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.

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[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 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?

Hon. Mobina S. B. Jaffer: Leader, first of all, I want to thank you for your very comprehensive speech. I know many of us will read it a number of times. Thank you also for answering all our questions.

Senator Gold, this is a question very different from all the questions you have been asked. We have spent a lot of time talking about the current state of Canada. We have talked about protests, blockades, trade disruptions. I’m sure everyone in the chamber would agree that the current state of affairs is very troubling.

Leader, while we work to discuss where we are and where we need to go, I think we also need to — especially this inquiry and find further ways to look at the root causes of what got us here. In the public inquiry and even earlier, you said that the inquiry itself will be a post-mortem.

So my question to you: Will this inquiry not only look at why the act was invoked, but also look at what led to this situation? Specifically, will the inquiry look into how the root issues, which underpin the mass occupations we have seen across Canada, contributed to the creation of the situation? Thank you, leader.

Senator Quinn: It’s very difficult, having worked in emergency situations in another life, to not be able to have access to all that vital information to help the decision-making process. Nevertheless, earlier we talked about the possible post‑mortem — I’m not sure if that’s the right language. Does this committee, as I understand it, have a specific life? When the emergency ends, does it have a week or two or will it be extended or have a life that will allow it to be part of any post-mortem that may take place?

Hon. Frances Lankin: Senator Boehm, I don’t know if you’ll have a chance to answer this, but your role in the Summit of the Americas as well as your knowledge of the G20 and G7 meetings have been referenced as examples where we were able to coordinate police resources. How many months of planning went into that? How much time was there to actually deputize police?

The Hon. the Speaker pro tempore: Okay.

Senator Moncion, time is up. Resuming debate, Senator Moodie.

[English]

Senator Gold: I already answered that question, but out of respect for you, honourable colleague, I will try to provide a brief answer. I sincerely invite you to study the measures, because they were put in place not in a comprehensive way, but in a coherent way, so that each one reinforces the other. The dissuasive impact of a potential financial penalty, the very real possibility of being charged under the Criminal Code or other laws, in addition to other tools for quickly deploying enough force to counter the numbers and the determination of those who had set up camp in Ottawa: all these things gave our police officers a few days to completely change the situation in the streets. It is true, and I completely understand that people think it’s important to examine certain aspects of the matter in isolation, but we have to look at the combined effect of these measures. That is how these measures were designed and deployed. I hope that provides a bit more context to an answer I already gave.

Senator Gold: Thank you for your question. There are different categories of information with different levels of protection and different levels of access. As you note in the text of the act, every member of the parliamentary review committee would be required to take an oath of secrecy as set out in the schedule. But there is nothing in the act that requires members to have been given a security clearance, such as, for example, members in this chamber who sit on the National Security and Intelligence Committee of Parliamentarians, or NSICOP, have been required to go through and which gives them access on an as-needed basis — not at large; even that is constrained — to information that is otherwise not made public to parliamentarians under any other circumstances.

So, of course, it is important — to return to your question, Senator Quinn — in order for the parliamentary review committee to do the job we expect it to do, the job that the drafters of the bill expect it to do, that the committee needs to and will have access to all relevant information that is made available. In this case, and you alluded to it, there will be some measures — not intelligence information I hasten to add, but certain regulations that may be promulgated. There are none that exist now and there are none that are contemplated, as I said. But were such regulations to be promulgated that by the operation of the Statutory Instruments Act could not be for reasons that it contains confidential information published in the Canada Gazette and therefore available to the public, then, yes, that committee would have access in private to that information to help it inform its decision. Again, I hope that answers your question.

Senator Black: My question is related to agriculture, which I know is no surprise to you or my colleagues here in the chamber. The question refers to the use of the term “critical infrastructure” under paragraph 2(1)(b) related to prohibition and public assembly, which does not confer upon the Minister of Public Safety the power to designate additional places, similar to the designation of protected places per 6(f) of the regulation.

The Emergency Measures Regulations provide a definition of critical infrastructure, which is not reflective of the importance of agriculture supply chains here in Canada and to the world. For example, the definition does not include agricultural processing and distribution facilities, like the food terminal in Toronto or processing plants across the country, most of which are located on private property and not on federal or provincial land. This means that the regulation which prohibits assemblies that interfere with the functioning of critical infrastructure does not include many of these agricultural supply chain vulnerabilities. Further, it means that the Emergency Economic Measures Order does not cover financial activities designated to disrupt agricultural processing and distribution facilities. By contrast other essential services, like ports and hospitals, currently fall within the scope of the order.

Senator Gold, why is the agricultural sector not included as critical infrastructure? Is this an oversight? And while we have been told agriculture supply chains are included under section 2, the actual buildings used for the food processing and distribution would not be. Would the government support efforts by the Senate to amend the Emergency Measures Regulations pursuant to subsection 61(3) of the Emergencies Act related to this necessary change?

Hon. Pierre-Hugues Boisvenu: Senator Gold, will you take another question?

The Hon. the Speaker pro tempore: Do you have a question, Senator Carignan?