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.

Senator Gold: Thank you for your question.

As I said earlier, honourable senator, I’m going to be brief, and we will all get a break in five minutes, which is needed.

It’s important. This is an important committee. As I said, I am in regular discussions with the House leader to understand the government’s thinking on this. I will undoubtedly require leave of the Senate, because our orders don’t otherwise give me an opportunity to do that. I will certainly, if it’s the will of the Senate — and with the consent of the Senate — be happy to provide a report. I’m happy to report on the state of affairs. As I said, that will require consent, because once I sit down I’m done.

Hon. Salma Ataullahjan: Senator Gold, I worry about the precedent set by the invocation of the Emergencies Act. As you mentioned earlier, it is unknown what future governments might do in light of a perceived national emergency.

How will the current security thresholds be updated and clarified to ensure the reliable use of the Emergencies Act by future governments?

Senator Ataullahjan: Senator Gold, in your speech you said that this activity was planned for weeks. In response to Senator Marshall, you said it’s not correct to assume that the government was not aware of the threats.

If the government was aware of the threats, and Canadians look to their government to keep them safe, why was nothing done once the protesters were on the streets? Was there any action taken to defuse the situation? Were there any conversations taking place?

Senator Gold: I understand your question. I want to be clear about what I said and didn’t say. Again, Hansard is the test of that.

I didn’t say to Senator Marshall that nothing was done. Whatever I said to Senator Marshall, let me respond to you. The government was aware, and security services undoubtedly were aware, of the threats potentially posed by the convoy once it was mobilized and on the road. The federal government at that point was in communication with provincial and municipal counterparts, as well as law enforcement counterparts. The reason they were in contact was to share information.

When the Emergencies Act was enacted, it gave extra powers to law enforcement and allowed for the rapid coordination of police forces — municipal, provincial, RCMP, to say nothing of provincial police forces from other jurisdictions. That allowed them to mobilize and work together without having to swear in individual officers. These are tools with which the federal government could take action under the Emergencies Act, along with the measures to define and cordon off areas; without the act, it did not have the jurisdiction to do so.

There would be a hue and cry not only in this place but across the country if the federal government, hearing that there were some rather extreme folks trying to encourage and mobilize and fund a convoy setting out to block bridges, ports or occupy a city, says, “Oh, my God, we know these things. So we’re going to take over municipal policing in Ottawa. We’re going to take over the jurisdiction of the Province of Ontario that has jurisdiction over its highways,” et cetera. That’s inconceivable in a federal country like Canada.

With all respect, it is the wrong question to ask, “Why didn’t the government act?” It had certain limited powers. It had a very strong and important responsibility, and it discharged that responsibility by working with other levels of government and police and law enforcement, which must remain independent from government direction. It is sad and regrettable that despite all of that, we arrived at a situation where these measures were necessary.

The Hon. the Speaker pro tempore: Honourable senators, it is now noon. Pursuant to the order of Monday, February 21, 2022, I am required to leave the chair for a pause in the sitting.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gold, P.C., seconded by the Honourable Senator LaBoucane-Benson:

That, pursuant to section 58 of the Emergencies Act, the Senate confirm the declaration of a public order emergency proclaimed on February 14, 2022.

Hon. Pamela Wallin: Honourable senators, my question is for the government leader, Senator Gold. This morning, you said that people who have concerns about what has happened to their bank accounts, be they frozen or that there is some other impact on their economic or financial life, could appeal to their bankers, to other organizations or even to the police. However, it is my understanding that this bill explicitly states that there is immunity from liability for financial institutions.

Senator Gold: Thank you for your question. I don’t think there is any evidence or reason to believe that banks will overreact. The text of the law is relatively clear. The banks have an obligation to review, on an ongoing basis, the activities of their clients that may be implicated in these illegal activities. For at least a decade, they have been monitoring their accounts out of concern for whether there is money laundering or terrorist financing going on.

There is nothing in the act that appears to expose the banks to liability or prosecution that would lead them to overreact. On the contrary, banks make money because they have clients who have accounts. I think it’s in the interest of both the banks and their clients to resolve these issues amicably so that the banks can continue to provide service to Canadians for which they have a right under the Bank Act, if they otherwise comply with the exegesis of the Bank Act and the regulations.

Senator Gold: Honourable senator, it’s a fair question and I’ll answer it. Before I do, I’ll remind senators that for three weeks, the residents of Ottawa with children were literally terrorized and afraid in so many cases to leave their homes. That is on the public record.

With regard to your question, I believe we would all agree that everything should be done to prevent harm to minor children, to keep them out of harm’s way, especially under circumstances where, when these regulations were promulgated and the emergency proclaimed, there was a huge number of people, large numbers with children, present within the area that is now considered to be off limits.

Because the Emergencies Act was proclaimed for many reasons, one of which was to allow for a more coordinated, concentrated and planned use of police forces to, step by step, warn and ultimately take steps to clear the barricade, it is all the more important that minors not be either approached or certainly be placed in harm’s way. It was thought appropriate, and the government thinks it remains appropriate, to create a sort of cordon sanitaire around and approaching the areas that are off limits to provide a clear message not to come to people otherwise tempted to come.

As one senator asked about earlier today, all of these measures provide some inconvenience to residents, just as it provides a measure of inconvenience for us to have to show our ID when we walk here. But it pales in comparison with the risks of the children were they to be allowed to approach an area on the other side of the barrier, on the other side of mounted police, on the other side of police with tools that they have. So I think it’s out of concern for the safety of the children that the measures were enunciated as you described.

Senator Griffin: Thank you, Senator Gold. My next question also relates to minors, but in this case it’s what I would call mature minors. The older children who sometimes want to do things on their own whether their parents know it or not. Why would we be putting the penalty on the adult for the presence of a mature minor? Why is this not mirroring the Youth Criminal Justice Act where young people between the ages of 12 and 18 can be sentenced and receive penalties like adults? I’m sure we all know there were local young people involved in this. They weren’t here with their parents in a truck or other vehicle from away. Thank you.

Senator Gold: Well, senator, the best answer I can provide is that facing an emergency of this kind, with all of the factors unknown, the law has to draw a line. It has to be a clear line. It has to be a line that leaves no interpretation to parents, children or youth, that they are or are not mature. You draw a line as we do in law so often. It’s easy to say, “well, somebody falls on one side or the other.”

What we saw in Ottawa, quite apart from some Ottawa youth who may have wanted to take part in what was going on, and I’m going to use words that are blunt; children were instrumentalized. They were used as instruments. I would go so far as to say that there were some, consciously or unconsciously, that put their children in positions where they were the equivalent of human shields in order to discourage or deter or slow down the police actions of which they had been warned, more than once.

For all these reasons, this was a reasonable response, however blunt, because the law is sometimes blunt and has to draw a line between ages. And mercifully, we hope, this won’t last much longer.

Senator Gold: Well, thank you for your question and your kind words. The mandate of the inquiry that’s contemplated in section 63 in terms of reference, if I may use that term, are fairly circumspect and fairly brief. I’m going to read from it so I can create the framework for my further elaboration. What is contemplated is an inquiry “. . . into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”

The inquiry, like committees in this place and in the other, have broad latitude subject to the terms that set them up. As I said earlier, to determine what issues they want to look at, what witnesses they may want to call, what facts that they want to explore further.

I am confident that a fair reading of this act, in the context of what the inquiry is supposed to provide, is certainly broad enough to look beyond simply the events of three weeks ago or what might have been brewing under the surface, but the larger social, political, demographic and cultural issues that I think underlie many of our concerns.

There is a problem in this country that people face. There are problems that people face that are independent of the protest, that have to do with feelings of being left out of the good life, impacts of globalization. I should stop because the academic in me could go on at some length. Sufficient to say that the inquiry is designed to throw a spotlight on what has happened. If the commissioners or those involved who would constitute the inquiry believe that it’s important to explore what the underlying social causes are, there is nothing in the act that would preclude them from doing that. I think we would all welcome that.

Senator Gold: Although I am not at liberty to disclose the content of conversations, let me say this: At least from what we have seen on the ground in Ottawa and elsewhere, there is no evidence that people of colour, Muslims or other vulnerable or marginalized communities were subject to “extra policing.” On the contrary, those folks, such as you have described here in Ottawa, have benefited from the intervention of the police and from the fact that some of the abuses to which they have been subjected — verbal, physical and the like — are no longer taking place.

Again, these are temporary measures in an extraordinary circumstance. These are not powers that are going to last one minute longer than the emergency requires.

[Translation]

Senator Gold: Thank you for your question, senator. I have absolutely no information to that effect whatsoever.