The Hon. the Speaker pro tempore: Honourable senators, the time has expired.

Hon. Marc Gold (Government Representative in the Senate): You’re correct, it’s in the regulations, senator. I think section 7 of regulation 2 provides an immunity to banks for civil actions taken in good faith. So that is correct. In order for the banks to do the job we need them to do — to review and report on activities — that is what was required.

However, it is still the case, and as the RCMP statement illustrates, there is close work between the RCMP and the financial institutions to work out appropriate processes to be fair to those whose accounts may have been frozen but who are no longer actively participating in illegal activity.

I think I mentioned in my remarks that if that turns out to be unsatisfactory, and there is no reason to assume that it will be, then there can be further steps that a customer might take to the Financial Consumer Agency of Canada.

Though it is true, senator, that section 7 of these temporary regulations provide this immunity, it is still the case that the courts are open to challenges based either on the constitutionality of the act, whether the regulations themselves were properly authorized by the act or for Charter challenges based upon breaches that allegedly infringe the Charter.

I think that is most the complete answer I can give you at this juncture.

Senator Wallin: The remedies you suggest assume you have resources, which is the problem if your resources are frozen or you don’t have access to them.

The other concern I have is that banks, in an attempt to comply with this legislation — which is both extraordinary and not detailed yet because we have to learn from experience — will have to overreact in order to protect themselves so they are not seen to be exempting someone from this law or not taking tough enough measures. We have seen in many other cases that people overcompensate when the law is unclear. What strategy do you have to combat that?

Hon. Julie Miville-Dechêne: My question is also for Senator Gold. First, I want to thank you for participating in this marathon of questions, which has been going on for more than three and a half hours. That is quite impressive. One thing is bothering me. The government is keeping the emergency measures in place at this time, when there are no visible signs of a crisis. It is saying that, based on secret information, the risk is still too great to revoke the law. Senator Gold, doesn’t this create a dangerous precedent for the future? Could this special legislation be invoked again solely on the basis of secret information, which would obviously be difficult to accept in a democracy?

Senator Miville-Dechêne: I want to be sure that Senator Gold understood what I was saying. I’m talking about the current situation. Now that the occupation is over — and I’m talking about what was said yesterday at the briefing, when you said that you had privileged information about the intentions or threats — I have a simple question. How can we, as parliamentarians, as senators, be called upon to make an objective judgment on the threats you’ve mentioned without actually knowing what they are? How can we make an objective judgment on whether the Emergencies Act is still required today?

The Hon. the Speaker: Senator Gold, we’re about to start our second round of questions. Do you want to continue taking some questions?

Hon. Claude Carignan: My question is about alternative dispute resolution mechanisms.

In any demonstration, whether we’re talking about strikes, street blockades or crises, like the one in Oka in 1990, two years after the Emergencies Act passed — and which was an actual emergency — alternative means of resolution are often used, including mediation, and authorities sometimes try meeting with protesters and building bridges to resolve the impasse.

In fact, your father, whom I greatly admired, was appointed as mediator to settle the Oka dispute, and he was quite successful. Did the government make any attempt at conciliation or mediation with the people occupying Wellington Street to resolve the problem, as was done in Oka in 1990 under the Brian Mulroney government, at the federal level, and the Bourassa government in Quebec, when your father was tasked with resolving that crisis?

Senator Gold: With great pleasure.

Senator Batters: Senator Gold, how will a bank know that someone has “stopped participating in the protest” and then unfreeze their bank account?

Senator Plett: “Only” 200.

Hon. Frances Lankin: Honourable senators, my question is for the Government Representative in the Senate.

Senator Gold, on a number of occasions today, you’ve tried to bring our attention back to the fact that this is a motion to confirm or not. Of course, some of the things we have been talking about will be examined through the inquiry and will be monitored through the joint parliamentary committee. We’ll find out about those. However, there is a threshold in the Emergencies Act that we as a chamber must determine has been met in order for this Act to receive our support.

Senator Carignan’s first question with respect to attempts to mediate or discuss is writ large and is, in general, a good question. It is one that may come out in the inquiry. But as we begin the discussion, I’d like to note I’ve rarely heard such discussions in major protests that I have participated in — or strike situations with blockades at entrances to workplaces. It has been my experience that those negotiations have never actually happened with the government, even though it was a public sector protest that was happening, but they have happened with the police dealing directly with protesters.

We’re aware that the mayor of Ottawa had conversations with the organizers of the protest. Perhaps this has been reported and I missed it, but I’m not aware whether the police had active conversations. I believe conversations and dialogue are important, even when we know that the Canadians involved in organizing this have deep ties to a number of organizations you have already referred to.

Are you aware if there were any other discussions? And are you aware of how the federal government came to a decision not to engage in discussions?

Some Hon. Senators: Hear, hear.

Senator Lankin: Thank you for your response, Senator Gold.

As I have been struggling to understand the analysis that supports or doesn’t support the threshold criteria in the Emergencies Act having been met, I — along with all members in this chamber and all Canadians — have heard about the nature of the organizers, the nature of the untruths they told their supporters in the streets and the manipulation that went on.

We’ve been told about the ties of those organizers to a number of nefarious organizations and organizations that have been called domestic terrorist organizations; that kind of characterization has come from both CSIS and other intelligence agencies and is open-source information. You mentioned Diagolon. Well, the Sons of Odin were there as well. The Three Percenters were there. There are other groups.

In this chamber, we know that CSIS has made us aware of their view that the rise of right-wing extremism is the most significant challenge we face right now. I know some senators have scoffed at that. That’s what we have been told. In fact, in our own Standing Senate Committee on National Security and Defence we were told that by David Vigneault, who was the then director — Richard Fadden, before him, has said that — in response to a question from Senator Oh, so we know that.

As I look at it, the only thing I don’t know is what top-secret classified information cabinet had before them to make this decision. Last night in the informal briefing, Minister Mendicino said at some point in time you have got to give deference to cabinet, who has that information.

I think we should have a debate about how we effectively do lawmaking when, at times, we can’t get access to the information. What’s the mechanism? Do we swear in this committee coming in and provide them with that? Do we take away their parliamentary privilege — as has happened with people on NSICOP appropriately — so that you are liable if you breach classified information? We can have that conversation.

At this point in time, when I listen to you and I look at the threshold criteria, I can say yes or no to the criteria. I can interpret it differently from others, perhaps. But I can’t respond to your having to give deference to cabinet without just deciding whether I’m going to do it or not.

I want you to talk about that aspect of our democratic decision making in which parliamentarians will not always have, as frustrating as that is, the classified information before them, but cabinet does. Help us all understand.

Those who say, “just trust me” — you’ll never use those words, but it does come down to a matter of trust in our democracy and in our government in a time of crisis doing the right thing. Perhaps you could address that.

Senator Boisvenu: You’ve gotten used to it since this morning.

Senator Gold, when a government wants to use such harsh legislation that could jeopardize civil liberties, the top priority is transparency.

Yesterday, you saw the debate in the other place about whether or not the vote would be a confidence vote. The leader of the government categorically refused to confirm or deny to the members, especially those from the Bloc Québécois and the Conservative Party, whether the vote was a confidence vote. We get the sense that this was Mr. Trudeau’s strategy for getting the NDP vote. If you don’t vote with us, then it will be a confidence vote, which will trigger an election.

When the legislation was adopted, it was Mr. Beatty who said:

The government must justify its actions to Parliament if it wants to use such legislation. This is to prevent the federal government from granting itself overly broad powers.

That is not happening at present. The Government of Canada has information that it prefers not to share. From the start of this debate this morning, other senators have asked the same question as I did. You are asking us to vote on a motion that will legalize the application of the bill, but you have information that we don’t have. Basically, you are telling us to trust you. That is not the definition of transparency and trust.

Senator, the application of this act is subject to the provisions of section 3:

My questions are the following. Has the government demonstrated that it has lost its ability to govern and preserve Canada’s sovereignty? Has the government proven that Canada’s security is under threat? Has the government proven that Canada’s integrity is under threat?

Senator Gold: Absolutely.

Senator Dupuis: Thank you for taking part in this question and answer exercise, which began around ten o’clock this morning. It is now 3:18 p.m. My question for you is this. A number of senators have called for a Committee of the Whole to be held in order to begin the Senate debate on the declaration of a state of emergency. You have received a written request from at least one facilitator of a parliamentary group, supported by the facilitator of another parliamentary group. Why was that solution not accepted? In Committee of the Whole, we could have heard from the ministers responsible for this emergency declaration, the ones directly involved in drafting this declaration. That would be an opportunity for them to present their views in public, before the members of the Senate and also to the public at large. Senator Gold, why couldn’t you organize such a committee? What stopped you?

Hon. Renée Dupuis: Would Senator Gold accept another question?

Senator Gold: Why didn’t you just say that to me earlier, Senator Moncion?

Hon. Lucie Moncion: Senator Gold, if you have already answered a question that is being asked again, could you just say that the question has been asked and answered?