Policy Roundtables Day One
What we Heard
The “policy phase” of the Public Order Emergency Commission got underway on Monday, November 28.
As Justice Rouleau indicated, the purpose of the policy phase is to assist the Commission with reviewing the “legislative and regulatory framework” involved in invoking the Emergencies Act, and in considering recommendations regarding the modernization of the Emergencies Act and other instruments.
The first panel featured a discussion by an eminent group of legal academics. Everyone was very polite and careful to use proper academic titles—professor, dean etc. It began with an explainer on the state of legal rights in Canada, as defined by the 1982 Charter of Rights. The Charter is a strong instrument to protect rights; it also places limits on rights in section 1. While we are here, Section 1 of the Charter reads as follows:
Rights and freedoms in Canada
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The exercise of the executive power to limit rights (“reasonable limits”) always depends on an understanding of the context, as the courts have allowed. A balancing consideration, sometimes complex and delicate, is always required.
The next component of the roundtable discussed the importance of protest in a democratic society. Protest may be disruptive and in its disruptive form may have real impacts on policy change in ways that other, less-disruptive efforts (such as voting in elections) may not achieve. The U.S. civil rights movement was raised as an example. But as panelists suggested the real challenge is balancing competing rights (right of protest, rights of those impacted by protest, maybe even rights to protect collective security) when these come into confrontation, and defining what are the “outer limits.”
An important question was raised about the meaning of “peaceful” protest and how this is engaged in another section of the Charter (Section 2(c)).
Here is what Section 2 of the Charter says:
2 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Note that the fundamental freedom referenced at s2c refers not to all assembly but to “peaceful” assembly.
There was some fine-grained discussion of when a peaceful “assembly” becomes defined by elements within it that may be unlawful and potentially violent. For example, what does one make of weaponized trucks as a “Freedom Convoy” element?
Social media was raised as an important factor in trying to understand the nature of protest, including the significance of expression of threats of violence, and the ability provided through social media for a small number of people to be identified as the defining “face” of the protest. Questions about disinformation, its impact on protests as a form of mobilization, and how to deal with it, were raised.
The Commissioner wanted the panel’s view about the significance of a protest becoming an “occupation”—he was mostly talking about Ottawa—and whether this puts it out of bounds as a peaceful assembly, even without a suggestion of violent acts. This is clearly an issue he will struggle with in his report.
The final issue of the morning’s panel involved the question of the intersection of the Charter and the Emergencies Act. The question is whether the uses of the Act still comport with the Charter, as it must. This will be an area to watch in the Commission’s report.
The first panel was an unusual opportunity for Canadians to better understand what the Charter protects and not. An excellent tutorial—and free!
The afternoon featured a panel on “Financial Governance, Policing and Intelligence.”
The key question here involved more specific powers provided in the Emergencies Act to “compel services.” This was interpreted in creative ways to allow for financial asset freeezes targeting individuals involved in the Freedom Convoy protests. Its a very sensitive issue, touching the fundamentals of private property.
Christian Leuprecht began with a strong statement denouncing double standards in dealing with foreign interference and the weaknesses of Canada’s financial intelligence regime, and what he claimed was inattention to financial crime. Being passionate about such issues can seem like a soapbox moment, but there are serious problems here.
Next up was Jessica Davis, who often writes on terrorist financing. She questioned the value of subjecting crowd-funding platforms to a requirement to report suspicious transactions regarding money-laundering and terrorist financing. She noted that the financial emergency measures served as a “lightning rod” for the “Freedom Convoy” and only confirmed their fears about government over-reach and their mistrust of government.
Other panelists feared the impact of the use of financial weapons more broadly on international governance. There were also practical questions about the capacities of government agencies and financial service providers to effectively use the new regulations.
Later in the roundtable conversation we came to the important question of the deterrent effect of the financial measures enacted in the Emergencies Act. In effect, did the threat of freezing accounts of people associated with the Freedom Convoy work? This is an argument that has been made during Commission hearings but as Jessica Davis pointed out not much evidence has been adduced for this deterrent effect. That is perhaps because it is hard to measure deterrence, but it remains an open question.
Whether financial tools worked cannot be divorced from the broader issues of whether they are truly lawful and what the longer term implications of such financial measures might be now that they have been made permanent in regulation.
Another, more granular issue was how the financial weapons (asset freezes) were deployed during the Emergencies Act. The powers were rushed into action with little opportunity for either the banks or the RCMP to prepare for their use. There was no real procedural fairness involved, a point made well by panelist Gerard Kennedy. On the other hand, this was an exigent move of short duration. There is no current redress mechanism and perhaps no downstream way to purge financial data following revocation of the Emergencies Act.
On the basis of what we know at this stage, no role was played by foreign state actors or their proxies in funding the Freedom Convoy. We call this foreign interference and are right to worry about it. I will leave this to experts, but I am not aware that Canada had any real capacity to identify the nature of foreign actors potentially providing funds, possibly in covert ways, to off- shore crowd funding platforms during the Freedom Convoy events.
The moderator, Patrick Leblond, raised a final point about whether using financial tools as part of the Emergencies Act might have larger affects on trust in the financial system. Panelists argued that we have to be careful about over-regulating, and about pushing people away from the financial system.
In conclusion, the panel’s view seemed to be that whatever drove the Emergencies Act, what needs urgent fixing is the actual way such financial tools were used and might be used in future.