Senator Gold: There were several aspects to your question, so I’ll try to give you a clear answer.

First, there’s a wide range of measures that should be seen as a set of measures authorized through the proclamation of a state of emergency and that, combined, made the difference here in Ottawa and are making a difference in keeping us protected now.

Without the proclamation, there is a whole swearing-in process to bring in, for example, 1,000 officers from the Sûreté du Québec, and to give them the authority to enforce the law here in Ottawa. That takes time. There was a crisis. The city had been taken hostage.

Therefore, one aspect of the highly targeted measures was to temporarily eliminate the swearing-in requirement so that we could bring in police officers from across Canada who would be able to immediately get to work. Without getting into what the Ottawa police were capable of doing before and what they would have had the time to do, it was quite clear that they did not have the means to ensure that the various police forces could work together in downtown Ottawa and on Parliament Hill.

We therefore had to make changes to the leadership, and we had to use the proclamation to allow for a coordinated police effort and an adequate number of police officers to put an end to the blockade.

Other means were also used. The impact of the financial measures, which were another important tool, must not be understated. It’s important to note that despite a state of emergency being declared in Ottawa and across Ontario, there was no way to protect Parliament Hill or downtown residents until these measures were brought in. I also mentioned the other tools — and I don’t want to take up too much time, as I’m sure there will be more questions — but it would have been impossible to get the trucks out without the measures that were brought in.

While it’s true we can always ask “what if?” and think about what could have been, I’m here to tell you and to try to convince you that the government not only took the exercise seriously, but it also met the requirements of the law to conclude, on reasonable grounds, that a public order emergency existed and these measures were necessary.

That is the government’s position, and I think it has been clearly demonstrated by the facts on the ground.

[English]

Senator McPhedran: My question is to Senator Gold. Although, Senator Gold, I remain keenly interested in the section 59 motion by senators and members of Parliament crossing all political boundaries, if possible, I do have to ask if you will forgive me because I misspoke. I gave information from only my perspective, from my office, which is many blocks away from Senator Pate’s office. After I indicated that trucks had been stopped by our security forces, Senator Pate sent me a photograph taken at four o’clock on Friday, January 28, clearly showing me that there were trucks parked in front of her office on Wellington. Please, I hope you will accept this correction and the fact that I made a statement based on my limited perspective.

Senator Gold: I did not want to be the one to stop senators from asking questions that I have not yet answered when it may be on their mind. I am mindful of that. It has been a long morning and a long afternoon. So in that regard, although I have the right to say no, I’m reticent to do so.

Senator Gold: What I said was of the thousands and thousands and thousands of donations, it is a relatively small percentage of those that have been targeted for investigation with the result of their bank accounts being temporarily frozen.

What I intended to communicate through that — and it seems to be unclear — was that this was not a blanket witch hunt against people who, for whatever ideological reasons, decided to support this protest in January or early February. But as of February 14, those who continued to or for the first time became engaged in the activity that was deemed illegal by a law of Canada, then they and only they are the ones that are being targeted by the measures. “Target” is the wrong word. They are subject to the measures that are promulgated under the act. That’s that point.

Nor, honourable colleague, have I said in this chamber or do I believe, for what that is worth, that everybody who is in Ottawa or elsewhere, on highways cheering on the convoys, associate themselves with the extremist and repugnant views represented by the signs that I have described. I have never said it; I don’t believe it. The Prime Minister doesn’t believe it either.

But what is indisputable is that the residents of Ontario, of Ottawa and the people of Canada were exposed to folks who, at one and the same time, were bathing in hot tubs and having their little children bounce on bouncy castles while others were promoting ideas that are hurtful and repugnant to every value that we all stand up for in Canada.

Again I repeat, it is not to tar everybody in the same breath. I would never do that, but we cannot deny what comes out of the mouth of key mobilizers and organizers of this convoy. You cannot rewrite history. You cannot untweet or delete the social media messages of people that have hundreds of thousands of followers and are encouraging them to join this protest when they have made clear that they are proud of their agenda. That’s what I was trying to point out; it was not to tar Canadians who came here because they are tired of COVID measures.

It’s to say that the threats to our security gave rise to the need to invoke that, and it may not be possible to fully resolve them today, at least according to the information and the advice that we’re getting from the police community we charge with protecting us.

Senator Gold: To your latter question, I’m afraid I don’t have information in that regard, and I want to be careful not to assume I know something that I don’t.

This much I think we all know: We all know that there were discussions with the convoy — or the spokespeople for the convoy — as it was arriving. Certainly, the police had discussions because the police were reassured, “We’re staying for a weekend, and we’re gone.” Therefore, the police said, “Okay. Welcome.” It turned out not to be the case, sadly. It didn’t take very long for them to become so ensconced and entrenched to essentially take control of the streets in the Parliamentary Precinct.

I’m assuming, based upon what I’ve read, that there were conversations not only with the mayor but also with police authorities as there continued to be even after they were ensconced and even in the days and weeks leading up to the introduction of the proclamation.

Again, it will be appropriate for us to ask what else might have been done to prevent this. It is, however, the position of the government that the legal requirements of the act have been satisfied. I won’t repeat them. There are certain formal requirements like consultation and the timely tabling of documents.

More importantly, there is a legal requirement that the nature of the crisis could not effectively be dealt with without additional measures such as those that were promulgated under the regulations.

Senator Gold: There was no misleading of Canadians. Though I have addressed this question before — clearly I’m doing the best job I can to answer your questions — obviously I will have to answer the same question more than once.

The situation that faced Canada was not confined to Ottawa nor was it confined to Ontario, whether it was what happened in Coutts, Alberta, for which the Premier of Alberta, in writing, requested assistance from the federal government saying he needed the assistance and was not able to manage it alone; what happened in Manitoba and is continuing to happen in the streets of Winnipeg; what is happening in Surrey and the border crossing in B.C.; and certainly what is happening here — did I forget to mention the Ambassador Bridge? I did indeed.

The threats to the stability of our democratic institutions are not confined to one province. The act is clear that in cases where the national emergency extends beyond one province, it is appropriate, responsible and prudent for the government to declare a national emergency across Canada because elements of this are found in all parts of the country.

We need to draw a distinction, and lawyers and parliamentarians alike will appreciate the difference between the law on the books and the law in action. There is no evidence that the measures that have been authorized under the declaration, the proclamation or the regulations are taking place anywhere else where they are not needed. There is no evidence of overreach in Quebec, in Manitoba, in Saskatchewan — your province, senator — or anywhere else where there is no need for these extraordinary powers. I remind colleagues — and this is really critical — it is only where local authorities, whether legislatures, municipalities or police forces, are not capable of managing a crisis. This includes a crisis that could be very violent.

It’s only when you’re not able to deal with it that the act would potentially apply. But again, it hasn’t been applied where it hasn’t been needed. That’s what the Prime Minister was trying to communicate, and that’s what is appropriate for him to have communicated.

It would be irresponsible for any federal government — regardless of whatever you think of this particular government — to deny itself the ability to respond, in a crisis, to a situation that could emerge — in an instant — tomorrow were someone to return to the border, whether in Alberta, B.C., or elsewhere in the country. It would be irresponsible to deny the local authorities and the local jurisdictions the ability to invoke on a temporary basis the tools that we saw working so effectively to liberate our city and return it to its citizens.

Senator Gold: Thank you for the question. It’s an important question.

My understanding is that there is two-way communication between the banking and financial institutions and the police authorities. The banks may have suspicions and may communicate with the police. The police, in turn, may have information that a particular person or company has a truck in the middle of Wellington Street and is refusing to leave. Therefore, there is a communication which the act legitimates and authorizes such that that goes back and forth. The same channels of communication extend to when someone leaves.

Let’s say that on Sunday, a person decided to leave and did leave. That information would be communicated to the bank, or that person could communicate that information to the bank, which would be verified. It’s my understanding — though it’s early days, obviously, in the application of this — that is how the information would come to the attention of the bank.

As I have answered in previous questions, there is work being done between the banks and the RCMP to regulate the process.

[Translation]

Senator Gold: Millions of dollars flowed into Canada very quickly in support of the so-called “Freedom Convoy.” Large sums of this money went into relatively few hands. That money is believed to have been used to support and sustain the three‑week occupation and, indeed, whatever other activities required funds, whether for fuel, food or what have you.

It’s the view of the government and of experts who have stated publicly — and indeed of our colleague, Senator White, publicly — about following the money. Choking off the support that nourishes and sustains the illegal activities is one critical step. I would be astounded if some of the protesters, whether folks in a minivan or folks in a big rig, didn’t think twice about whether they should stay and expose themselves to that risk when they were asked to leave repeatedly before measures were taken against them. That’s to your second question.

To your first question: Again, at the risk of repeating myself, it is clear that certain protections against civil actions against banks are built into Article 7. There is no denying that. But it’s also clear that in all other respects, the courts are there to deal with challenges to the applicability of the regulations and challenges to any other measure where someone can legitimately demonstrate and claim, with some justification perhaps, that their rights were infringed.

I did also invoke the interaction that customers and their banks will have — and typically have — if someone like the constituent to whom you referred finds that their account is frozen. My understanding is — and it’s based upon the terms of the law and what the RCMP who are involved with this aspect of it have stated publicly — that there is a work-in-progress to ensure that only those properly subject to the freezing of assets will have those assets or bank accounts unfrozen if and when they leave the area — if that’s the grounds on which they were frozen — or cease their activities, funding or otherwise, in support of illegal activities.

Hon. Leo Housakos: Thank you, government leader, for your patience in taking all these questions today, even though I have to admit I find you’re defending the indefensible.

I don’t think there are any parliamentarians here that don’t recognize that there are extremist groups. There have been for decades. It’s not a new invention. It’s just that other governments dealt with those extremist groups using measured approaches. We are a country that believes in law and order and in rights as well. When you have just law and order and not rights, then you are no longer a great democracy.

I want to ask a couple of succinct questions because I’ve been trying to get an answer to them, and I really haven’t. One of them is a supplementary to Senator Batters’ question. She was pretty clear. When the government investigates or freezes an account, how do the citizens whose accounts are being investigated or frozen know? Also, what measures do they have? What’s available to them in order to defend themselves? As you know, and I saw from your answer, you recognize — and you said it — there is communication constantly between the RCMP, police authorities and banks when they’re investigating or when they’ve identified something to be suspicious. As you know, banks will not call their clients and say, “You are under investigation.” They will not inform them that they are being investigated for terrorism, money laundering or whatever the case may be.

I have a case right now of a constituent who happened to be going to a financial institution a couple of days ago simply to transfer an account from one institution to another, and they said, “Your account is frozen.” He asked why, and they said, “We can’t tell you.” That individual might never find out or when he does find out might be, in terms of their rights, a little bit too late.

We need a clear answer other than just the answer that police authorities are constantly in communication with banks. My question is this: What are the measures to make sure they do not overstep their authority, and who determines that?

My next question is related: How do bank seizures of accounts facilitate the cleaning out or moving out of protesters from Wellington Street? I just don’t see the connection.

Senator Housakos: With all due respect, Senator Gold, it still sounds a lot like “trust the government; we are not going to cross the line.”

I have another couple of questions. I have been asking them and have not received a clear answer. You keep saying, for example, that we needed to return Ottawa back to the people. Can you tell me, then, if the residents of Ottawa have the right to enter the red zone? Can they come and do commercial business here? Can they walk along the canal? Can they come up and visit senators and parliamentarians if they have issues to discuss with them? Again, the question is very succinct. There is a list of who can enter and not enter the red zone. Who determines that list and tells the police authorities who can enter? The next question is a simple one: Municipalities and provincial governments have, effectively, all the tools and laws at their disposal to deal with what Ottawa had to deal with. We saw it in Quebec City, in Coutts and at the Ambassador Bridge. There is nothing that justifies the Emergencies Act to supplement those tools that were already at their disposal.

Senator Gold: Again, respectfully, colleague, I disagree. On the second point, I listed on many occasions the additional measures that were not available to any level of government but for the proclamation of the emergency and the promulgation of the regulations, and I won’t repeat myself.

To your first question, it is not the government that determines. The government doesn’t direct police in our democratic society. My understanding is that residents or people who have legitimate business to do, or people who work in an area that is otherwise restricted, can enter the red zone. There are checkpoints. We have all gone through them in the last while. Of course, it is relatively easy for us because we have the card, to be sure.

However, I would just say this. The inconvenience to residents of Ottawa for having to demonstrate that they have valid reasons for being in a particular area — as opposed to having either no reason to be there or are clearly foolish enough to reveal their desire to reoccupy — pales in comparison to the inconvenience that residents of Ottawa endured for three weeks, unable to sleep until a courageous woman got an injunction to stop the horns. For her civic actions, she required police protection because of threats and harassment against her. There are always many sides to a discussion, but they’re not always of the same weight. Respectfully, to minimize what the citizens of Ottawa went through and what the country goes through when it is threatened with economic dislocation, when borders and bridges are closed, when its institutions are threatened, when the leaders duly elected are threatened and when police officers are threatened. With all respect, that weighs much more heavily and should weigh more heavily in terms of the responsibilities that any government, any federal government should assume than requiring residents of Ottawa to take a detour if they want to take a walk along the canal.

[Translation]

Senator Gold: Thank you for these questions. These issues are of concern to us.

I tried to present the arguments, the facts, the background and an analysis of the law and how its provisions must be interpreted in context. I presented all the information that I am allowed and required to share with you here in this chamber. I did it, and the government did it in a fully transparent manner. It listed its reasons in the declaration. It answered questions from parliamentarians and journalists on many occasions.

I am convinced that, according to the provisions of the act, and given the facts that we know, the government has met the tests and criteria set out in the Emergencies Act and satisfied the “burden of proof.” I’m using legal vocabulary because it is a legal text. Our job — we aren’t judges here; we are parliamentarians — is to answer the following question. Allow me to say it English.

[English]

Did the government have reasonable grounds to believe that a national emergency existed that required this?

[Translation]

That is the question before us today. The government’s answer is yes, based on the reasons that have been disclosed to the public and shared here in this chamber and in the other place.

As for the other parts of your question, I have nothing to say about what happened in the other place or about the political and partisan games played in a minority House. Here, in the Senate, we shouldn’t be concerned by what happens in the other place. We are independent, we have a job to do, and that is what we are doing. As I said, I am proud of the work that we do, but I don’t want to confuse the issue. We must come to an independent decision, one that reflects our experience and constitutional duty to act as parliamentarians.

Senator Gold: Thank you for the question. The answer is no.

If I may, I would like to read the key and central excerpt that requires us to answer the question. Subsection 17 (1) states:

When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

Let me repeat that again, “believes, on reasonable grounds.”

This is the legal test we need to interpret, analyze and vote on.

[English]

Senator Boisvenu: Senator Gold, I regret to inform you that the time to assess a government’s transparency is before, during and after a crisis. The government’s actions in the other place are an indication of its lack of transparency.

You spoke about reasonable doubt. This act requires absolute certainty. It is not our job to reason, here. We require evidence beyond any doubt. When you say that some groups could intervene, you are talking about probability, not certainty. In light of the impact this act has on the lives of Canadians, don’t you think that you’re taking another risk that, unfortunately, could cause Canadians to lose confidence in this government and its politicians?

Senator Gold: Thank you for the question. I do understand the dilemma. I hear the frustration of senators who know, because we live in a democratic country, that intelligence services and police have information that they may share, but that cannot be published or made public. As I said in an earlier answer — and I won’t repeat myself — it’s a dilemma. It’s a dilemma, not only in the case that we’re facing now, but in other respects, whether it’s the work of parliamentary committees or of our courts.

Of course, it is possible that a decision could be made to do that, though there is nothing in the act that so provides. It is not necessarily the case that, even sworn in as a member of the Privy Council, that would necessarily give you access to all information that may or may not be relevant. In this case I’m betraying my own ignorance of various levels of security, but I do recall from earlier in my life that there are levels of security clearances that are independent of secrecy obligations and independent of a being sworn in — although there is a security dimension to being sworn in as I recall, going through the Privy Council. So your question is a legitimate one, for which there is no answer in the act and, frankly, I have no knowledge of, furthermore.

I would remind honourable senators that when the parliamentary review committee is up and running, it will have the ability to define its agenda in the terms of the act and to seek the information that it wants and needs. And if it turns out that it needs information that it could not otherwise have, to be the driving force, to try to effect some changes temporary or otherwise, so they could have access to a greater range of information. But for the moment — and this is important to focus on — its role of review and oversight, which includes the possibility of responding to a motion to revoke regulations, is not the same thing as the function of, say, an NSICOP.

It remains to be seen exactly how this committee conceives of its work, and I have every confidence that parliamentarians, if they feel they don’t have the tools to do it, will make representations. I have every hope and confidence that the government, within the constraints appropriate in a free and democratic society, will be open to those entreaties from members of the committee if that’s what it comes to.

Senator Patterson: Thank you, Senator Gold, for that answer. You’re doing yeoman service today and that’s greatly appreciated. I appreciate getting some further clarity on what might be possible.

Senator Gold, you have said it’s possible a decision could be made to swear members into the Privy Council, or allow them access to sensitive, strictly confidential information. We’re debating a motion here, as I understand it today. I’m wondering, would the government be open to an amendment to that motion that would clarify my concern — and probably the concern of other members — that members of the parliamentary review committee should be given, under strict conditions, the maximum authority reasonably permitted to be fully aware of the sensitive information, that would not be otherwise available or disclosed publicly, to validate the security threat to Canada, to justify the order or justify the continuing of the order? Would the government be open to considering a reasonable amendment along those lines? Thank you.

Senator Gold: Thank you for the question. The government would not consider reasonable, or would oppose any attempt to amend this motion. It is not necessary for us to do the job that we’re asked to do — to confirm or reject the invocation of a state of emergency. I hope my answer to you was not taken to indicate that I thought it was necessarily a good idea. I said it is possible that members of this committee could be members of the Privy Council subject to whatever other security clearances.

I want to correct an assumption you may be making. You don’t temporarily swear someone into the Privy Council. Indeed, let me cite for your edification section 10 of the NSICOP Act, which requires:

Each member of the Committee must

It’s not something you dip in and out of. That’s not the way in which the committee would get access to additional information. I repeat, the committee, when struck, will assess what it needs and what it requires. It will make requests and will be responded to in a responsible way.

If I may bring us back, honourable senators, to the position of the government, it is the position of the government that the government has met the legal test set out in the Emergencies Act by virtue of information that is currently in the public domain. The government is not relying upon a “trust me, I know things you don’t know” approach. If I made the mistake — and I surely hope it wasn’t a mistake — to remind parliamentarians that in Canada, there is in fact an intelligence service. There are police services, there are investigations and relationships with our partners abroad that have to be protected. If I made the mistake of reminding you that this enters into the government’s calculations, not only whether to invoke an Emergencies Act but in all hosts of measures, including how we conduct ourselves on a foreign stage, and how we work with our allies, my apologies. The fact remains, there is sufficient evidence in the public domain to more than justify the decision that the government took. It had reasonable grounds, it acted on those grounds and we are seeing the fruits only one week later with a return to some measure of order and to the benefit of Canadians, our economy and our security.

[Translation]

Senator Gold: Why not.

Senator Gold: Thank you for the question. Before I answer, allow me to add a response to the previous question from Senator Patterson on the receivability of an amendment to the motion. Once again, my apologies for not remembering that, in fact, according to subsection 58(6), amendment of the motion is not receivable under the act.

Getting back to your question, it’s common knowledge that the Government Representative Office truly hoped to respond to the request made by several senators, because most of the groups in the Senate wanted to have a Committee of the Whole. We supported this request because we believe, in the context of this unprecedented and historic debate, that senators have the right to receive key ministers who could answer their questions and that they could benefit from this.

However, in the circumstances and given the tight deadlines for this process, it would require the unanimous consent of the Senate to hold such a committee.

I can’t speak about what happens in private meetings with the leaders or other people. What I can say is that we attempted to find a way to obtain unanimous consent for the three ministers to appear in this chamber before starting the debate, but that was not possible. For that reason, I’m pleased that we were able to organize something outside the chamber. It wasn’t my first choice, but it did nonetheless give senators access to the ministers. We are pleased that we were able to organize that meeting, which fulfilled a legitimate and important request made by several senators. It’s too bad Canadians couldn’t participate and attend, but we are bound by certain rules, and the rule of unanimous consent is not always accessible to the Government Representative in the Senate. That is all I can say on that matter.