Senator Coyle: Senator Gold, thank you very much for your clear speech kicking off this serious and historic debate. And thank you to my colleagues from all sides in this chamber for your important questions.

I was disappointed we were prevented from having a well‑moderated Committee of the Whole with the ministers associated with the Emergencies Act as part of today’s sitting. I found the briefing last evening and questions asked by my colleagues to be very helpful as we individually and collectively work to understand the situation leading to the Emergencies Act being proclaimed and the implications of that.

The following is the question I had wanted to ask the ministers last night: You have said the government was reluctant to invoke the Emergencies Act, and it plans to end it as soon as possible. You mentioned the government is in regular, sometimes hourly, communication with law enforcement and other sources of intelligence about the situation of continued risks and threats.

Now, I would like to look at a future scenario. Let’s say, based on satisfying the reasonable grounds that have been discussed, the Emergencies Act is revoked sometime between now and the 30-day mark. We know there is a highly sophisticated, well‑connected, well-resourced organization endowed with highly effective communications capabilities behind the recent occupations and blockades. That is not in question. But it worries me. What if they were to regroup quickly after the revocation of the act and act again in illegal ways to cause further serious harms of a similar or worse nature and/or magnitude to the ones caused recently? Are there new non-Emergencies Act measures and tools being developed now, or is there a plan to quickly develop those by the government and its counterparts to fill the gaps that caused us to have to use the Emergencies Act now for this first time, or would we be in a position of having to proclaim the Emergencies Act as the only response again? Thank you.

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 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.

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.

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.