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

The Hon. the Speaker pro tempore: Honourable senators, we have completed a second round of questions. Senator Gold, do you wish to continue with questions?

Senator Gold: The answer is yes.

Senator McPhedran: I stated that at the beginning, Your Honour. My question to Senator Gold was whether he would forgive me for that partial information.

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

Senator Gold: Thank you for your question. By the time the convoy arrived in Ottawa, circumstances made it clear that existing measures could not be effectively applied. The convoy that arrived in Ottawa was not an isolated convoy, independent of that which shut down Coutts, Emerson or, indeed, has found its way, with different degrees of impact, to many other cities.

The government took the decision when it was clear that not only could the situation in Ottawa not be handled in the way in which it was handled in Coutts or elsewhere, but also out of an understanding and recognition that these were not isolated, disconnected phenomena and that unless and until the situation in Ottawa was resolved — properly, peacefully, but effectively — there was a likelihood that the movement, inspired and emboldened by its success in literally taking over control of the streets here, would simply continue to disrupt Canada, the lives of citizens, our economy and our national security.

Senator Gold: Again, with your permission, I’m going to simply take my cue from Senator Moncion. I have been asked that question many times. My speech addressed it and the declaration is clear. I really believe I have provided the best answers I could, senator.

My speech, Hansard and the declarations will have to speak for themselves.

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 Moncion: I wasn’t finished my question.

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.

Senator Carignan: I’m too embarrassed to say no, so I’ll say yes.