Senator Gold: If I had a speechwriter, I would — but, no. Thank you. It’s an important question. And let me be clear: I was being descriptive and factual because by the time our debate started — and we had all hoped it would start earlier, frankly, but the police activity made it impossible for us to return as planned.

We are an independent chamber, pointe finale, in all respects. In this respect of the Emergencies Act, it’s absolutely clear and to be applauded that we are to decide independently. We don’t have to wait for them to decide. We had not intended to wait for them to decide. We had no control over the other side. Had we been sitting and the House adjourned, it’s very possible we would have started the debate before them and even concluded it.

The fact does remain, however, that by the time our debate had started today, the House had spoken. I was pointing out to the chamber that the House has spoken, and it’s not simply the government party but also one of the opposition parties that supports it, as did their former leader Ed Broadbent.

So, colleagues, please know, as I assume you do, the respect that I share for us as an independent, complementary institution. I reserve the right, in the context of legislation, to speak about what our role is vis-à-vis the elected officials, which is hard‑wired or baked into the Constitution. This is the understanding of what the Senate was and was not to be by those who created our Constitution and created the country of Canada. The country was here before. But in this particular situation, this is not a case where it’s a question of deferring to the other place. Our job is to decide whether we confirm the invocation of the act or deny it, and that’s entirely up to us.

I find it relevant, nonetheless, that, after a long and charged debate, the other place has decided to confirm it. I invite senators to consider that fact or disregard it as you see fit. I think it’s relevant. But it’s not because we are subservient. On the contrary, the act makes it clear, as does the Constitution, we are an independent chamber and shall remain so.

Hon. Donald Neil Plett (Leader of the Opposition): That’s the nice thing about having a mask on, Senator Gold. You could not say that with a straight face, “with great pleasure.”

Senator Gold, earlier in answer to one of our colleague’s questions, you talked about having respect for other views and other opinions. I have worked together with you now for a few years, and I believe that. Your exchange with Senator Housakos earlier today, however, didn’t show that. It clearly showed that you had — I want to choose my words carefully — some disdain for partisan views that you didn’t share. I know you’re shaking your head, and if that isn’t true, I will accept that. However, if somebody just listened to the exchange, that wouldn’t seem to be how you feel.

Senator Gold, I’m going to quote for you an exchange that took place on CTV last Thursday night, where one of your colleagues from the other place showed his disdain for certain views. Evan Solomon asked the Minister of Justice:

A lot of folks said, look, I just don’t like your vaccine mandates, and I donated to this. Now it’s illegal. Should I be worried that the bank can freeze my account? What’s your answer to that?

Minister Lametti responded:

Well, I think if you are a member of a pro-Trump movement who is donating . . . to this kind of thing —

— not to Trump but “this type of thing” —

— then you ought to be worried.

Leader, in other words, if you hold an unacceptable view, you should be afraid that your bank account will be frozen is in essence what Minister Lametti said.

Now, you say that you believe in other people having views other than your own, and that’s acceptable. Can you tell us, Senator Gold, does the Prime Minister share your views? Does Minister Lametti share your views? Because his actions and his words would not indicate that. How can this comment from Minister Lametti be viewed as anything other than political retribution?

Senator Gold: Once again, thank you for the question. All I can say and want to say, esteemed colleagues, is that we were sure we wouldn’t be able to obtain unanimous consent. For that reason, we chose to proceed differently. We did not want to play political games. We respect the House and our rules, but we must also respect our duty and the need to have all the information from the government, which is asking for your consent. That’s why we tried, unsuccessfully, to organize a Committee of the Whole. Fortunately, we at least succeeded in giving you access to the ministers, and I am grateful for their time. The ministers agreed to talk with us and answer our questions while the House of Commons was sitting, just before the vote. I am also very grateful to the senators who attended. I trust that it was a valuable experience.

[English]

Senator Gold: Let me respond to your last question first and perhaps permit me to make a comment or two about some of the other remarks.

The Emergencies Act itself, the declaration issued pursuant to it and the regulations all draw a distinction between illegal protests, illegal assemblies, illegal actions and lawful, peaceful protests. It is well established in Canadian law that there is a difference between vigorous protest — even protest that is inconvenient, as it often is, as we know here on the Hill — and those that are accompanied by violence, threats of violence, rhetoric that is demeaning and hurtful, and actions of intimidation and harassment of ordinary citizens.

The law and our jurisprudence sets out the difference between lawful, legal and illegal protests. It’s not “Justin Trudeau” that decides, and it wasn’t Justin Trudeau alone that decided. The decision to invoke the Emergencies Act, as I said and will simply repeat, came —

Senator Plett: That’s not the question. When did it become illegal? That’s the question.

Senator Gold: Strictly speaking, some of the activities became illegal upon the proclamation of the state of emergency. It was only illegal to continue to stay in areas like the Parliamentary Precinct when the tools were finally made available to the authorities to protect our Parliamentary Precinct, and the neighbourhoods, may I add, where people live and work. So that is the narrow legal question.

The broader question, which I was trying to answer, was that the circumstances arose and became quite clear for some time before the invocation that whatever might have started out as a peaceful protest degenerated, morphed into something that was far from a peaceful protest and, as I outlined in my speech and in the declaration, is an intolerable situation in any free and democratic society.

If I may briefly address, respectfully, some of the other things that you said, I never said 200 individuals were insignificant. What I was —

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 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: I will do my best. You’re asking a question that lies at the heart of how, in a democratic society, we also protect our safety and security. If you will allow me, I’m scrambling here because it is such a deep, important question and there is no easy answer.

Our courts face this all the time. How do you give due process to somebody charged with an offence — say a terrorism offence, to use an example that will be understood by all — when the evidence against them cannot be disclosed?

It has often been discussed and criticized, but we have a system in Canada with special judges and with in camera proceedings, friends of the court and so on, to try to find that right balance, because not all values that are important always fit together so easily; they bump up against each other. This is one of these cases.

Our Constitution — indeed, it’s an exercise of the Royal Prerogative in foreign affairs — confers upon the government, as opposed to Parliament, certain responsibilities and gives access to certain kinds of information that is not shared. It has everything to do with today, but it is not unique to the Emergencies Act.

Whether the solution is to create something akin to NSICOP, to mandate NSICOP or something like that which would have access, although not able to divulge it to parliamentarians, it is a question of whom do we trust. I am showing my age from old TV shows.

There is no right answer here.

If you will allow me to revert to what I think is really at the heart of it, this is not the case where the government is saying, “I know you don’t see any problem here, but we have all this information; trust us.” It’s really not that.

I’m not going to overstay my welcome by reciting everything in my speech or in the declaration. There is plenty of evidence, in the opinion of the government, that we saw with our eyes and heard with our ears that is such that it rose to that level of the threshold. It satisfied the threshold.

As I said in my speech, simply the presence of those armed and threatening the use of force to destabilize a democratic institution itself satisfies an element of the definition. The blockades, and the risk of their return, also meet the criteria.

It is all of that that is known that supports, in our opinion, the government’s decision to invoke the Emergencies Act on February 14. Yes, they may know more than they’re able to share.

I have to be very careful what I say, because everything gets tweeted out, so I want to choose my words carefully. Either we do or do not have confidence that the Government of Canada, whatever you may think of the Prime Minister — whatever you may think of his economic policies, how he has handled the pandemic or not — I don’t care. You’re entitled to feel whatever you want.

If we as parliamentarians do not have confidence in our government that comes forward after weeks of seeing what happened in Ottawa — everything that happened in Ottawa, and everything that I have described and that you’re aware of — and if we don’t have confidence that our government, sworn to uphold the Constitution, applying a law that demands that their actions be proportionate and consistent with the Constitution, trusting parliamentary institutions, the Senate and the House of Commons, to apply themselves to a serious examination of whether or not we can confirm the government’s decision that this was necessary, then I despair.

It’s not a question of “trust us,” because you will hear it. I reserve the right, as I said, to argue on some other occasion with a piece of legislation that we ought to defer to the elected officials. I’m not making that argument. I am not saying that we have to defer to the government.

If we don’t have confidence that the government isn’t lying to us, that this is not, like some have argued, a black flag operation to turn Canada into a dictatorship under Prime Minister Trudeau — as one hears on certain media south of the border for sure, and maybe elsewhere as well — then I don’t know why we continue to serve our country.

We continue to serve our country because we’re doing our job as parliamentarians. We are doing our job. I am proud of the job we do. I think the government has responded responsibly and proportionately.

I believe that I have presented the case and the government has presented the case that clearly establishes that the threshold was met for the invocation on February 14.

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]