Hon. Pierre J. Dalphond: Would Senator Tannas agree to answer another question?

I would like to thank you for your comments and ensure that I understood correctly.

You explained earlier that we must look at the situation as it stands today. If I understand the legislation correctly and if, between nine days ago and now, we had found out that a million bank accounts had been seized and the associated financial transactions had been halted under the economic measures order, it would be a bit surprising for the Senate to confirm the declaration only to engage in a process the following week to revoke the use of the act or declare that the application of the legislation should end.

If I understand correctly, we must look at the situation as it stands today, including the impact the declaration has had, which has been positive in some ways and negative in other ways, before voting.

Have I understood that correctly, Senator Tannas?

[English]

Senator Dalphond: With pleasure.

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.

Senator Dalphond: Five minutes, please?