Senator Dagenais: I wanted to follow up on Senator Carignan’s question. I found the government leader's answer unclear.

A police officer can request assistance under section 129 of the Criminal Code, so we don’t need special legislation in that respect.

Senator Gold: Thank you for the question. With all due respect, I believe that’s exactly the same question that our colleague Senator Carignan just asked. I have already answered and I’ll leave it at that for now.

Senator Gold: Would the senator take a question?

Senator Carignan: I rise today to oppose the motion to confirm the declaration of a public order emergency, a motion moved under section 58 of the Emergencies Act.

This legislation requires the federal government to demonstrate that there is a state of emergency that justifies recourse to the special powers set out in this legislation. Section 3 of the act lists the conditions that must be met by the government:

 — this is key —

 — is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

In this speech I will explain that there are two key conditions in section 3 that the government is unable to demonstrate in the context of the illegal blockades in Ottawa that ended on the weekend.

First, it is unable to demonstrate that it was impossible to effectively deal with this situation under any other law of Canada. Then, it is unable to demonstrate that this crisis exceeded the capacity or authority of a province to deal with it.

Senators will recall that at first the federal government took absolutely no action to end the demonstrations, and then it did too much, too late, by deciding to resort to this act.

The truth is that before the act was invoked, the police had all the legal tools and resources they needed to manage the illegal blockades of public roads and to restore order.

I refute the argument that there were not enough police officers. I simply do not understand why the mayor of Ottawa claimed that he requested but did not obtain 1,800 additional officers to end the turmoil in Ottawa before the federal government decided to resort to the Emergencies Act. In the past, there have been other major events in Ontario and in other provinces where large numbers of police were deployed without the need to invoke this law.

Let’s start with Ontario. According to the 2012 report of an investigation by the Civilian Review and Complaints Commission for the RCMP, an estimated 21,000 police officers and security personnel were deployed to the 2010 G8 and G20 summits in Ontario.

That same report provided another example of an event requiring a large contingent of police officers. In April 2001, Quebec City hosted the Summit of the Americas. In preparation for this event, a 6.1-kilometre security perimeter was constructed to keep protesters from the conference site. The report estimated that 6,000 police officers from four different agencies were deployed to police the event.

British Columbia has also hosted an event requiring the mobilization of thousands of police officers, without the need for the Emergencies Act. In 2010, during the Olympic Winter Games in Vancouver, 5,600 officers from various provinces were deployed, according to a 2010 research report commissioned by Public Safety Canada. This report also noted that an additional force of 950 police officers had to be arranged as a contingency force that could be deployed to the games within 72 hours if they were needed.

Canada is not only capable of mobilizing thousands of police officers to one location, but it also has access to legislation at all three levels of government, in addition to jurisprudence, that provide the legal tools required to maintain and restore order in the event of large protests, all without the need to invoke the Emergencies Act.

First, the Supreme Court of Canada indicated in R. v. Dedman that police officers have a duty to preserve the peace, protect life and property, and control traffic on roads.

These police responsibilities are recognized by the common law and are also codified in the provincial police acts. Such is the case in Ontario, for example, under section 42 of the Police Services Act, which imposes a duty on police officers to prevent criminal or regulatory offences.

In order to enable police officers to do their duty, the common law gives them the opportunity, under certain circumstances, to invoke powers not provided for in the legislation. I am talking about the ancillary powers doctrine, which I will come back to later.

Furthermore, the federal Criminal Code gives police officers a number of ways to respond to stop criminal offences or breaches of peace in the context of a protest.

I would like to quote Fleming v. Ontario, a recent Supreme Court Ruling in that regard. It states the following, and I quote:

The Criminal Code provides explicitly for a number of warrantless arrest powers . . . . In particular, under s. 31(1), a police officer can arrest anyone found committing a breach of the peace or who the officer believes is “about to join in or renew the breach of the peace”. In addition, s. 495(1)(a) provides that an officer can arrest any person “who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”. This applies to all offences that may be prosecuted by indictment . . . a category that encompasses — and extends beyond — the activities which have historically been classified as breaches of the peace, such as various forms of assault . . . mischief ([under] s. 430) . . . and taking part in a riot . . . . Thus, police officers already have extensive powers to arrest, without a warrant, a person they reasonably believe is about to commit an act which would amount to a breach of the peace.

In the case of the Ottawa protests, people were arrested last weekend and charged with mischief offences under section 430 of the Criminal Code. That section sets out several examples of that offence, which is well known to the courts and to the police.

In this case, a charge of mischief can be based on the fact that protesters interfered with Ottawa residents’ lawful enjoyment of public roads and stores, and that their loud horns and illegal parties interfered with residents’ ability to sleep in their homes, not to mention the nauseating odours and pollution emitted by the heavy diesel trucks that idled non-stop for the three weeks of the protests.

From day one, the police could have arrested individuals for mischief on the same basis as those who were arrested on the weekend for this offence. Charging them also makes it possible to set release conditions that would prevent the accused from returning to the same type of protest blocking the roads. If there is a high risk of reoffending, the person could even be ordered to be held in jail until the end of their trial. Although I am neither a Crown attorney nor a police officer, I assume that the conduct of many individuals also violated the offences of unlawful assembly, attempting to disturb the peace, common nuisance, and simple assault or assault with a weapon against police officers, which are already offences under sections 66, 175, 180, 270 and 270.01 of the Criminal Code respectively.

In criminal law, a person can be found guilty of a criminal offence if they do something that aids or abets any person in committing the offence.

(1640)

This principle is set out in section 21 of the Criminal Code and also in the Supreme Court of Canada ruling R. v. Briscoe. Based on this principle, and without having recourse to the Emergencies Act, police could have arrested protesters and charged people who had financed these protesters, if these people knew the protesters intended to illegally block the streets of Ottawa with heavy vehicles. If so, these people would have been aiding or abetting mischief under section 21. That means they could be charged with that offence too, just like the truckers who blocked the streets.

In addition to the Criminal Code, various other legal tools besides the Emergencies Act were available to government authorities. When railways, roadways or factories are blocked by protests, by ordinary people, government authorities or employers can go to court to obtain an injunction. These are court orders that can restrict the illegal activities and the excessive consequences of a protest to protect the community and the economy. These injunctions authorize police to use the necessary force to enforce them, and violators can be liable for contempt of court and imprisonment.

That is how, in February 2020, the Quebec department of transportation obtained an injunction to clear a railway that was blockaded by protesters in the First Nations community of Listuguj. That same month, two other similar injunctions were sought and obtained by government authorities. First, Canadian Pacific was granted an injunction to lift a rail blockade in the Mohawk territory of Kahnawake. Then a federal port authority obtained an injunction to restore access to the Port of Vancouver, which had been blockaded to exert pressure in support of Indigenous claims.

Why didn’t the Government of Ontario or the City of Ottawa quickly seek injunctions to clear the roads in Ottawa and Windsor? In the case of the injunction to ban honking in Ottawa, it was a resident, Zexi Li, who filed the suit, while in the case of the injunction to restore traffic on the Ambassador Bridge in Windsor, the applicant was an automotive manufacturing industry association. It was not until later that the City of Ottawa finally decided to file for an injunction to ban protesters from starting campfires, setting off fireworks, making noise and blocking roads. Many people, myself included, wonder why the city, which is a government authority, didn’t go to court immediately to use injunctions to protect its residents and merchants from having their rights trampled by the protesters.

One thing is certain: The Emergencies Act did not need to be invoked, since the protesters had already been cleared from the Ambassador Bridge by police officers enforcing the injunction on February 13, before the act came into effect.

Furthermore, border control is a federal jurisdiction, so the federal government could have sought an injunction to end the blockade at the Coutts border crossing in Alberta much earlier.

On another note, I want to refute an argument put forward by the Prime Minister of Canada, as reported by CBC on February 14. I quote:

Invoking the act will also allow the government to make sure that essential services — such as towing services to remove trucks — are rendered, said Trudeau.

Again, I don’t think that the act could legally be applied, since the Ontario Provincial Police had the necessary legal powers to tow the heavy trucks parked in Ottawa, without the need for this act or a court order.

Subsection 134.1(1) of Ontario’s Highway Traffic Act states, and I quote:

Where a police officer considers it reasonably necessary . . . to ensure orderly movement of traffic . . . he or she may remove and store or order the removal and storage of a vehicle [or] cargo . . . that are directly or indirectly impeding or blocking the normal and reasonable movement of traffic on a highway . . . .

Section 134 of the same provincial act provides that every person must obey the directions of a police officer to ensure orderly movement of traffic. These sections of the act apply in Ottawa, as confirmed by section 91 of A by-law of the City of Ottawa regulating traffic and parking on highways.

I would add that failure to comply with a police officer’s traffic direction or towing order could constitute the offence of obstructing a police officer under section 129 of the Criminal Code. I also note that, according to the CBC, a number of protesters were arrested last weekend and charged with obstruction.

Furthermore, in my view, although I don’t have enough time to develop this argument, the ancillary powers doctrine would have enabled police officers to order a driver to disengage the air brakes on the tractor of a large truck and hand over the keys to facilitate towing or moving the vehicle to clear traffic. I would argue that these ancillary powers could have been lawfully invoked by the police to move the trucks. In the context of the Ottawa occupation, the use of these ancillary powers would have been justified, as they were essential to ensuring compliance with the sections of Ontario’s Highway Traffic Act that I just cited, and fulfilling the police’s duty to preserve the peace that I talked about earlier.

In summary, for all of these reasons, I believe that the government’s motion does not meet the strict criteria for invoking the Emergencies Act, and I urge you to vote against it. The governments and police forces had all the legal tools needed to end this crisis faster in Ottawa, and they could have exceptionally deployed enough police officers well before the act came into effect.

Thank you, and I ask you to vote against this extraordinary motion, which is the equivalent of using a nuclear bomb to kill a fly.

Hon. Senators: Agreed.

The Hon. the Speaker: Is leave granted?

Senator Carignan: Yes. However, I would not want to violate the rule of 15 minutes without an extension, but, with leave, I would like to have five more minutes.

Senator Carignan: I find what you are telling me interesting. You agree with me because, if the Government of Alberta said that it did not have the capacity to respond and asked the government for help, Canada’s laws allow the federal government to intervene and help the province. It is like the Oka crisis, which we spoke about earlier. In that case, the Government of Quebec simply asked for the army’s help.

Senator Dalphond: With pleasure.

Hon. Patti LaBoucane-Benson: Would you take a question?

The Hon. the Speaker pro tempore: Senator LaBoucane-Benson, do you have a question? We have 40 seconds left.

Hon. Pierre J. Dalphond: Honourable senators, I rise to explain why I will vote against the motion.

At the outset, I want to acknowledge the ordeal inflicted upon the residents and businesses of downtown Ottawa for over three weeks. I have no hesitation in saying that their nightmare has been the result of illegal acts such as a permanent occupation of downtown streets, honking day and night, keeping rig engines running, impeding access to residents and so on. Senator Cordy referred to many appalling examples. Unfortunately, those in charge of enforcing the law at the municipal and provincial levels let them down. In the circumstances, federal assistance was not only welcome, it was necessary.

This occupation of downtown Ottawa was happening at the same time as various blockades across the country. Those participating in these events all shared the conviction that the time had come for all governments to end, immediately and once and for all, all COVID measures. They had the right to express such a demand, even if ill founded.

Unfortunately, some were also led to believe that it was proper for them to call for a new system of governance to replace the recently elected MPs and the current government. Others believed that the vaccination was a way to control their brain or to reduce their lifespan.

We can now see the adverse consequences of social media promoting all kinds of conspiracy theories, rejection of professional journalism and easy access to unregulated financing, including from abroad, in the construction of an alternative reality.

It is in this context that, on February 14, the government stated that it believed that an emergency existed throughout Canada, comprised of blockades by persons and motor vehicles as well as threats to oppose measures to remove the blockades, including with force, directed at achieving a political or ideological objective. The government added that these activities were adversely affecting the Canadian economy, including by blocking international border crossings and imperiling the availability of essential goods and services.

Was such a description exact? Was it sufficient to meet the tests of the Emergencies Act? The inquiry, mandated by the act under section 63, with the benefit of additional and possibly confidential information, will most likely answer these questions.

For the time being, suffice it to say that I agree with the sponsor of the Emergencies Act in 1988, the Honourable Perrin Beatty, that the government had, on February 14, a high and stringent test to meet, defined in the act as the existence of an urgent and critical situation of a temporary nature that:

. . . seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it . . .

and that cannot be effectively dealt with under any other law of Canada.

I add that the majority of premiers did not believe so. In a Sunday interview, the British Columbia Premier John Horgan said:

I think the premiers agreed that the events in Ottawa were just not tenable and something had to be done. But at the same time, we all expressed our concerns about the intrusion into provincial jurisdiction. We all expressed a concern that it be locally focused, geographically focused.

And he added, “I leave it to [Ottawa] to defend it.”

[Translation]

In Quebec, Premier Legault opposed the use of the Emergencies Act and then, on February 15, the Quebec National Assembly unanimously adopted a motion calling on the federal government to not apply this act in Quebec, but to still “be concerned about the current disruptions” in Ottawa and at the border.

Then, two reputable organizations not known to be right‑leaning, the Canadian Civil Liberties Association and the BC Civil Liberties Association, publicly stated that this declaration did not meet the test of the act. Furthermore, the CCLA has filed an application in federal court to have the February 14 declaration quashed.

(1710)

[English]

Lawyer Paul Champ, who successfully argued for an injunction against sounding the horns in Ottawa and who has been a board member of the British Columbia Civil Liberties Association for 10 years, stated that:

. . . although I am acutely aware of the trauma experienced by Ottawa residents, I fully agree that the Emergencies Act is a dangerous tool that was not required.

All that said, it remains that the motion before us is to decide if the declaration shall continue to have effect or rather be terminated. This has to be decided based on the facts as they now exist, as of today. As I said a few minutes ago, the evaluation of the situation on February 14 will be the task of the inquiry as well as the Federal Court.

By now, we know that law enforcement has dismantled the occupation of downtown Ottawa and that all border crossings are fully operative. Let me take the opportunity to pay tribute to and thank all police services involved for their professionalism.

There are also indications that the emergency measures helped the police to end the occupation of downtown Ottawa by the big rigs, temporarily control entry of people to the red zone, efficiently operationalize police services from across Canada, secure equipment and create strong financial deterrents.

All that said, I am inclined to conclude that there were hard facts amounting to reasonable grounds to declare a state of emergency on February 14, but they appear to have since passed. Now we hear ministers referring to potential attempts to erect new border blockades or to occupy downtowns across Canada. These appear to be rather vague allegations. Furthermore, they are made in a context quite different, considering that the police have learned a lot from the previous incidents as we could see in the last protests in Toronto and Quebec City. I am also convinced that information collected by police and other security agencies is now processed and shared rapidly.

In my view, to adopt the motion in such a context may set the precedent for a lower threshold than the one even considered applicable on February 14.

Furthermore, if the situation deteriorates, with speculation becoming hard facts, the government will be entitled to a new declaration if, in their view, the stringent test is then met. Of course, a new parliamentary process to consider the declaration will repeat.

This brings me to my last point. In the past few days, we have heard ministers and the RCMP refer to the significant impact on truckers of the Emergency Economic Measures Order. As you know, it requires financial institutions to freeze the accounts of alleged participants in the Ottawa occupation and to stop providing them with financial services.

[Translation]

Yesterday, the RCMP released a statement on how it was planning to enforce this order. I will quote, as follows:

Under the Emergency Economic Measures Order (Emergencies Act), the list that was provided to financial institutions included identities of individuals who were influencers in the illegal protest in Ottawa, and owners and/or drivers of vehicles who did not want to leave the area impacted by the protest. At no time, did we provide a list of donors to financial institutions.

We are now working with the banks to build a process to address the accounts that were frozen.

This approach is, indeed, consistent with the order, which does not require that the people and organizations in question receive a detailed copy of the information obtained by the RCMP, and which provides for a neutral review mechanism to be put in place, with the power to order a seizure to be cancelled. Furthermore, the order does not address whether the RCMP or the financial institution can use that information in the future or whether they have an obligation to destroy the information.

[English]

In my view, this process designed to punish a person, even temporarily, by seizure of assets without any judicial oversight, is a clear violation of section 8 of the Charter, which reads: “Everyone has the right to be secure against unreasonable search or seizure.”

In 1984, in Hunter et al. v. Southam Inc., the Supreme Court ruled that section 8 guarantees a broad and general right to be secure from unreasonable searches and seizures which, to be properly preserved, requires that authorizations to search and seize be issued by independent judges.

I quote the court, which said that the purpose of section 8 is:

 . . . to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

In 2003, the Supreme Court reminded us of that principle again:

Courts also ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals.

The Supreme Court also stated that limits under section 8 rights are unlikely to be justified under section 1, given the overlap between the reasonableness standard under section 8 and the minimal impairment analysis under section 1 called the Oakes test, which is not applicable under section 8.

In my view, the Emergency Economic Measures Order as currently drafted is fatally flawed because it authorizes the seizure of assets at the instigation of the state without any form of prior judicial authorization in order to sanction the person or organization for an alleged but unproven offence.

A judge is needed to balance government interest and the rights of the individual concerns by this measure, an examination that can be done ex parte like most warrants. There are nearly 1,200 federally appointed judges in Canada, most of them sitting in Superior Courts, and many more provincially appointed judges. All of them have the power to issue warrants. It would have been easy to seek judicial authorizations in connection with the 76 accounts frozen by Saturday — a number that increased to 206 by yesterday.

Senators, since this order seems to be the most important new tool provided by the declaration, we should not hesitate to vote “no” and put an end to such an unconstitutional piece of overreaching regulation.

Finally, let me offer two comments. First, a negative vote in this chamber cannot be considered as a matter of confidence in the government. That can only happen in the House of Commons where elected MPs sit.

Second, if we conclude there is no necessity to continue the declaration, the regulation and the order will cease immediately to have effect for the future, but charges laid before will continue to be processed by the courts. For all these reasons, colleagues, I will vote “no” as suggested by The Globe and Mail, La Presse, many political leaders and a lot of legal experts and associations such as the Canadian Civil Liberties Association. Thank you. Meegwetch.

Some Hon. Senators: No.

The Hon. the Speaker pro tempore: Senator Dalphond is asking for five minutes. Honourable senators, if you do not agree, say “no.”

Senator Dalphond: Five minutes, please?

The Hon. the Speaker pro tempore: Senator Dalphond, we have to move on to the debate.

The Hon. the Speaker pro tempore: Senator Bovey, we have three minutes until the dinner break.

[Translation]

Hon. Tony Loffreda: Senator Gold, my question is on strategy. In the initial planning stages, to what extent were our banks consulted? Have they shared concerns about public perception with respect to their independence?

Like law enforcement, I know many Canadians expect their financial institutions to be independent and free from government intervention. I do appreciate that these are emergency measures, that they are targeted and temporary, but they are unprecedented.

Senator Carignan: Yes, and I am certain you will like it.

You explained that it was a problem to coordinate the various police forces to deal with the situation before us, and that this required the use of emergency measures.

In 2010, at the G8 and G20 Summits, 21,000 police officers from different police forces were called in to provide security.

At the Summit of the Americas, 6,000 officers from four different police services provided security.

Why is it that what was possible at the Summit of the Americas, the G8 Summit and the G20 Summit was impossible here, in Ottawa, and that it was impossible to tow vehicles that were parked on Wellington Street?