Act, the legislation provides very little detail in terms of the committee’s mandate or agenda, apart from what is written.

As is done with all Senate committees, I think this will be sorted out as we go along, as long as it is framed by the relevant sections in the act, and it is the committee itself that will determine the topics.

I don’t see anything in the statutory language that would prohibit or rule out a review of that aspect of the act.

I can’t give a clearer answer than that, because there is no specific provision that would prohibit it, apart from what is already written in the act. In my view, if there is no statutory language specifying that it’s outside the scope of this committee, I think the committee will be able to decide exactly what issues and topics will be reviewed.

Senator Dupuis: Senator Gold, to follow up on my first question on section 19, which states that the orders and regulations and powers, duties or functions must be exercised or performed with the view of achieving, to the extent possible, concerted action with each province, can you confirm that with respect to the inquiry — I am no longer referring to the parliamentary review committee — that must be held within 60 days after the expiration or revocation of the declaration of emergency, the Governor-in-Council is required to cause an inquiry to be held, not only into the circumstances, but also into “. . . the measures taken for dealing with the emergency.”

Can you confirm that in this part of subsection 63(1), “. . . the measures taken for dealing with the emergency” refer to a Governor-in-Council decision, which means it is the government that must request the inquiry, not only into the circumstances, but also into the measures taken? Would this also cover the concerted action to the extent possible with the provinces?

Senator Brazeau: I have a quick supplementary.

If I understand the Emergencies Act correctly, if this motion passes this chamber, similar to what the House of Commons did last night, there is going to be an investigation or an inquiry with respect to the “five W’s” pertaining to the illegal occupation. We know that, oftentimes in our democracy, politicians and the police like to police themselves. If passed, will this inquiry actually get to finding answers to the kinds of questions I asked earlier? Thank you.

Senator Gold: Again, thank you for your question.

The provisions of the act set out the mandate, roles and responsibilities of the parliamentary review committee, and it certainly has a role that would survive a motion to revoke the Emergencies Act. However, it appears to be separate and distinct from the inquiry that is contemplated under section 63, which calls for the inquiry within 60 days after the expiration or revocation of the declaration and which also contemplates that the report must be deposited in both houses of Parliament within 365 days. It does not mention this is an inquiry or the task of this review committee.

We have to understand that there are two mechanisms. The parliamentary review committee — as I mentioned earlier and was underlined by our colleague Senator Lankin — largely has a reporting function to keep us apprised if this goes on longer. However, it also has an oversight function.

The inquiry is separate. The inquiry is where we will do an after-the-fact assessment of everything — what led into it. The inquiry is where we will put under the microscope, I expect, the actions of all levels of governments — and police instances, frankly — and learn more, I hope, about what lay at the origins and the heart of this movement that had metastasized, as I said, into an explosion of illegal activities here and elsewhere in the country.

Hon. Scott Tannas: Senator Gold, first of all, let me thank you also for hastily arranging the meeting we had last night with ministers — the informal meeting. It was helpful, and an issue was mentioned. Minister Lametti or Minister Mendicino — I can’t remember which — spoke to the issue of the foundation of the act and its continuance through an emergency. One of those ministers, whichever it was, said that the emergency must continue to exist in order to hold everything up. It is incumbent on the government to determine whether or not the emergency continues to exist. I suspect that’s why we keep hearing this word and have hourly contact with all kinds of people. Those are the words that give us assurance that the emergency still exists. Otherwise, the government is in a position where they must find that the emergency is over and therefore the act must be withdrawn.

Nobody’s been killed in this, thank God. In the entire emergency — all of the activities that have gone on — not a soul has been killed. I’ve actually not heard of anybody in the hospital at this stage. A lady was knocked over by a horse and may or may not have been injured and may or may not have gone to the hospital. It’s incredible — remarkable — and is a testimony to the civility of Canadians, even when they’re hot under the collar, and the professionalism of the police. There are no blockades today. What emergency exists today that convinces the government hour by hour that this has to continue? Never mind the invocation of it. Many of us can understand that. I think there’s a slim majority of Canadians that supported it, according to polls.

However, what emergency exists today other than some secret emergency that you can’t tell anybody about and our oversight committee won’t get to know about either?

Senator Bernard: I have a supplementary.

Thank you, Senator Gold. As we’re considering this motion, how much of that silent encouragement or condoning of the racism and the violence that underpins it should we be taking into consideration as we’re reflecting on our specific, respective positions with regard to this motion?

Senator Gold: First of all, thank you for acknowledging the efforts that we made to make ministers available to senators. I appreciate that, and I hope it was useful to senators.

The Emergencies Act is valid constitutionally under the “peace, order and good government” clause of the Constitution and in the leading case — and there have been many subsequent — that said that if, and only if, there is an emergency affecting the nation as a whole could temporary measures be authorized. That is at the heart of the foundation for this act, as you correctly point out.

I’m not going to be legalistic with you and with this chamber. I have been tempted to say that we’re in a section 58 debate to confirm — thumbs up or thumbs down — whether on February 14 the government had reasonable grounds to believe there was an emergency. I’ve made that case, and I’m not going to belabour the point.

I do understand that seven days into it, people’s minds are asking different questions. Nor, colleagues, have I or will I insist on, “Hey, that’s the wrong question, there’s a section 59 process. If you think it’s over, line up nine other senators, file it with the Speaker and we’re off and running on that.” Indeed, I believe that was attempted in the House immediately upon the vote. I’m not saying that. I understand, we’re all Canadians. We all want this to end.

One more comment, if I may, with respect. I’m not standing up here — and I haven’t stood up here and the government hasn’t stood up here — and saying, “Just trust us, we know stuff you don’t know.” That is precisely not what I said. This is a mature chamber. Yes, we have different points of view. I respect people’s right to believe that the most important thing in this country is to bring the government down. You are entitled to your opinion, and I’ve always tried to answer those questions respectfully, even if at times I bristle.

This is an important debate in Parliament. We are mature, informed, sophisticated people. If you interpret me saying — listen, there are certain categories of information that have never been made public and can never be made public independent of the Emergencies Act. If that is considered to be an inappropriate statement, I stand by it nonetheless. I have confidence in all of us, apart from whatever our differences are, to understand some of the foundations of a free and democratic society and what it requires to remain free and democratic.

To your question, the government continues to believe, based upon the advice — and these expressions are not secret but public — from our police, law enforcement and the chiefs of police, and supported by many academic commentators as well, that the job is not yet done. There is still a concern that time is still needed to ensure that there is not a swift and dangerous return to the situation, whether it’s blockades of bridges or ports of entry or occupations of a city. It is also a matter of public record that those who are still staying not that far from here in Ottawa and elsewhere have expressed a desire, if not indeed an intention, to continue the illegal activities if they’re able to.

So there is public evidence that the risk is not over.

The government re-evaluates the situation on an ongoing basis. As I and other government ministers have said, once the criteria of the act are no longer met, the emergency order will be revoked.

We still see police enforcing protection around the Parliamentary Precinct to make sure that the trucks do not return and to consolidate the success that they had over the weekend. They still believe they need the tools to keep minors away and keep them out of harm’s way. They still need the tools to compel the towing services. They still need the economic measures that are designed to limit financial support for these illegal blockades. They continue to play an important role.

As I mentioned just a moment ago, it is a matter of public record that many of those engaged in the blockade have assembled in locations just down the highway and are promising to return. There is an ongoing need to protect our border crossings and other critical infrastructure. This is not secret information. There are letters from the Canadian Association of Chiefs of Police and the Canadian Police Association. These are clearly short-term measures.

In my response to an earlier question from Senator Coyle and others, there is no question that all levels of government are re-evaluating their responses on the ground. We hope the police in Ottawa reconsider how they responded. Provincial and federal governments are reconsidering, and considering additional legislation in order to better manage the situation.

For the moment, it is the view of the government and the view of the police services, with whom they are in constant contact, that these emergency measures remain necessary. But when the police and security professionals advise otherwise, the government will be more than happy to see this come to an end.

Senator Tannas: I want to ask a question, and perhaps get an undertaking from you, leader, with respect to the review committee. As you mentioned, it’s legally required. Many of us in this chamber know that committees that are legally required sometimes don’t happen. We have the Special Joint Committee on Medical Assistance in Dying that hasn’t been reformed for many months.

You mentioned that your counterpart in the House of Commons has been in discussions. I don’t think we’ve been in discussions. You haven’t been in discussions — at least I’m not aware of it. You have some work to do. I presume that will happen immediately upon this decision if it is to carry on.

I wonder if, on every sitting day that the joint committee is not constituted, you would commit to finding the ability to rise in your place and explain why — every day after this vote — until such time as it is constituted.