Hon. Pierre J. Dalphond: Honourable senators, in April I rose to express solidarity with jailed Russian opposition leader Vladimir Kara-Murza. After courageously returning to Russia, despite two assassination attempts, he was arrested under new laws criminalizing dissent.

Recently, he was charged with high treason for opposing the war against Ukraine.

Yet, Mr. Kara-Murza’s criticism of the Putin regime reflects the truth. This is evident by the overwhelming United Nations vote last week to condemn Russia’s “attempted illegal annexation” of occupied regions in Ukraine. The truth cannot be a crime.

Let us reaffirm that we stand with Mr. Kara-Murza — a star of hope in the Russian sky. This week, we are honoured to host in our capital his wife, Evgenia Kara-Murza, the project manager of the Free Russia Foundation. We are also honoured to host two of his advocates: the Honourable Irwin Cotler, appointed as the Special Envoy of the Parliamentary Assembly of the Community of Democracies in the Case of Vladimir Kara-Murza; and Bill Browder, head of the Global Magnitsky Justice Campaign.

They thank us for our Magnitsky Law and call for more sanctions against oligarchs who are often proxies of Putin to hide his wealth, and also to ban Russian officials involved in Mr. Kara-Murza’s persecution.

On October 10, on her husband’s behalf, Evgenia Kara-Murza accepted the Václav Havel Human Rights Prize in Strasbourg, awarded by the Parliamentary Assembly of the Council of Europe. In a statement read by his wife, he dedicated the prize to the many thousands of Russians jailed for speaking out against the war who choose not to remain “. . . silent in the face of this atrocity, even at the cost of personal freedom.” He added in the statement read by his wife:

. . . I look forward to . . . when a peaceful, democratic and Putin-free Russia returns to this Assembly and to this Council; and when we can finally start building that whole, free and peaceful Europe we all want to see. Even today, in the darkest of hours, I firmly believe that time will come.

Senators, let’s stand with the Kara-Murzas, the advocates working with them and all those in Russia who dare to speak against Putin’s war crimes. Thank you, meegwetch.

Hon. Pierre J. Dalphond: Honourable senators, I rise in strong support of Senator Omidvar’s bill, Bill S-217, the Frozen Assets Repurposing Bill.

This is an important piece of legislation with the potential to build international momentum against human rights abuse and corruption, as well as to help improve the situations of victims of these people. Senator Omidvar first initiated this bill almost three years ago and I hope we will collectively give this matter some priority with committee study in the near term.

Bill S-217 builds directly on another important Senate initiative, that of former Senator Andreychuk, who led the passage of the Sergei Magnitsky Law in 2017 with Bill S-226. That law now allows for the seizures, freezing or sequestration of assets in Canada of corrupt foreign nationals responsible for human rights violations or corruption.

In Canadian law, assets may also be seized, frozen or sequestered under the Special Economic Measures Act which deals with sanctions, and the Freezing Assets of Corrupt Foreign Officials Act, which deals with requests by foreign countries in turmoil.

This bill will take the next logical step by providing a mechanism to distribute frozen assets to appropriate individuals or organizations.

This distribution will take place according to the five principles Senator Omidvar described in her speech in December: first, accountability for human rights abusers; two, justice for victims; three, due process in court for any distribution of assets; four, transparency in terms of both the identity of the officials and the value of their frozen assets; five, compassion with meaningful actions to the repurposing of resources to help vulnerable people.

Establishing this proposed law will further advance Canada as a leader in human rights. Senators can be proud to break this new ground together if we have the will to act.

On substance, Bill S-217 is nothing to fear. The concepts are already well established in our domestic law relating to the proceeds of crime, such as in the Seized Property Management Act. For this reason, I would suggest that this legislation is ready for expert input on the details at committee.

For example, I will note an interesting debate involving the Honourable Irwin Cotler and lawyer Brandon Silver of the Raoul Wallenberg Centre for Human Rights in Montreal, and the Honourable Lloyd Axworthy and our colleague Senator Omidvar.

The subject of that debate, published in Policy Magazine in 2020, was to what degree frozen assets should go to individuals affected by the wrongful actions, through individual claims, as compared to a more population-focused approach, at judicial discretion. This is a question within the principle and scope of the bill, appropriate for committee consideration. I look forward to hearing expert perspectives.

I would also note that under section 8, Bill S-217 permits distribution to both affected individuals and populations as appropriate to the circumstances, including through contributions to humanitarian relief. I’m sure that would be very useful to Ukraine.

With worsening human rights crises around the world, Canada must always take a stand for what is right. In some situations, this is best done through diplomatic channels, and in other situations through legal, parliamentary and public communications avenues. In some situations, all these avenues may have to play together, but they always play beneficial roles.

In this chamber, we have the benefit of advice on optimal approaches from colleagues with expertise in foreign affairs like Senator Harder, Senator Boehm and others, as well as the benefit of advice on international human rights, legal avenues, from colleagues like Senator McPhedran, Senator Jaffer and others.

On this point, I will note the successful collaboration in this chamber that led to the Senate’s adoption of a motion in June of last year regarding the Philippine government’s unjust and arbitrary detention of Senator Leila de Lima.

With Bill S-217, we have a clear opportunity to improve our domestic law to better address foreign human rights violations, and in so doing to improve the situations of victims and encourage positive action in the global community. We should seize the momentum.

Thank you to Senator Omidvar on this important initiative, and I think that the time has come to send the bill to committee.

Thank you, meegwetch.

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.