Hon. Raymonde Saint-Germain: My question is for Senator Gold.

On October 26, 2022, more than 12 months ago, I asked you a question about Yves Bourque, a Canadian Paralympic athlete and a victim of thalidomide, who has been forced to deal with the extremely cumbersome, even inhumane, administration of the Canadian Thalidomide Survivors Support Program, a program that the government has entrusted to the firm Epiq.

Since then, my team and I have discussed Mr. Bourque’s case with the former minister of health, Jean-Yves Duclos, and his team, and more recently, with the team of his successor, Mark Holland. I was assured that follow-up had been done with Epiq, and the former minister even publicly stated that he had put pressure on Epiq to get things moving more quickly. However, nothing has changed.

Can the government assure us that additional measures will be taken to ensure that this program can be better administered immediately and to ensure accountability to address these unacceptable delays?

Hon. Raymonde Saint-Germain: Colleagues, this is my favourite time of year because it is the only time I see Marc Gold, Don Plett, Scott Tannas, Jane Cordy and myself smiling at the same time. Nevertheless, this is a time when we must continue to negotiate and reach agreements.

I very much enjoy negotiating and collaborating with my esteemed colleagues in the best interest of all groups and, most importantly, in Canadians’ best interest. Like my colleagues, I would note that this is a time to take stock of what we have accomplished under sometimes challenging conditions. I believe we have done our work with skill, honesty, dedication and diligence.

Like Senators Gold and Plett, I would like to take this opportunity to thank all those who make our work possible. That includes the Senate Administration, the team here in the chamber, the Usher of the Black Rod, the support staff, the officers responsible for our security, the pages, our office staff and everyone we collaborate with. Let us not forget our interpreters, who enable us to understand one another, who understand us very well and who even improve on what we say by taking out some of the words.

Always in my thoughts are our colleagues, both present and absent, who are going through tough times because of their health or family issues. I hope that the break will do you good and that we will have the pleasure of being together again in September.

With fondness, I want to recognize a colleague who just voted for the last time in this chamber. He has decided to resign from the Senate after nearly seven years of distinguished service, including four years as Chair of our Committee on Internal Economy, Budgets and Administration. I am talking about Senator Sabi Marwah.

Senator Marwah, thank you for everything. On behalf of your colleagues in the Independent Senators Group, but also on behalf of the Canadians you have served with skill and dignity, thank you very much.

Hon. Raymonde Saint-Germain: Honourable senators, I will make my comments complementary to those of Senator Gold, with whom I fully agree.

My first point will be to the last point of Senator Plett, which is that this chamber has no government leader.

I believe that we have passed the stage where this objection is valid. I do believe that it should have been raised at the earliest possibility, which would have been either November 2015, or, at the very least, at the beginning of this current Parliament, because Senator Plett and Senator Housakos and many colleagues here have each and every day called Senator Gold “government leader,” and obviously it is clear that Senator Gold is the Government Representative and that he holds the powers and responsibilities prescribed in our rules to the Leader of the Government. The precedent has been set and it is now part of our parliamentary conventions.

Furthermore, the Parliament of Canada Act — the PCA — which defines the rules, customs and regulations of the Parliament of Canada itself, has been amended and now recognizes on the same level the senator occupying the position of Leader of the Government in the Senate or Government Representative in the Senate. The definition of the Leader of the Government in the Senate in the companion of our Rules is as follows:

The Senator who acts as the head of the Senators belonging to the Government party. In modern practice, the Government Leader is also a member of Cabinet. The full title of the Government Leader is “Leader of the Government in the Senate.”

Senator Gold is regularly treated as the Leader of the Government. He is afforded unlimited speaking time. Senator Gagné regularly exercises powers vested in the government leader and deputy leader position.

There is no doubt that Senator Gold is the head of the senators belonging to the government party. The PCA has been amended. His title is now recognized and the PCA has precedence over the Rules of the Senate and obviously over the website of the Senate.

To the second point regarding negotiations, I concur with Senator Gold. I have been, as have my other leaders colleagues, participating in the leaders’ meeting and it is clear that there have been offers and attempts to negotiate further to this message. I won’t refer to previous negotiations where all leaders agreed when we signed gentlepersons’ agreements, but this time it was clear there were attempts. I was not witnessing the bilateral meetings between Senator Plett and Senator Gold, obviously, but to that point, I’d like to refer you to a ruling by Speaker Kinsella on September 20, 2000, further to a point of order raised by the then-deputy leader.

Senator Kinsella ruled:

. . . the deputy leader has stated that an agreement has not been reached. I have no means of knowing whether an agreement will be reached. All I have before me is a motion stating that if they have reached no agreement at this point, the rule has been followed and the terms have been set out. Therefore, I rule that the point of order is not valid.

I do believe, Speaker, that you are in the same type of situation, because as the Speaker of the Senate, you are not part of our negotiations. You are not part of our meetings. It is not your role to read our emails, our texts or to listen to all of our conversations.

Your role is to be given a motion indicating that there has been a failure to agree to allocate time to conclude and adjourn debate, and this is why, on this ruling, I refer you to Speaker Kinsella’s ruling on September 20, 2000.

On another point, it is clear, even from the Leader of the Opposition’s comments, that there have been efforts to modernize the Rules of the Senate of Canada to reflect the practices of the Senate. There are 14 instances of “recognized parties” or “parties” in the Rules of the Senate. The only place this is not followed by the words “recognized parliamentary group” is pertaining to time allocation. I do not believe it is the intent of the Senate to render the entire sections on time allocation entirely inoperable by this inadvertent omission.

Again, I reiterate that the point of order regarding the status of the Government Representative should have been raised sooner, at the first opportunity, which is very far from us, either at the end of the year in 2015 or at the beginning of the next Parliament.

Thank you.

Hon. Raymonde Saint-Germain: Senator Gold has never been so happy to hear my voice, even though he doesn’t know what I have to say.

Senator Gold, I don’t want you to consider daily question periods from now on as boring or trivial. I promise to ask you questions that will really make you think during this very short period for questions.

Esteemed colleagues, the invocation of the Emergencies Act brings up some difficult and painful feelings for me and for many of my colleagues from Quebec. These difficult and painful feelings remind us of a dark period in our shared history.

I was 19 years old in October 1970. I was a student in CEGEP, just one year away from starting university. I already had a keen interest in public affairs and democracy, as Quebec society was in turmoil at the end of the Quiet Revolution, which led to numerous reforms based on the values of equality, solidarity, economic development and openness to the world.

When I think of the 1970 October crisis, I often think of the horror I felt after those terrorist acts were committed so close to home. I am referring to the kidnapping of British diplomat James Richard Cross and then the kidnapping and tragic death of deputy premier and minister of immigration, labour and manpower, Pierre Laporte. I’ll never forget that horror.

I then saw the effects of the application of the now-repealed War Measures Act. I witnessed a democratic and lawful society suspend habeas corpus and trample on human rights.

I was appalled when I saw union members, journalists, artists, including several poets, and other citizens be arbitrarily arrested, abusively detained, and denied their rights of freedom of expression and association. In total, approximately 500 people were quickly stripped of their freedom on the grounds of mere presumptions, with complete disregard for the most basic principles of justice.

I was astounded by the violence, intimidation and unforgiving harshness that the application of the War Measures Act inflicted across Quebec. This is the context in which I thought about the government’s decision to invoke the Emergencies Act and in which I am rising to speak today, knowing full well that the War Measures Act was repealed in 1988 and replaced with the Emergencies Act.

I am aware of the lessons the government and the Parliament of Canada learned from these tragic events. I am also aware that the invocation of this emergency legislation, a law that must be enacted as a last resort, is a first in our country’s history.

[English]

The situation now is very different from the one of October 1970. First and foremost, the current Emergencies Act, adopted in 1988, is not as drastic as its predecessor and includes more oversight measures to prevent serious abuse. The application of this act requires consultation with the provinces and territories, with which the government has proceeded. While concerning situations happened in other provinces related to what is now called the “Freedom Convoy,” so far only Premier Ford, of Ontario, has publicly stated support for its use in order to resolve the situation affecting the city of Ottawa and the province of Ontario. It would not be acceptable, however, that this act be enforced on the territory of other provinces, such as the province of Quebec, without consultation and consent from the provincial and territorial governments.

In this regard, the Premier of Quebec, François Legault, has been very clear in affirming the non-necessity of the application of this act in Quebec. I quote him in French:

[Translation]

We don’t think it is necessary, and we saw the proof last week, in Quebec City, where police forces and the Sûreté du Québec kept things under control. Also, I believe it’s time to unite Quebecers, not divide them.

[English]

It would be unacceptable if indeed this act were to be used on Quebec territory in spite of the will of the premier and, indeed, all the members of the National Assembly. Furthermore, and unlike the revoked War Measures Act, the Emergencies Act requires parliamentary oversight. Indeed, a parliamentary review committee, composed of parliamentarians from both chambers of Parliament, will diligently review the responsibilities arising from this crisis declaration. This parliamentary committee will lead an inquiry into the circumstances that gave rise to the declaration and the measures taken to deal with the crisis.

It is our duty as senators and parliamentarians to proceed with this review with the utmost seriousness and consideration.

Additionally, the Emergencies Act also differs from its predecessor by the fact that it is subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. As such, fundamental rights should not be limited or abridged, even in a national emergency. Any actions taken in the context of this act must be limited to these considerations as well as proportionate to the degree of urgency.

Finally, this act is subject to exhaustive debate and approbation from both chambers of Parliament, which we are doing today, as we are now demonstrating it.

The first question we must now ask ourselves is whether invoking the act was necessary to put an end to the occupation in Ottawa and blockades around the country.

Obviously, the situation had festered long enough and action was required. Even considering the recent successful police intervention, the infringement on the citizens’ fundamental rights had gone on too long. In the recent weeks, we have surrendered a part of our capital city to protesters. While these protesters have the right to oppose the decisions of the Government of Canada, they do not have the right to take hostage a population, to block bridges and roads and threaten the proper functioning of a democratic country.

Even strategic access points, such as highways and airports, were targeted in total contempt of the law and of the citizens’ freedom. The situation in Ottawa was illegal, highly disruptive and had its own set of security issues, which simply could not be ignored. In an extraordinary occurrence, the work of both chambers of Parliament had to be suspended because of the actions of protesters, resulting in delays in debating this crucial act. This is unacceptable.

What about the heavy economic consequences that emanated from the blockades and their inevitable impact on the Canadian economy, on local businesses and ordinary citizens? They had to be taken into consideration. Daily policing has cost at least $2.5 million, and this is with no mention of the still-closed businesses and trade delays caused by the blockade.

A second essential question we must ask ourselves is: Were the extraordinary powers conferred by the Emergencies Act really essential and really unavoidable to putting an end to the threat of another illegal occupation? Those powers are truly extraordinary: the prohibition of public assembly and travel, the order of evacuation of people and private property, the use of specific property, the power to direct individuals and companies to render essential services and more.

So now that an end was put to the illegal occupation of Parliament Hill in downtown Ottawa because of the application of the act, what justifies its application for the remaining 22 days provided for in the proclamation declaring a public order emergency? This has become the key question.

We must ask ourselves if the invocation of the Emergencies Act passes the Oakes test. What is the Oakes test? In 1986, the Supreme Court in R. v. Oakes created this two-step balancing test to determine whether a government can justify a law which limits a Charter right.

First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. Second, the party invoking section 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components.

To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective: The more severe the deleterious effects of a measure, the more important the objective must be.

I believe we had on our hands, with blockades to strategic bridges and the occupation of our national capital, an urgent issue that needed imminent action by the government. Up to now, the act was used cautiously, with restraint, and only in specific locations. For my part, I believe the positive impacts on ordinary citizens, the economy and businesses far outweigh the limitations imposed on protesters.

We can study the implications of this act in a philosophical way, but we also need to be pragmatic and realistic. The danger facing our country was real and action was needed. Furthermore, following the three-week occupation, in a letter dated February 19 and addressed to Marco Mendicino, Minister of Public Safety, and Bill Blair, Minister of Emergency Preparedness, the Canadian Association of Chiefs of Police stressed the ongoing necessity for those exceptional measures:

The prohibition of financial transactions to support unlawful assemblies is critical to bringing a peaceful termination of these assemblies, as well as serving as a deterrent for other pop-up illegal assemblies.

I tend to agree that while we have made tremendous progress in the last few days, we are not out of the woods yet. Extraordinary measures, such as the ability to freeze financial assets and control people travelling to strategic locations, is still very much necessary until we are confident that control is regained and that protesters have gone back to their homes.

The fact is that tensions are still running high in Ottawa. In the last few days, and particularly following the police intervention, staffers from my office, as well as, I am sure, those of many of my colleagues’ offices, have been subjected to abuse and violent threats by supporters of the so-called “Freedom Convoy.” Those threats came from domestic as well as foreign individuals, people calling for the government to be overthrown and sometimes, too often, for the Prime Minister and for members of the government to be executed.

In these times of high tension, we must remain vigilant to keep the peace that the police intervention allows us to enjoy here in Ottawa. I believe we must also have in mind the concept of the precautionary principle when deciding whether to extend this act for a period of 30 days. While we don’t know with absolute certitude if this act is necessary to retain law and order in our country, we do know that we can’t go back to illegal blockades and unlawful occupations.

That being said, I will now raise the concerns I have with further empowerment of the police with such extraordinary tools. By doing so, we need to ensure that we are not opening the door for abuses and infringement of rights. Are the checks and balances provided in the act sufficient to prevent abuses?

From what we have seen, we must congratulate our police forces for their professional and efficient way of removing children, vehicles and protesters. They have done so, for now, with tact and without serious injuries or death, despite the clear attempts at disinformation, namely false accusations of police brutality and harm to protesters.

Of course, the parliamentary review committee will be able to judge after the fact the judicious use that will have been made of these extraordinary measures allowed by the act, but this is not what we are debating today. Today we have to consider consent for the implementation of the Emergencies Act to be extended for the full 30 days, that is, an additional 22 days from today. What guarantees do we have that the intentions behind it is to ensure a return to public order and that it will not be usurped by the abuse of the extraordinary powers it once again confers on the police forces and the government?

I must also mention that although many of the protesters may have valid intentions and legitimate concerns, we cannot ignore the extremist movement being associated with the protests. We have all been shocked by the racist displays circulating freely around Parliament Hill, metres away from our highest democratic institution. It simply cannot be tolerated. This association with the extreme ends of the political spectrum is not limited to the displays we have seen. It has been well documented in the last weeks by government ministers and experts, such as David Morin, professor and co-chair of the UNESCO Chair on the Prevention of Radicalization and Violent Extremism.

The situation we found and still find ourselves in is a failure, a failure resulting from what many independent and renowned safety experts have assessed as a lack of foresight followed by initial bad management from the City of Ottawa and the Ottawa Police Service.

These questions will have to be explored by the parliamentary review committee to ensure a similar situation does not happen again. We must learn why it is that the Ottawa police authorities did not take necessary and timely precautions to prevent this illegal occupation, while other cities like Toronto, Coutts, Windsor and Québec City were able to manage in similar circumstances.

Invoking the Emergencies Act should never have been required, but I am now left with the unpleasant impression that this measure was and still is necessary. It is now far too late, and we cannot repair the damage that resulted from the initial ineptitude of local authorities. We can only continue to mitigate them and manage the enforcement of the act in a sound, balanced and professional manner as we have done in last few days.

Therefore, I have come to the conclusion that increased powers were needed to deal with this quagmire and are still needed to maintain order in our capital. Who here in this chamber can say with certitude that, without the invocation of the Emergencies Act, the situation would have been resolved peacefully?

However, this does not mean giving carte blanche to those increased powers. In the February 14 announcement of his decision to invoke the Emergencies Act, the Prime Minister said that the actions taken would be, “. . . reasonable and proportionate to the threats they are meant to address.” This was a strong commitment, and we could then only hope that it would prevent any form of abuse. So far it has worked, but we still can only hope, because we have no guarantees for the remaining 22 days.

This commitment still lies in the confidence and capacity of the police forces to act and to succeed without the military being called upon. The police, under the provisions of this act, are empowered to resolve the issue, and they have proven to be up to the task in the last few days. I am satisfied with the recent actions of the police. I only hope that this trend will continue and that we will not witness any kind of abuse that results in the situation worsening.

In a democracy, the right to free expression is vital if and when it is expressed peacefully. I wish for a continued and measured application of this powerful act, with respect for our Charter of Rights and Freedoms, as well as principles of justice. At this stage, when we must acknowledge the failure to maintain law and order through normal means and channels, do we have the choice to deny competent authorities the exceptional powers and measures they still deem necessary to maintain law and order? Could these measures ensure that the citizens of Ottawa maintain the freedom they have finally found after difficult weeks of occupation? Will they allow businesses and their employees to get back to business? I would not want to be guilty of having taken a risk that would deprive them once again of their precious rights and freedoms. Those people have just gotten their freedom back. We now have to act cautiously.

Colleagues, had we been discussing the enforcement of the War Measures Act — the repealed law — today, I would never have voted for it. But we are not. The courts will likely also have the responsibility of judging the constitutionality of this act and its compliance with the Oakes test.

For my part, given the parliamentary responsibility that we now have to fulfill, and out of precaution, given the lack of certitude, I will vote in favour of the confirmation of the application for the remaining 20 days or so of the Emergencies Act — unless the government, which still has this option, deems it appropriate to put an end to the act earlier on the advice of the relevant authorities.

I will vote in favour of the confirmation of the application of the Emergencies Act, but I do so with deep regret. I will do so trusting that these extraordinary measures will continue to be targeted and taken with discernment. I will do so with the utmost reserve and with a precautionary principle in mind once again. By refusing to confirm the implementation of these exceptional measures, I would not want to be complicit in maintaining contempt for our democracy. Thank you. Meegwetch.

Hon. Raymonde Saint-Germain: Senator Gold, would you take another question?

Hon. Raymonde Saint-Germain: Would you take a question, Senator Gold?