Hon. Brent Cotter: Would the honourable senator take a question?

Hon. Brent Cotter: Will Senator Tannas take one more question?

Senator Cotter: This is a difficult question for me to ask, Senator Tannas, and I generally don’t do this. I did appreciate the heartfelt nature of your remarks and I’m in many respects entirely sympathetic to them. My question, I guess, is that if we were all to agree with you, we would all vote no to this motion. The problem with voting no, it seems to me, is it is impossible to distinguish whether we are sending a message that the emergency should have never been declared or it was legitimate to declare but should be cancelled out now.

I’m sympathetic to that tension, so I want to ask you this question: The legislation contemplates a power in us, with twenty senators to sign it, to initiate a process to bring this to an end. So I guess I’m inviting the question of whether — to meet the description and goal that you have in mind — we ought to endorse the Emergencies Act and then move for its revocation. By that, we would state the legitimacy of the resolution but the need for it to now be cancelled. I guess I’m interested in knowing whether that’s a better course than our consideration of the very points that you make. Thank you.

Senator Cotter: I really enjoyed the remarks, Senator Plett. I thought they were thoughtful, deep and meaningful and heartfelt. My question is a technical one, and I think it’s an important one. It’s the dialogue that Senator Tannas and I had earlier about what is the time at which we are making this decision.

I’m a lawyer. Sometimes it’s an advantage; sometimes it’s a curse. I don’t want to pose this as some kind of a legal trap, but I want to describe what I think the meaning and intention of the legislation are and invite you to comment. I won’t ask a follow‑up.

The government issues the declaration. They are required then to table the declaration. They are required to table their justification for it — the report, the information about their consultations, and all of that — in relation to the declaration they issued. That comes to us. One would have thought, in the normal course, that that’s what we’re deciding on — whether the case that they made and presented to us was good enough.

The reason that seems to make sense to me — I think maybe Senator Tannas and I disagree — is when you turn the page then, there’s another option, which is, for a group of us, if we think it’s the right course, to initiate a process to revoke an already existing declaration.

That seems to me then to invite us to focus our attention on a thumbs-up or a thumbs-down to the government issuing the declaration and the case it presented to us for justification, so not so much today but presumably last Tuesday or Wednesday or whenever the day is that we should focus on. I won’t ask a follow-up. I’d really appreciate your view about whether that was what the legislation really intended for us to do.

Hon. Brent Cotter: Honourable senators, I want to begin by thanking colleagues for their deep and thoughtful remarks in this debate, even when we disagree.

I’m going to be speaking in support of the declaration, and I want to speak to three aspects of the issues. The first is personal, the second I would call decisional and the third institutional.

The personal. In the fall of 1970, I was in my final year of business school in Saskatoon. On a Saturday evening in late October, I attended a party at somebody’s house. As I arrived at the party, there was a group of six or eight young men, nearly all of them business school classmates, engaged in a heated discussion with one other person. The business school group was supporting the imposition of the War Measures Act in Quebec, the need to get lawlessness under control, and if a few rights got trampled in the process, a small price to pay.

The one other person was a law student. He patiently made his case to the effect that people were more than the sum of their economic parts, that they are sentient beings with rights and obligations that are the essence of who we are as humans.

I stood at the edge of this debate and listened. To be honest, I hadn’t thought much about these issues and human values. It was, for me, a life-changing moment. That eye-opening discussion was the single-most important influence in my decision to go to law school and begin a career in law. Rights and laws and the rule of law have come to matter a lot to me.

In a remarkable way, that moment and the influence of that law student, Henry Kloppenburg, now a brilliant, principled, courageous and somewhat eccentric Saskatoon lawyer, set me on a career path that brings me to this moment and probably the most important decision today that I will make in my professional life.

Now to what I will call the decisional. I won’t speak about Charter of Rights issues, but I would associate myself with the remarks of others, including Senator McPhedran, on this point. On the decisional, I think it is important to remove from consideration in our discussion and decision the argument that if something had been done earlier and better, we wouldn’t be in this fix. And therefore, we are entitled to withhold approbation of the emergency declaration. I agree that various actions by various actors could have been averted and moderated this crisis, but that is not the test today. It is, having gotten to where we are, is this declaration a reasonable course to be taken?

Here is another way of looking at it. Many have written that wiser decisions taken in 1919 or 1935 or early in 1939 might have averted World War II. Well, tragically they weren’t. But can you imagine if we were exercising this emergency power in 1939, we would have said that because somebody else did a lousy job averting war earlier, we would not join the war effort in 1939? To ask the question is to answer it.

On the question of a threshold for deciding, I’ve read widely the case of those who assert the threshold has not been met and the case of those, including the cabinet, who assert that it has. I have some background on these questions, but to be better informed I retained a distinguished constitutional law expert, Professor Wayne MacKay, to advise me. He’s a professor emeritus at the Schulich School of Law at Dalhousie in Halifax. In so doing, he identified 12 features, features of concern, that take us into the realm of national emergency. Virtually every single one of them has been mentioned in the debate today.

Nearly all of these are related to unlawful conduct. Some of this conduct could unquestionably have been addressed using existing powers, but much of it, particularly in Ottawa, could not have been achieved, certainly not without much more serious adverse consequences than actually occurred, and that’s important.

I want to focus primarily on the situation in the nation’s capital. I’m deeply troubled by this. We have seen protests in Ottawa before. They have been, for me, a sign of the health of our democracy. We have to get back to that state as soon as we possibly can. And I’m fine with people coming to Ottawa to protest in favour of courses of action that are unrealistic or legally impossible — say the removal of the Prime Minister by the Governor General and the Senate. But I’ve never seen protests of the like that we’ve seen over the last month where protesters transitioned their protests into an occupation of the centre of our nation’s capital and sought to leverage this illegal occupation to advance their various grievances but also, within some corners of that protest, some dark corners, to actually leverage the removal of the government by other than legal and constitutional means.

And exactly where was this illegal occupation occurring? Within metres of the beating heart of our national democracy and within metres of the office of the Prime Minister of our country.

Equally compelling for me in this argument is what happened when the emergency orders were exercised. One was the designation of the area around Parliament as essentially a no-go zone. Given where things had evolved to earlier last week, gaining control of this part of Ottawa effectively and with as little conflict as possible could only have occurred through the special powers conveyed by the regulations.

Second was the pressure put on the physical assets of protesters that coerced many to withdraw from the no-go zone, either with or without their trucks and other property.

Third was the use of the special authority to block a number of protesters’ access to funds which would otherwise have prolonged the occupation.

Lastly, I do not discount the benefit of expediting police actions, particularly in the rapid development of strategies that were exceptionally effective, professional and respectful of the rights of even the most difficult citizens, as Senator Plett and others have observed.

I’ve been involved in police oversight for nearly a decade. I have never seen such disciplined and effective policing in my life. I would add that there’s lots of blame to go around in this crisis, and public confidence is rightly shaken, but one upside is that the public confidence and pride in our law enforcement brothers and sisters has been greatly enhanced in this country.

I note that the police and police leaders, whom we have rightly praised in this chamber, have virtually universally stated that the authorities conferred by the declaration were necessary to resolve the crisis. In that respect, it seems unfair on the one hand to praise them and their efforts and then, on the other hand, to disregard their heartfelt and professional judgments of what these authorities needed.

Here is what is most compelling to me. These powers made it possible for the law enforcement officers to gain control and resolve this crisis in the safest and most honourable way possible, using these tools they said they needed and then used to do their jobs in ways that made all of us proud.

When all of this is added together, it satisfies me that the case has been made for the invocation of the emergency declaration.

Now to the institutional question, essentially how we should look at, how we should think about, our authority if we are to exercise it honourably. I want to make five points.

The first is about the Emergencies Act itself. Unlike the War Measures Act, it is a product of extremely careful modern thought — not perfect, as people have noted, but infinitely superior to its predecessor. I observed the work of the Mulroney government in 1988, and special credit goes to the Justice minister of the time, then Justice minister Ramon Hnatyshyn, a decent, fair-minded, much admired, even revered, son of Saskatchewan. The government put in place remarkable safeguards that were previously non-existent. I won’t repeat them here; I think you’ve come to know them well. They are remarkable, powerful, though imperfect, accountabilities.

My second point is that when we apply our minds to the use of this authority, I think the question for us is this: Was the decision of the cabinet a reasonable one, not necessarily the correct or even the best one but one of a reasonable range of decisions in the circumstances?

My third point in support of this is that the test for reasonableness seems to me to be a compelling one. We are essentially reviewing an administrative decision taken by the cabinet of our country. When this is done, provided the basic tests are met, the circumstances usually call for a significant degree of deference owed to the decision-making body. A common one to justify that is that the decision maker has special expertise. In our situation, I would not go so far as to say that a cabinet, any cabinet, has special expertise, but it often has more information available to it than we do. Here I think I am inclined to join the discussion of a couple of senators earlier on this question. Senator Lankin raised this question earlier as well.

Some of that information is not available to us and probably, in this context, should not be. To my mind, this has a certain equivalence to special expertise that is owed deference.

Here I’m not saying anything about this particular cabinet. It is a point regarding the institution of cabinet. Indeed, I would have made some decisions differently if it had been me, but the entity of the cabinet, any cabinet, is entitled to this deference, which in decisional terms means that we should support a decision that is in the range of reasonable decisions, of which I think this was one.

The fourth point relates to who we are. We are, by section 58(7) of the Emergencies Act, given co-equal authority with regard to the review of the emergency declaration, which we are doing now. This is a great power. The greater the power, the greater the responsibility we have to exercise it in a principled way. In this context, I want to make a few short points.

First, we are exercising a democratically granted authority. Secondly, a significant majority of the people in this country who are part of that democracy support the issuance of this declaration. This is not always determinative. We have duties that often cause us not to be bent by the will of the majority, but it is noteworthy in democracy terms. Third, a majority of the elected representatives in that other place have voted to support the declaration. This does not require us to do so as well, but it does encourage deference to the country’s democratic values, which we hold dear.

If we reach a different decision and revoke this declaration, we must be very clear in our minds. We must be convinced not only that the issuance of the declaration was incorrect, but that it was not even within a range of reasonable decisions this government could have made. Anything less is a failure of sober second thought, essentially a usurpation of democratic decision making.

That is related to my fifth and final point, what I would call consequential. I think we are all agreed, whether there is or is not sympathy for protesting occupiers, that much of their actions were illegal, and in some quarters the goal was to displace the sitting government through other than democratic means.

Many have observed within this chamber and in the other place and elsewhere that a vote on this emergency declaration is the equivalent of a confidence vote. I recognize Senator Dalphond’s observations, but I think we can say that this is an unbelievably serious decision for us to be taking. I don’t think we’re in the business, in this house, of confidence votes, but if we vote to revoke the declaration, it will have virtually the same effect or message. We, as a non-elected body, may well be creating the conditions that bring an end to this government. By doing so, we may well then achieve for the most seditious of the occupiers, exactly what, through their illegal occupation of our country’s capital, they most devoutly sought.

If you are inclined to revoke the emergency declaration, I urge you to give all of these implications very serious thought.

I would go further. It will invite questions in many quarters, perhaps more so than have ever occurred, regarding the legitimacy of this very institution. If we take this path, people are sure to begin asking of us not just who we are, but who do we think we are. Thank you.