Hon. Julie Miville-Dechêne: Honourable senators, the government’s decision to invoke the Emergencies Act is a very rare and symbolic act that we can already assume will go down in history.

As a Quebecer, the invocation of this law and its predecessor, the War Measures Act, obviously reminded me of the events of the October crisis in 1970.

I was only 11 years old at the time, so I didn’t fully comprehend everything that was happening. I was shocked to see military vehicles in the streets and to hear that some of our artist friends had been arrested, including Gérald Godin and singer Pauline Julien.

These events were even one of the main reasons why I chose to study political science and do a number of papers, perhaps too many, on the October crisis and the arbitrary arrests under the War Measures Act.

Fifty years later, I am a senator, and I have to vote on the government’s motion to confirm the invocation of the Emergencies Act to end the protests in Ottawa. I want to say from the outset that these two pieces of special legislation are very different from one another.

When the debates on this subject began last week, it was clear to me that this was not going to be an easy decision. Whatever might be said on either side, I don’t see this as a clear-cut situation with an obvious answer.

There were certainly factors justifying a strong response from the government: the Ottawa police’s obvious inability to get the situation under control; the very organized nature of the protest, which turned into an illegal occupation of a section of Ottawa; foreign funding and support for the protesters; critical infrastructure blockades and collateral economic harm; threats, racist symbols and vandalism; the seditious nature of some of the messaging; the exploitation of children; mounting social and economic costs, including for many Ottawa residents, who had nothing to do with the protest and lived through a nightmare; and, lastly, the possibility that failure to punish illegal acts could gradually undermine the rule of law in Canada.

I would also note that the Emergencies Act, in addition to being subordinate to the Canadian Charter of Rights and Freedoms, contains several provisions aimed at preventing abuse of authority, such as the parliamentary committee and the mandatory inquiry. Will they have the tools they need to get all the facts though? Of that I’m not certain.

Should the Senate adopt the motion, the government will not have unlimited discretionary power, because the declaration expires in 30 days. That is one way the Emergencies Act is more proportionate than the old War Measures Act.

That said, as early as last week, other aspects led me to wonder whether the government had demonstrated unequivocally that the disruption in Ottawa did in fact constitute a “national crisis,” in other words:

 . . . an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.

I noted in particular that the barricades at the Ambassador Bridge and the blockades in Alberta and Manitoba were removed through the usual legal tools, without the need to invoke the Emergencies Act, and that the disruptions did not lead to any serious injuries or significant damage to property. I also noted that seven provinces, specifically Quebec, Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island and Nova Scotia, opposed the invocation of the Emergencies Act, and that several experts and specialists had expressed doubts about the need to invoke the legislation and the alleged inadequacy of the tools already available to law enforcement.

Comparing the events in Ottawa with certain other crises also brings into perspective the urgent, serious and critical nature of what we’re experiencing today. Consider, for example, the student strike in Quebec in 2012. It led to several months of protests, often at night, which involved violent clashes between protesters and police and caused a great deal of property damage. There was also the Oka crisis in 1990, which resulted in a 77-day blockade and two deaths. In both cases, the Emergencies Act was not invoked.

I also thought about some of the more recent protests abroad, including the major disruptions caused by the Black Lives Matter movement in the United States, or the Yellow Vests in France, which lasted several months and caused injuries and a lot of material damage. In each of these cases, the governments did not invoke the equivalent of the Emergencies Act.

I also note that while the government’s decision to invoke the Emergencies Act was justifiable, the measures announced seem to cast a very wide net and could set a dangerous precedent. In particular, I will mention that all citizens are prohibited from simply participating in, or travelling to, a public assembly that may be expected to lead to a breach of the peace. The very broad designation of protected places includes such places as Parliament Hill or the government buildings, where citizens have to be able to protest peacefully. Then we have the unprecedented bans on financial contributions that ordinary citizens can make to protesters.

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In recent weeks, the government has also repeatedly mentioned the international dimension of the crisis. For the government, the disruptions in Ottawa and elsewhere have damaged Canada’s image as a stable and economically secure country. These are legitimate fears, but these are not the only ones that have been expressed abroad. The Economist magazine wrote last week that invoking the Emergencies Act was a terrible idea that could make Canada a more rancorous or bitterly divided country.

For all these reasons, I was hesitant last week. There are arguments on both sides. I did not believe the government had made an unequivocal demonstration that Canada is going through a national crisis, that the tools ordinarily available to law enforcement were insufficient and that we had reached the law of last resort. But I was also aware that my perception of the Emergencies Act is coloured by my personal experience in Quebec’s history, and that in this case this law was primarily aimed at a crisis in Ottawa.

I thought that while the government didn’t deserve a blank cheque, it could still get the benefit of the doubt at least temporarily. But the reality is that the situation has changed considerably since last week. As The Globe and Mail wrote the day before yesterday:

. . . the question before Parliament is not: “Was Canada facing an unprecedented national emergency, a week ago?” It is rather: “Is Canada facing an unprecedented national emergency, today?”

Last week, there were arguments both for and against the Emergencies Act, but the changed circumstances and the basic facts on the ground have greatly strengthened the arguments against to the point where they are overwhelming.

[Translation]

The government keeps saying that it is assessing the situation from day to day and hour to hour. Our assessment of this motion also has to keep pace with the circumstances. Today, there are still some tractors and trucks parked in downtown Winnipeg, but there are no more blockades in the country. The City of Ottawa has been cleared. The most radical occupants have retreated. The extremist threat, which has existed for many years, seems more diffuse. Although some doubts remain with respect to the need for the Emergencies Act to resolve the crisis last week, there is no doubt that the urgent, critical, national crisis has passed.

In response to questions, the government claims it is necessary to maintain this legislation for preventive reasons in order to minimize the risk of new protests. I do not believe, however, that a government can invoke the Emergencies Act preventively or as a risk management tool. In every society, even in Canada, the risks will continue to exist. In my opinion, the government cannot justify using this legislation by pointing to an undefined risk, a hypothetical threat or a potential disruption.

In light of what is generally happening across the country, the government’s assertion that it has secret information about potential dangers is insufficient to justify keeping emergency measures in place. That standard opens the door to obvious abuses. This law is undoubtedly very appreciated by the police, and I commend their efficiency, professionalism and restraint. It goes without saying that this law can be useful and effective, but the issue before us today is whether it is still absolutely necessary.

The government has also stated that the decision to invoke the Emergencies Act was well received by Canadians. I have no doubt that is true. However, that is not the issue. The Senate has the privilege and the responsibility of reflecting and voting free from electoral considerations.

I also note that if the Senate were to vote against the government motion this week, it would not retroactively invalidate the decisions made and actions taken since the proclamation was made. I find this to be compatible with the legitimate idea of giving the government the benefit of the doubt with respect to the situation that prevailed last week. However, I have received no satisfactory answer on the key issue today. What threshold and what criteria will serve to determine when the government suspends the use of this act?

The real challenge the federal government is now facing is how to maintain social cohesion in an increasingly polarized society. My colleagues, Senators Kim Pate and Paula Simons, eloquently covered this issue yesterday.

I helped organize a UNESCO conference in Quebec City. Its theme was “Internet and the radicalization of youth: Preventing, Acting and Living together,” and it examined how radicalization can lead to violence. Quebec and Canada are not immune to this phenomenon. Social media amplifies all this anger, and the health measures have become a rallying cry. It is very worrying. However, it is reassuring in the short term to see that the situation on the ground has changed.

Today, I cannot see any real ambiguity that would persuade me to vote in favour of confirming the Emergencies Act. I will, however, listen closely to my colleagues’ arguments as we await the vote on Motion No. 17. Thank you.

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