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.

Senator Gold: Thank you for your question. That’s an important question. I know it is a preoccupation of many, regardless of their particular cause or ideological perspective.

This act was passed in 1988. It was passed after the Charter was proclaimed and was passed, as many have mentioned — indeed, as I did in my speech — in response to the invocation of the War Measures Act and some of the abuses that took place. These abuses took place not only in my province, but indeed in Vancouver and elsewhere, when journalists and others were rounded up and their civil liberties completely suspended.

I think Canadians should be proud of the work that the Mulroney government did in 1988 to put into place a measure that is much more focused, much more temporary, much more limited, that does not purport to oust the application of the Charter and that provides the kind of democratic accountability that I’ve tried to outline.

Can the act be amended and improved? Of course. Honourable senators who were here when we debated Bill C-59, the National Defence Act — which I had the privilege of sponsoring — know that there were measures put in place in the 1970s and 1980s that need to be updated. There are many reasons to update measures, if for no other reason than technological and societal changes, and changes in the world that needed to be addressed. We did that with Bill C-59. We may very well need to do that with the Emergencies Act.

Again, at the risk of sounding legalistic, today we’re here to decide whether to confirm the government’s decision to invoke the act. There will be time, whether it is in the inquiry or anything that we in the Senate may choose to initiate, to take a closer look at the text of the Emergencies Act to see how it might be improved upon.

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.

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.

Senator Gold: That’s actually a very profound question, and it’s not an easy one to answer.

We live in a free country. People can believe what they want to believe. People believe about my people whatever they want to believe. It’s the actions that are taking place based upon beliefs that matter in a free and democratic society.

What troubles and concerns the government, the police and all who have responsibilities to protect Canadians is that some of the elements and driving forces behind this convoy that have taken hold and mobilized people’s understandable frustrations with life in a pandemic and with life, more generally, in uncertain times — that some of these folks publicly and proudly espouse views about our democratic institutions and our fellow citizens — who may not be “true Canadians” in their eyes — and that some of the organizers and some of the major mobilizers of funds are explicitly on the record with what their agenda is. And it is precisely out of concern that the powers, resources and the will and intention that they have continue to represent a threat that required the invocation of the act and still requires, for the time being, the maintenance of the measures that were promulgated pursuant to that act.

[Translation]

Hon. Patricia Bovey: Honourable senators, I rise today on the unceded territory of the Algonquin to voice my support for invoking the Emergencies Act, which was proclaimed on February 14, 2022.

[English]

Colleagues, this isn’t the easiest speech I have delivered in this chamber. The events which have occurred across this country of the past month have been troubling to me and, indeed, I feel, disgraceful and appalling. And I am worried about Canadians moving forward together.

I want to thank Senator Gold for his full and patient discourse today. With the arrival of the COVID-19 pandemic some two years ago, all Canadians have been living through some of the most difficult days of the last 75 years. This period has been unique. It has seen not only the spread of the virus and its variants, but it has also seen the spread of fear, loneliness and frustration, which has accompanied the virus as well.

The response to the pandemic has put an enormous strain on all of us. Day-to-day living has been complicated, travel has been non-existent for most of us and the most vulnerable in our communities have suffered disproportionately. What has grown most in Canada has been a distance and a disconnect between us. The events of the past month have not only been a result of pandemic fatigue but a growing and more organized voice whose underlying message is truly worrisome. Hardly freedom, despite the name of the convoy itself.

Senators, I believe in the right to protest. There have been many legitimate protests which have had a positive effect on the human condition. We have witnessed Indigenous peoples’ protests regarding missing and murdered Indigenous women and girls and Black Lives Matter protests in Canada, which were conducted with dignity and civility, and the message has been received. While more certainly needs to be done on these issues and those resulting from other protests, action is being taken by governments and society as a whole.

Hon. Marilou McPhedran: Good evening, tansi.

As a senator from Manitoba, I acknowledge that I am a resident of Treaty 1 territory, the traditional territory of the Anishnaabeg, Cree, Oji-Cree, Dakota and Dene peoples, and the homeland of the Métis Nation.

I would like to share a quote from the February 19 edition of La Presse:

They were well within their rights to protest, but not to block the heart of the capital and threaten its democratic institutions. . . .

In an attempt to disrupt the police operation, “patriots” flooded the 911 line with non-urgent calls, endangering the lives of the people of Ottawa.

Some even had the gall to put children between the line of police and the protesters. They used their own children as human shields.

[English]

The so-called “Freedom Convoy” protests were ostensibly marked by a January 2022 regulation mandating truckers and essential workers crossing the border to provide proof of vaccination. The truth is that these protests are less a reaction to this mandate and more a reflection of the general frustration with the pandemic-related restrictions of the last couple of years.

Unfortunately, it has become increasingly apparent that these protests have been appropriated by more radical, politicized voices and elements to the disservice of the majority of protesters, and any legitimate debate has been subsumed by polemically divisive populism.

It is telling to note that with 90% of truck drivers vaccinated against COVID-19, according to the Canadian Trucking Alliance, the majority of the industry is sitting out the convoy protest. The Canadian Trucking Alliance and the Ontario Trucking Association have been vocal against the convoy actions and in favour of government intervention. What’s more, even if the government were to immediately lift the federal vaccine mandate for truckers, a parallel U.S. vaccine mandate, announced last October, for foreign truckers would still keep them from crossing the border. So the cross-border vaccine mandate for essential workers is clearly symbolic rather than central to these protests. Something else is happening here.

I think we can all understand and empathize with the high frustration and uncertainty that many Canadians feel regarding the pandemic. But let us also remember the many more Canadians who have lost over 35,000 of their families and friends.

Restrictions have been imposed and then lifted in ways across the country by federal and provincial governments, and they haven’t always been effectively communicated. A more profound impact on our lives than we could have ever imagined, but let’s be clear and fair. Those same restrictions — clunky, inconvenient, and perhaps from time to time intrusive, as they have been — have helped keep our country’s COVID death rate at about one-third proportional to the United States. Frustration is real, but so too is science, and the health policy and legislating for the common good has been relatively successful.

As many have voiced already, Canadians have the privilege and right to protest and demonstrate. We see this all the time. Some are small; some are large and organized. Most of us have participated in demonstrations from time to time. I certainly know my kids grew up, from the time they were in strollers, being wheeled into demonstrations, and those demonstrations were peaceful. Those demonstrations did not block anybody’s right to their life or to health care or to services that are essential.

However, jurisprudence has clarified that section 2(c) guarantees the right to peaceful assembly. It does not protect riots or gatherings that seriously disturb the peace. Furthermore, it has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities.

We recognize and accept the necessity to balance our rights and freedoms with the rule of law in our democracy. That is the essence of section 1 of the Canadian Charter of Rights and Freedoms, reasonable limits placed by a democratic process.

The protests, convoys and occupations manifested across the country with the underlying issue, supposedly the coronavirus. There’s a global pandemic that has today resulted in the deaths of more than 5.9 million people. In a Canadian context, 45,000 Canadians died in World War II, and more than 35,000 Canadians have died in this pandemic so far, with more dying every day.

This is an issue of public health and common good. This is an issue of peace, order and good government, as is set out in our Constitution.

Yes, there have been limits placed on Canadians, from the mandatory use of masks to limiting group sizes to limits on mobility, and even on business and school closures, but that has been to reduce the spread, not eradicate the virus, because we know that isn’t possible. It’s been done for the common good. It’s been done so that health workers can do their work for people among us who need health care.

We have seen incontrovertible evidence that a combination of medical and technical interventions, and equally imperative individual conscious behavioural changes, are required to effectively counter this or, indeed, any pandemic. The imposition of COVID-related restrictions and health regulations is intended to minimize illness and death in the maximum number of Canadians, and that’s exactly what vaccinations have done.

But none of us has the right to behave as though it isn’t important for someone else to protect their health. This is a balancing of rights and privileges, and a weighing of responsible and proportionate measures to respond to this crisis. In my opinion, the declaration on February 14 fit within the criteria necessary under the Emergencies Act.

When Alberta dropped virtually all health restrictions on July 1, 2021, the cases skyrocketed. Albertans were dying from COVID-19 at more than three times the Canadian average. The province was in crisis because the provincial government did not maintain health restrictions that could have kept its citizens safe. This is an issue that is at the core of what we are struggling with here in this debate.

Much of the power that has been objected to by many of the protesters actually has little to do with the federal government because of our Constitution, because of the division of powers between the provinces and the federal government.

This is really an analogue to this current debate; whether the invocation of the Emergencies Act is another form of unreasonable and, therefore, unjustified imposition of limits on our Charter of Rights and Freedoms. Yes, in my opinion, it does meet that test for proportionality and reasonableness as set out so clearly in the Oakes test by the Supreme Court of Canada.

Specific to the invocation of the Emergencies Act, I am convinced by the evidence that these protests moved beyond peaceful assembly, and the open demonstrations of citizens has been, unfortunately, hijacked by radical elements that have been using and continue to use these demonstrations to foment the movement to ferment, infiltrate, spread and move into areas that are potentially far more sinister.

To extrapolate out words from what we have seen in these past weeks, by which I refer to the border blockades and deliberate crippling of infrastructure; to weapon seizures and the charges of conspiracy to commit murder in Coutts, Alberta; to the occupation and siege of Ottawa; the documented organizational involvement of active and former military police, as well as individuals known to have deep connections to extremist groups publicly proclaiming that they want a racial war, publicly proclaiming that if there isn’t this kind of insurrection, then we will all soon be forced to speak Hebrew.

The intelligence assessments prepared by Canada’s Integrated Terrorism Assessment Centre are pertinent to this discussion. They warned in late January that it was likely that extremists were involved, and they said that the scale of the protests could yet pose a “trigger point and opportunity for potential lone actor attackers to conduct a terrorism attack.”

I remind you that according to section 83.01(1)(b)(i)(B) of the Criminal Code, terrorism is an act that is committed:

in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act . . .

We could think, for a moment, about the entire closure of the Rideau Centre in downtown Ottawa as just one example.

It is understood that demonstrations always tend to attract some extreme individuals and groups, but the apparent level of coordination and integration, as reported by ITAC and observed by other policing and security agencies, indicates clearly that this occupation has moved far from the original intentions of many of its participants. Extremist attitudes have instead infiltrated, derailed and co-opted the original voice and intent of the majority of the protesters. This irreparably changed the convoy from a peaceful assembly to something calculated and dangerous.

I want to focus my remaining remarks on some oversight and control measures provided for in the act, in particular section 59, which provides for only 20 members of Parliament and 10 senators to come together for an early end to the use of the declaration under the Emergencies Act, and section 62, which mandates the parliamentary review process.

On section 62, I wish to highlight a number of facts that are troubling and which I hope we will ensure that the parliamentary inquiry will study.

One, the presence and apparent organizing leadership of active and former Canadian Armed Forces members, as well as active and former police. Two, the presence, positioning and safety of children within the protest and how this affected policing decisions and actions. Three, the double standard in how the police have responded to the actions of this group compared to a very different use of force and arrests at some Indigenous and climate justice protests or, indeed, has been mentioned at the Toronto G20 summit. Lastly, the legitimacy, efficacy and precision of employing financial seizures as a reasonable alternative to violence or more aggressive coercive police action.

Honourable senators, many people have commented on the fact of the rather astonishing degree of peaceful dismantling of this siege, and I think we need to pay close attention to the use of the financial leverage in this way and the likelihood that this contributed to the relatively peaceful process that we saw happen in the last number of days.

With grave concern about extension of the extraordinary powers, I note that the Emergencies Act does not suspend civil liberties or Charter rights. It ensures that the Prime Minister and cabinet are not allowed to dictate without parliamentary oversight. Honourable senators, that’s why we’re here. The act requires that the declaration must be tabled in Parliament within seven sitting days of cabinet issuing its declaration.

In closing, may I just say that I will vote in favour of the declaration under the Emergencies Act, and I will also work with anyone who wishes, across all boundaries, to gather together the twenty members of Parliament and the ten senators to begin the process of ending these extraordinary powers. Thank you so much.

Hon. Diane Bellemare: My question is for the Government Representative in the Senate. It’s somewhat in line with what you just said. My first question was about the financial system, and you answered it, so I’ll go on to my next question.

At the source of all this, it is obvious that extreme fatigue has set in when it comes to our struggle against COVID-19. This has led some people to protest, some of whom were likely manipulated by much more organized groups. As we debate a motion to adopt the government’s declaration, we sometimes forget the source of all these protests and the occupation in Ottawa. If Parliament passes the Emergencies Act and supports the government, does the federal government plan to work with the provinces to come up with a plan to lift restrictions, so as not to further alienate many Canadians, especially young people who are done with COVID-19? Will it take a positive approach, rather than just coercive measures, so that we can begin a reopening process that is consistent with that of the provinces?

Let’s face it, if the provinces seem to be ending the vaccine passport system but the federal government decides to maintain it internationally and for truckers, obviously this will cause a lot more frustration. Do you have any thoughts to share about this, Senator Gold?

Senator Gold: Thank you for the question. You raise an important issue that we have been concerned about since the start of the pandemic. The federal Minister of Health regularly speaks and meets with his provincial and territorial counterparts to try to better understand the various issues that come up in a country as vast as ours. Each province has its own jurisdiction and an obligation to act as it sees fit.

The federal government also has responsibilities toward its employees, such as those under federal jurisdiction. Its responsibilities also extend to our borders and so on. I can tell the chamber that these conversations on coordinating or, at the very least, sharing information are ongoing. They were taking place before this crisis, and they will continue going forward.

As we can see, the vast majority of provinces are attempting to adjust their health measures based on their reading of the situation, the needs of their residents, and the scientific evidence on the transmissibility of this wave and the next one that’s coming. At the federal level, the rules also change as the circumstances change. I can assure you that conversations between the federal, provincial and territorial governments will continue in an effort to better manage the pandemic and offer Canadians a sense of consistency. Living in a federation means accepting that there are different rules. For example, the rules in play in Gatineau are different than the ones in Ottawa when it comes to restaurants, gyms and so on. That’s all I can say on that subject.