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.

Hon. Marilou McPhedran: Good evening, tansi.

As a senator from Manitoba, I acknowledge that I am a resident of Treaty 1 territory, the traditional territory of the Anishnaabeg, Cree, Oji-Cree, Dakota and Dene peoples, and the homeland of the Métis Nation.

I would like to share a quote from the February 19 edition of La Presse:

They were well within their rights to protest, but not to block the heart of the capital and threaten its democratic institutions. . . .

In an attempt to disrupt the police operation, “patriots” flooded the 911 line with non-urgent calls, endangering the lives of the people of Ottawa.

Some even had the gall to put children between the line of police and the protesters. They used their own children as human shields.

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The so-called “Freedom Convoy” protests were ostensibly marked by a January 2022 regulation mandating truckers and essential workers crossing the border to provide proof of vaccination. The truth is that these protests are less a reaction to this mandate and more a reflection of the general frustration with the pandemic-related restrictions of the last couple of years.

Unfortunately, it has become increasingly apparent that these protests have been appropriated by more radical, politicized voices and elements to the disservice of the majority of protesters, and any legitimate debate has been subsumed by polemically divisive populism.

It is telling to note that with 90% of truck drivers vaccinated against COVID-19, according to the Canadian Trucking Alliance, the majority of the industry is sitting out the convoy protest. The Canadian Trucking Alliance and the Ontario Trucking Association have been vocal against the convoy actions and in favour of government intervention. What’s more, even if the government were to immediately lift the federal vaccine mandate for truckers, a parallel U.S. vaccine mandate, announced last October, for foreign truckers would still keep them from crossing the border. So the cross-border vaccine mandate for essential workers is clearly symbolic rather than central to these protests. Something else is happening here.

I think we can all understand and empathize with the high frustration and uncertainty that many Canadians feel regarding the pandemic. But let us also remember the many more Canadians who have lost over 35,000 of their families and friends.

Restrictions have been imposed and then lifted in ways across the country by federal and provincial governments, and they haven’t always been effectively communicated. A more profound impact on our lives than we could have ever imagined, but let’s be clear and fair. Those same restrictions — clunky, inconvenient, and perhaps from time to time intrusive, as they have been — have helped keep our country’s COVID death rate at about one-third proportional to the United States. Frustration is real, but so too is science, and the health policy and legislating for the common good has been relatively successful.

As many have voiced already, Canadians have the privilege and right to protest and demonstrate. We see this all the time. Some are small; some are large and organized. Most of us have participated in demonstrations from time to time. I certainly know my kids grew up, from the time they were in strollers, being wheeled into demonstrations, and those demonstrations were peaceful. Those demonstrations did not block anybody’s right to their life or to health care or to services that are essential.

However, jurisprudence has clarified that section 2(c) guarantees the right to peaceful assembly. It does not protect riots or gatherings that seriously disturb the peace. Furthermore, it has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities.

We recognize and accept the necessity to balance our rights and freedoms with the rule of law in our democracy. That is the essence of section 1 of the Canadian Charter of Rights and Freedoms, reasonable limits placed by a democratic process.

The protests, convoys and occupations manifested across the country with the underlying issue, supposedly the coronavirus. There’s a global pandemic that has today resulted in the deaths of more than 5.9 million people. In a Canadian context, 45,000 Canadians died in World War II, and more than 35,000 Canadians have died in this pandemic so far, with more dying every day.

This is an issue of public health and common good. This is an issue of peace, order and good government, as is set out in our Constitution.

Yes, there have been limits placed on Canadians, from the mandatory use of masks to limiting group sizes to limits on mobility, and even on business and school closures, but that has been to reduce the spread, not eradicate the virus, because we know that isn’t possible. It’s been done for the common good. It’s been done so that health workers can do their work for people among us who need health care.

We have seen incontrovertible evidence that a combination of medical and technical interventions, and equally imperative individual conscious behavioural changes, are required to effectively counter this or, indeed, any pandemic. The imposition of COVID-related restrictions and health regulations is intended to minimize illness and death in the maximum number of Canadians, and that’s exactly what vaccinations have done.

But none of us has the right to behave as though it isn’t important for someone else to protect their health. This is a balancing of rights and privileges, and a weighing of responsible and proportionate measures to respond to this crisis. In my opinion, the declaration on February 14 fit within the criteria necessary under the Emergencies Act.

When Alberta dropped virtually all health restrictions on July 1, 2021, the cases skyrocketed. Albertans were dying from COVID-19 at more than three times the Canadian average. The province was in crisis because the provincial government did not maintain health restrictions that could have kept its citizens safe. This is an issue that is at the core of what we are struggling with here in this debate.

Much of the power that has been objected to by many of the protesters actually has little to do with the federal government because of our Constitution, because of the division of powers between the provinces and the federal government.

This is really an analogue to this current debate; whether the invocation of the Emergencies Act is another form of unreasonable and, therefore, unjustified imposition of limits on our Charter of Rights and Freedoms. Yes, in my opinion, it does meet that test for proportionality and reasonableness as set out so clearly in the Oakes test by the Supreme Court of Canada.

Specific to the invocation of the Emergencies Act, I am convinced by the evidence that these protests moved beyond peaceful assembly, and the open demonstrations of citizens has been, unfortunately, hijacked by radical elements that have been using and continue to use these demonstrations to foment the movement to ferment, infiltrate, spread and move into areas that are potentially far more sinister.

To extrapolate out words from what we have seen in these past weeks, by which I refer to the border blockades and deliberate crippling of infrastructure; to weapon seizures and the charges of conspiracy to commit murder in Coutts, Alberta; to the occupation and siege of Ottawa; the documented organizational involvement of active and former military police, as well as individuals known to have deep connections to extremist groups publicly proclaiming that they want a racial war, publicly proclaiming that if there isn’t this kind of insurrection, then we will all soon be forced to speak Hebrew.

The intelligence assessments prepared by Canada’s Integrated Terrorism Assessment Centre are pertinent to this discussion. They warned in late January that it was likely that extremists were involved, and they said that the scale of the protests could yet pose a “trigger point and opportunity for potential lone actor attackers to conduct a terrorism attack.”

I remind you that according to section 83.01(1)(b)(i)(B) of the Criminal Code, terrorism is an act that is committed:

in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act . . .

We could think, for a moment, about the entire closure of the Rideau Centre in downtown Ottawa as just one example.

It is understood that demonstrations always tend to attract some extreme individuals and groups, but the apparent level of coordination and integration, as reported by ITAC and observed by other policing and security agencies, indicates clearly that this occupation has moved far from the original intentions of many of its participants. Extremist attitudes have instead infiltrated, derailed and co-opted the original voice and intent of the majority of the protesters. This irreparably changed the convoy from a peaceful assembly to something calculated and dangerous.

I want to focus my remaining remarks on some oversight and control measures provided for in the act, in particular section 59, which provides for only 20 members of Parliament and 10 senators to come together for an early end to the use of the declaration under the Emergencies Act, and section 62, which mandates the parliamentary review process.

On section 62, I wish to highlight a number of facts that are troubling and which I hope we will ensure that the parliamentary inquiry will study.

One, the presence and apparent organizing leadership of active and former Canadian Armed Forces members, as well as active and former police. Two, the presence, positioning and safety of children within the protest and how this affected policing decisions and actions. Three, the double standard in how the police have responded to the actions of this group compared to a very different use of force and arrests at some Indigenous and climate justice protests or, indeed, has been mentioned at the Toronto G20 summit. Lastly, the legitimacy, efficacy and precision of employing financial seizures as a reasonable alternative to violence or more aggressive coercive police action.

Honourable senators, many people have commented on the fact of the rather astonishing degree of peaceful dismantling of this siege, and I think we need to pay close attention to the use of the financial leverage in this way and the likelihood that this contributed to the relatively peaceful process that we saw happen in the last number of days.

With grave concern about extension of the extraordinary powers, I note that the Emergencies Act does not suspend civil liberties or Charter rights. It ensures that the Prime Minister and cabinet are not allowed to dictate without parliamentary oversight. Honourable senators, that’s why we’re here. The act requires that the declaration must be tabled in Parliament within seven sitting days of cabinet issuing its declaration.

In closing, may I just say that I will vote in favour of the declaration under the Emergencies Act, and I will also work with anyone who wishes, across all boundaries, to gather together the twenty members of Parliament and the ten senators to begin the process of ending these extraordinary powers. Thank you so much.

Hon. Marilou McPhedran: Honourable senators, my question is to the government leader in the Senate. I, too, want to thank you, Senator Gold, and your team, for being in such good form in being able to respond and also to keep calm and to engage in respectful listening. It is a model of conduct that I think we can be proud of, and I hope we will be able to continue in this way.

My question picks up on a comment you made a moment ago about trucks from the occupation still being “nearby.” My question is geared to the fact that in some circumstances the world learned from Ottawa in that the kind of occupation of Parliament Hill that has occurred for over 20 days in Ottawa has not been allowed to occur in some other capital cities — Paris, for example — because of measures that police were able to take, and they were able to take those measures without resorting to this kind of emergency declaration.

Section 59 of the Emergencies Act specifies that 10 senators and 20 members of Parliament are in a position at any time to bring a motion to revoke, under any of the four parts of the act. In this case, it’s clear that we’re looking at subsection 59(1)(a), which deals with Parts I and II, because this has been declared an emergency of public order.

My question is this: If there were to be such a motion — preferably not from any one particular political caucus — and if that were to be presented, respectfully and thoughtfully, would this kind of motion that is allowed for under the Emergencies Act have a place in our ongoing debate and our interactions with the government on this decision?

Senator McPhedran: As part of my question, I want to reinforce a point I made earlier, but let me pose a very focused question. Do we need now these extreme measures?

Let me anecdotally share that I was in Ottawa for the first days of the occupation. I tried to get to my office at ten o’clock at night and ended up getting caught in the convoy loop. There were a lot of difficulties as a result of that. I’m very grateful to our Parliamentary Protective Service, our security at the Senate, for their assistance that evening.

At that point, at the beginning, the trucks were not able to get to Parliament Hill. The police had blocked and stopped them. They were able to create tremendous disruption. They honked non-stop day and night, and people were able to get close. And we know that some of those people exhibited horrible, ugly demonstrations of racism, anti-Semitism, sexism — you name the form of discrimination; it was all on display. But the trucks could not get to Parliament Hill at that early stage, and that was January 29. So I have to reinforce my question: Do we need these extreme measures now?

Senator McPhedran: My question is to Senator Gold. Although, Senator Gold, I remain keenly interested in the section 59 motion by senators and members of Parliament crossing all political boundaries, if possible, I do have to ask if you will forgive me because I misspoke. I gave information from only my perspective, from my office, which is many blocks away from Senator Pate’s office. After I indicated that trucks had been stopped by our security forces, Senator Pate sent me a photograph taken at four o’clock on Friday, January 28, clearly showing me that there were trucks parked in front of her office on Wellington. Please, I hope you will accept this correction and the fact that I made a statement based on my limited perspective.