Volume 32 (November 28, 2022)

Robert Leckey, Prof. (Law – McGill University)

Merci beaucoup, Monsieur le Commissaire. Donc, je suis Robert Leckey, le doyen de la Faculté de droit de l’Université McGill. J’ai le plaisir de vous présenter les panélistes ce matin. Brian Bird, Assistant Professor, Peter A. Allard School of Law, University of British Columbia. Jamie Cameron, Professor Emerita, Osgoode Hall Law School, York University. Jean-François Gaudreault-Desbiens, Professor, Faculté de droit et Vice-recteur de la planification stratégique et des communisations de l’Université de Montréal. Vanessa MacDonnell, Associate Professor in the Common-Law section of the Faculty of Law, University of Ottawa. Also co-director of the U Ottawa Public Law Centre. Carissima Mathen, Full Professor in the Common- Law section of the Faculty of Law, University of Ottawa. And Richard Moon, full Professor, Faculty of Law, University of Windsor. This roundtable aims to lay out the foundation and framework for the fundamental freedoms under the Canadian Charter of Rights and Freedoms; rights to freedom of expression, assembly, and perhaps association. Protesters regularly exercise these democratic rights, and governments seek to justify limits on those rights. I think there will be a consensus on the importance of these rights of democratic participation, and the need for sound justifications for limiting them. Beyond that, Commissioner, it's possible that one takeaway will be that reasonable people disagree on the complex challenges of fleshing out and concretizing these rights in our free and democratic society. We have a lot to address this morning, and I remind participants of the need to keep their answers concise. We’re going to kick off with a brief primer on the Canadian Charter of Rights and Freedoms, perhaps set against the history of rights protection in this country; rights have not only been protected through entrenched Bills of Rights. And so we’ll have a little introduction to that, including the notion of substantive rights, and limitations on them, and we begin with Professor MacDonnell.

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Thank you, Dean Leckey. So in terms of setting the stage for today’s discussion, it actually does make sense to actually go back a little bit further than 1982 when the Charter was enacted, and to just touch briefly on Canada’s history of rights protection, because we do have a longer history of rights protection in this country. The common law has long protected rights in Canada, and Canada also has a history of statutory protection of rights, most notably at the federal level through the Canadian Bill of Rights, which is an ordinary statute which, in the 1960s, codified a set of rights and freedoms. Now, this pre-1982 history is certainly not an unblemished one. It’s part of a broader history that includes notable failures in rights protection, and so that needs to be acknowledged as well in discussing Canada’s pre-1982 history. So that brings us to 1982 and to the Charter, which formed part of a package of constitutional reforms that included the recognition of Aboriginal and treaty rights and a domestic- amending formula. So the Charter creates a catalogue of judicially enforceable rights and freedoms. Some of these rights and freedoms are a part of many constitutions around the world. So you'll hear us speak today about the right to free -- or to freedom of expression, to the right to equality, the right to vote possibly. These are all core guarantees that are found in most bills of rights. There are other aspects of the Charter that are unique to Canada, and that would include, for example, the language rights provisions of the Charter. As Dean Lucki mentioned, the Charter is constitutionally entrenched. That means it's supreme law, and that laws that are enacted that are inconsistent with the Charter are of no force or effect. The Charter also prohibits state actors from violating rights, and so that means that state actors must conduct themselves in ways that are compliant with the Charter. And so that brings us to another important foundational point, which is that the Charter binds state actors. And what that means is that the state is bound to respect constitutional rights, but there aren't rights that are held as between private parties. Some of the rights and freedoms that you'll hear us talk about today are -- include the fundamental freedoms, so freedom of expression, freedom of association, freedom of peaceful assembly. These are the core rights that are engaged in the context of a public protest. But there are also rights here that may not be immediately obvious, but which form an important part of the discussion. And so those include section 7, which is the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice and section 15, which is the right to equality. To the extent that arrests or detentions were made in connection with the protests, the rights of accused persons found in section 7 through 14 of the Charter are also relevant. So what do these rights mean? How have they been interpreted? Well, the meaning of the Charter and of individual Charter rights has developed over the last 40 years, largely through adjudication in the courts but also through the involvement and interpretations of political actors. And I think it's fair to say that in complex situations like the ones that gave rise to the convoy, there are complex rights issues. And so in discussing how Charter rights were implicated as part of the convoy, it's important to surface all relevant rights, the rights that were potentially violated as the result of the state response, but also the rights that were protected by the state response, because I think it's clear that the state in response to public events like the ones that we experienced have an obligation to respond in some way. And so I'm going to turn things over to my colleague, Professor Mathen here in a moment, but perhaps I can sort of set things up a little bit by saying that Charter issues when they're adjudicated are adjudicated really in two stages. And so at the first stage, the question is are rights engaged, have rights been limited. And if there's no rights violation, that's more or less the end of the story. If a right has been violated, the second step in a Charter analysis is whether any limits on rights have been justified. And so I've really been speaking about that first stage of the analysis and I'll turn things over to Professor Mathen to speak about the second stage.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor MacDonnell. Professor Mathen?

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Carissima Mathen, Prof. (Law – University of Ottawa)

Thank you very much. Section 1 of the Charter states, "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." Its purpose is to guarantee all the rights and freedoms in the Charter and to state that those rights are subject to reasonable limits. Now the fact that rights would be subject to any limits might seem counterintuitive but, in fact, in most constitutions there are very few absolute rights. A concern that might be raised about section 1 in particular is that it appears to undermine the way that we understand something as a right because of its reference to democracy, which might suggest that rights can be reasonably limited if a large enough majority in society wants them to be. Sometimes we refer to this as the tyranny of the majority, the idea that in a democracy, minorities can be vulnerable if they lack political power or are very unpopular. Section 1 does not operate that way. For something to be a reasonable limit, it is not enough that a majority, even a super majority really wants that limit. This is because the reference to democracy is not to majority wishes alone but to a broader conception, what does it mean to be a free and democratic society. Section 1 exists not as an exception to rights based on the wishes of a majority but as a confirmation that rights are essential in a democracy. Like everything in the Charter, section 1 is a legal tool, so it has a recognizable and routine framework, in place for almost 40 years, whenever it arises in a legal case. The framework both draws on the actual language of section 1 and how courts have interpreted that language. At the section 1 stage, the burden of proof is on the state, so it is for the government to convince a court that any limit on a Charter right is reasonable and demonstrably justified. Section 1 itself says that a reasonable limit is prescribed by law. This ensures that any limits on Charter rights are traceable to an actual legal rule. That rule can be found in statute or regulation, or more rarely, at common law. This ensures that limits on Charter rights are consistent with the rule of law, which guarantees that all state power is itself authorized by law. Once you start to drill down into whether a limit on a right is reasonable, there are a number of factors that a state will have to address: that the limit on the right is for a pressing and substantial objective, that the limit is rationally connected to achieving that objective, that the limit minimally impairs the Charter right in question, and that there is overall proportionality between the positive or salutary effects of the limit and the negative or deleterious effects on the individual whose Charter rights have been infringed. While section 1 is a legal tool designed to promote consistency in how the Charter applies, it's important to recognize that Charter rights are implicated in extremely diverse situations of varying complexity. It's also useful to recognize that the -- there is a sometimes delicate relationship between the courts and the state when assessing whether a section 1 justification has been demonstrated. To that end, the courts have repeatedly stated that the analysis of section 1 is contextual. It will look closely at the circumstances. While the state must prove its case under section 1, courts also recognize that it is not always possible to do so to a particular degree of scientific or forensic certainty. This may be because the particular objective really isn't amenable to scientific proof, or because the state is operating in a situation where information is simply not yet available or is uncertain. While purely speculative arguments are likely to fail, the courts do tend to give the state a certain margin in which to establish justification under section 1, again, depending on the context. The final point I would make here is that it's natural to see the state and individual or citizens in an oppositional, even antagonist relationship. This is particularly true for some context like criminal law where you have the immense power of the state being brought to bear against a single individual. But sometimes the state is in a different position. It may be trying to balance competing Charter rights. It may be trying to protect the vulnerable, or it may be trying to safeguard certain things or values that in themselves are essential to a free and democratic society. All of those factors may be important to the ultimate assessment of whether section 1 has been made out.

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Robert Leckey, Prof. (Law – McGill University)

Thank you very much, Professor Mathen. Does another panelist wish to anything at this introductory level or sort of Charter primer, so to speak? Professor Moon?

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Richard Moon, Prof. (Law – University of Windsor)

Well maybe I -- is this one? Yes, it sounds like it’s on. Just that was, you know, a terrific introduction. I’d just add one thing, because I’m struck that often individuals make claims, “I have a right to something” and make claims at large. And I think it’s worth thinking about and noting what’s in the Charter and what’s not in the Charter. And the Charter, in a sense, performs two functions. One is a symbolic function and is meant to list what we understand to be the fundamental rights of members of the political or national community, but it also has a very practical function in the sense that there is an enforcement mechanism. That is to say, if someone feels their Charter right has been breached, they can make a claim for the Courts. And that very much shapes what’s in the Charter and how particular Charter rights are in fact interpreted. The limits of what a Court can do and how a Court can approach or interpret a right. And I just think that’s worth noting, given the general language that often operates about, “I have a right” statements made very much at large.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor Moon. Okay. Commissioner, we’re going to move on. So a few minutes from now, we’re going to drill down more specifically on two of the fundamental freedoms: freedom of peaceful assembly in paragraph 2(c) of the Charter and freedom of expression in paragraph 2(b). Still at a somewhat introductory mode, we’re going to speak a little bit about those rights of democratic participation together, perhaps connecting them to fundamental values of engagement of participatory democracy. And we’re going to continue now with Professor Bird.

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Brian Bird, Prof. (Law – University of British Columbia)

Thank you very much, Dean Leckey. So the topic of democratic participation, how and when individuals who belong to a democratic society contribute to the democratic governance of that society raises several complicated and nuanced considerations. Participation in a democracy can take many forms: voting, running for office, writing to your elected representative, starting or joining a political advocacy group, and so forth. But for today, our focus in on protest as a form of participation in a liberal democracy, the idea of a right to protest in such a society, and when that right can or should be limited. So in these brief remarks, I’ll offer some reflections on the added value of protest in a liberal democracy, leaving the matter of a legally protected right to protest and how that right can be limited, for a later stage of our discussions. So it seems rather uncontroversial to suggest that protest, in the form of rallies, marches, demonstration, sit ins, et cetera, is part and parcel of democratic life. Protest may, at times, test certain commitments that are said to be hallmarks of a liberal democracy, but I think it would be difficult to find widespread support for the notion that peaceful non-violent protest is untethered to democracy or that this activity should be done away with as a form of democratic participation. And in general, I think the occurrence of protest is a marker of a vibrant democracy in which citizens are invested in how they’re being governed and how their society ought to change. Even where protests might be a response to a perceived departure from democracy, these protests are still a form of democratic participation, as they aim to perhaps rescue or preserve democracy and democratic institutions. Citizens coming together to publicly manifest their support for or opposition to this or that cause, issue, law, court decision, or some other current issue of public interest, is a normal feature of democratic life. So much so that it would be perhaps unsettling, from the perspective of a society’s democratic credentials, if protests were to become an endangered species of democratic participation, and even extinct. And that idea invites us to think more about the added value of protest to our society, to democracy. It’s one thing to say that protests are common place and accepted as normal in a democratic society, but how do they enhance the practice or project of democracy? And perhaps history and hindsight might help us here. It wouldn’t take too much time to be able to create a list of protests or activities akin to protest that were either instrumental in effecting transformative change for a society, or significant from the perspective of raising within that society, and perhaps in other societies that take notice, of injustice, inequity, or violations of human dignity. So the civil rights movement in the United States, for example, comes quickly to mind. Now, scientific measurement of the effect of protests like these on the societies in which they occurred, as well as on the other societies that may have taken notice of those protests is difficult to provide, but it seems fair to suggest that these and so many other protests over the course of history have accelerated the pace of change in hearts, minds, and laws alike. So the value of protest in the pursuit of a society that is more just, equitable, and protective of human dignity might be easier to perceive through the rear-view mirror, so to speak, but we can choose to apply these lessons of the past to protests we witness during our lifetime. The protests we ourselves witness could be part of a longer arc of positive change that is not entirely perceptible to us at the time the protest is occurring. They may also turn out not to be part of that kind of change, but our inability to definitively know either way when the protest is underway suggests that we should perhaps err on the side of permitting protest. Still, some of us might say that instead of protesting, we should opt for less disruptive and disconcerting forms of democratic participation: voting in elections, writing to your elected representative, publishing an opinion article in the newspaper, launching media campaigns for a cause, and so on. And one response to this proposal would be that protests, owing precisely to its uniquely disruptive and perhaps disconcerting characteristics, may, in certain cases, be far more effective than other methods of democratic participation. It may even be true that in certain cases, protest is the only method that stands any chance of sparking the change that is desired. It’s hard to imagine, perhaps, the civil rights movement in the United States having succeeded simply through writing letters to Members of Congress. Protest, in other words, might be the only meaningful way for certain voices and the message they carry to be heard by individuals in the halls of power. Without protest, the desired change might take longer to come about in the order of years, decades, or even longer, or the desired change might never come about. Much more could be said about the added value of protest to democracy, not to mention the value of protest to the human condition and spirit, but for the sake of time, I’ll mention only one more now. It could be called the pressure cooker rational, allowing citizens to come together to peacefully express discontent over how their society or other societies are governed allows these citizens, and even those citizens who agree with the protest, but can only watch on television or social media, to let off steam and be heard. Forbidding or unduly expressing this outlet for citizens might, sooner or later, cause the pressure cooker to explode. Just to close, perhaps the greatest obstacle to appreciating the democratic value of protest is our own personal opinions on the aim or cause of a particular protest. When we disagree with the viewpoint animating the protest of the day, our opinion of protest as a form of democratic participation may also diminish. And the reverse also might be true. When we agree with the complaints of the protestors, our affinity for protest itself may increase as well. And this dynamic seems to come to the surface when we opine on how long a given protest should be allowed to last or the degree to which restrictions should be imposed on the time, manner, and place of the protest. I suspect we often afford more or less latitude on these points, depending on how sympathetic we are to the views animating the protest at issue. To close, I would just note that it takes a major dose of even-handedness and tolerance to express support for peaceful protest, even when we vehemently disagree with the reason for this or that protest, or the views that the members of a protest hold. And yet in Canada, this ideal, this even- handedness and tolerance, seems to be our aim in a free and democratic society committed to maintaining a public square that is open to all its citizens and apart from exceptional circumstances, the unhindered expression of their core convictions. So I hope these reflections will aid our conversation today as we explore how protest is and should be protected, as well as limited under Canadian law. Thank you very much.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor Bird. I wondered if any panelist wanted to comment on the particular contributions of any particular protest in recent years — qu’il s’agisse du Printemps Érable ou quelque chose d’autre comme cela – at this stage? Does anyone want to jump in on a particular -- I have another -- after that, we’ll move to the connection, perhaps, between a couple of the democratic rights of participation. Professor Cameron?

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Jamie Cameron, Prof. (Law – York University)

Yes, thank you, Dean Leckey. I would just draw attention to the pedigree and lineage of protest movements in history. So not expressly to answer your question, but just to point out if we’re looking at the United States, for example, we go back to the time before the Civil War and to the whole Abolitionist movement followed by the Women’s movements and then up into the Civil Rights movement, which has been mentioned by Professor Bird, as well as the Vietnam protest and any number of others. In our own country, just in recent years, we have seen Maple Spring, of course; the Occupy movement; Black Lives Matter; Idle No More; Pride movements, and all the Indigenous movements which are too numerous to mention, but just to say that we have a very strong pedigree of protest movements in North America and including in Canada. And they’re an important aspect, I agree with Professor Bird, very important aspect of participatory democracy.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor Cameron. That makes it a little more concrete, Professor Bird’s reminder that protests may not be simply something to be tolerated, but that they bring a distinctive value. Professor MacDonnell?

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I was just going to add that I think that you’ve both captured very well the sort of value of protest in a democratic society and the importance of nurturing it. You know, my sense is that where the challenge lies is in, you know, first defining the contours of a right to peaceful assembly, but then also sorting out how the state should respond when a protest implicates the rights of others. And so I think there is a wide degree of consensus on the value of protest in a democratic society. What becomes genuinely challenging is how the state responds in circumstances where parts or all of a protest become violent; where a protest interferes, to some degree, or to a substantial degree, with the security and safety of others. And so I think the real challenge for decision-makers, whether that’s the state in the first instance, or a court on judicial review, or an inquiry reviewing these matters, is, you know, how do we do what Professor Mathen alluded to in her discussion of section 1, which is; how do we balance the competing rights and interests that are at stake in the context of a public protest? And, you know, to me that’s where the difficult work is.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor MacDonnell. Professor Moon?

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Richard Moon, Prof. (Law – University of Windsor)

Yeah. I mean I think, and I know this comes up in the various presentations. we have to recognize that any kind of protest is invariably disruptive. It will, to some extent, interfere with the ordinary use of spaces, people’s ordinary lives. And so, again, I agree the challenge is to determine when, what is the outer limit of that? When does it become too disruptive, either as a matter of how much space is taken up, or how long it’s going on, or how confrontational it is? And there is no simple answer to that. I mean, I think that’s the real problem. One can think of the Occupy movement, for example, which involved the establishment of encampments that were there for an indefinite period of time, at least that seemed to be the plan. Everybody accepted that it was an important protest and that there was a right to be located there for a period of time. But then the question became, well, how long is too long? And again, there’s no simple answer to that question.

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Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor Moon. Part of the challenge of construing a Bill of Rights, such as the Canadian Charter, is seeking to identify the relationship between the different guarantees, and at times we see from, you know, the claims brought in court, that there is a perception that multiple guarantees may be engaged by a similar set of facts. But nonetheless conceptually it can be helpful to try to distinguish the different guarantees. And in the discussion so far we’ve been touching, I think, on peaceful assembly and perhaps freedom of expression. Does any panellist want to prepare us for the challenge of articulating or separating those two, before we go into them one by one? Professor Cameron?

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Jamie Cameron, Prof. (Law – York University)

Well, I think as part of what I had been planning to say, I can do it upfront, if that’s preferable? So I guess I would say that the fundamental freedoms overlap and complement each other, and that you couldn’t have a viable freedom of peaceful assembly without also respecting protections for freedom of expression, and I guess incidentally, freedom of association. So they work together, and they have to all be protected. But I would also say that freedom of peaceful assembly is a distinct and independent guarantee that is not the same as freedom of expression. And so I can go into that in a tiny bit more detail. So freedom of peaceful assembly is a collective entitlement; it’s an exercise of solidarity by a group of two or more individuals. The Supreme Court of Canada has acknowledged as much; it hasn’t discussed section 2(c) very much, but it has acknowledged it that it is a group activity that is incapable of individual performance. So we tend to think of section 2(b), freedom of expression, as being an individual entitlement. And perhaps section 2(c) is as well, but it’s one that is exercised in collective -- in a collective way as an embodiment. I think that also it’s important to note about freedom of peaceful assembly that it has an embodiment and a presence that is usually spatial in nature. Usually spatial in nature, not necessarily the case with freedom of expression. And an assembly is also -- I’ll use this word, it’s performative in nature, in the sense that, what you have with an assembly is more than verbal expression. And whether the assembly is passive, like forms of assembly can be completely passive, that can be the message; an assembly can also be active and, indeed, very active. But what this tells us is the -- that is that the act of assembling itself has a performative nature and a meaning that is not captured by section 2(b)’s freedom of expression, and therefore, it would be a mistake to collapse section 2(c) and the right of peaceful assembly into section 2(b)and only -- and treat assembly events as belonging under section 2(b), rather than having their own independent entitlement. And so from my point of view, anyway, it’s very important to separate section 2(c) from section 2(b) and begin the task of giving it definition and interpretation. So I don’t know if others have comments on that.

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Robert Leckey, Prof. (Law – McGill University)

Thank you. So you’re -- Professor Cameron, you’re laying the groundwork for us to move in a moment to go a little deeper into looking at freedom of peaceful assembly, which as you note has been construed less by our courts than have others; freedom of religion; freedom of expression. At the level of the rights of democratic participation together, is there a final thought from anyone? Okay. So we’re going to go back to Professor Cameron, to pursue our reflections on freedom of peaceful assembly.

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Jamie Cameron, Prof. (Law – York University)

Don’t worry, Dean Leckey, this is where it gets lively. Okay. So the Charter’s guarantee of peaceful assembly has been mostly inert for the first 40 years of the Charter’s interpretation. There’s been very little in the jurisprudence, and apart from a mention by the Supreme Court that I noted a moment ago, has had very little interpretation or discussion at the Supreme Court level. And this might seem surprising, given what we’ve just heard from Professor Bird and others about the importance of public protests and public gatherings. As -- and their value as a form of participatory democracy. And I think it’s clear that the Charter’s fundamental freedoms and peaceful assembly do form a vital background to the Commission’s work. So some may know that I did write a Commission paper for the Commission on peaceful assembly; it’s on the website. And the purpose of that paper, at least from my point of view, was to bring peaceful assembly into the conversation. And the paper, therefore, does not discuss the convoy, or make any assessment of convoy activities, but its objective instead was to propose an approach to section 2(c). So here I think I’ll quickly just make two or three points, and then move the discussion back to colleagues, who I know would like to weigh in on how we look at peaceful assembly. So I’ve already spoken about peaceful assembly as an independent guarantee of the Charter. And I’ve spoken about the importance of recognizing that entitlement and giving it its own place in the Charter. That was point number one in my presentation. So I’ll move to the second point. And it -- we heard about the structure of the Charter from Professors MacDonnell and Mathen. And I think I’m going to start there because it’s very important when we start to take a look at section 2(c), very important to have that structural framework in mind. And as Professor MacDonnell told us, there are two steps in any Charter analysis. The first step is to look at the nature of the entitlement and to give that entitlement a definition or interpretation, and then the second task is under section 1, is to determine what limits are reasonable, what limits on that Charter entitlement are reasonable.

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Robert Leckey, Prof. (Law – McGill University)

Professor Cameron, this is super valuable stuff. If you could slow down just a little bit, ---

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Jamie Cameron, Prof. (Law – York University)

Oh.

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Robert Leckey, Prof. (Law – McGill University)

--- it would help the interpreters and the broadest audience you deserve for this.

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Jamie Cameron, Prof. (Law – York University)

My apologies. Should I go back over any of that?

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Robert Leckey, Prof. (Law – McGill University)

No, no. Just ---

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Jamie Cameron, Prof. (Law – York University)

Okay.

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Robert Leckey, Prof. (Law – McGill University)

--- a tiny bit slower.

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Jamie Cameron, Prof. (Law – York University)

All right. So then looking at that structure reinforces the view that peaceful assembly, like the other fundamental freedoms under section 2 of the Charter, should receive a generous interpretation. And so that means that questions about limits on peaceful assembly, for the most part, should be found and imposed under section 1, rather than introduced into the preliminary definition of the entitlement. And in other words, peaceful assembly should be given broad coverage and limits to deal with disruption, disturbance. Those kinds of issues should, for the most part, be reserved for section 1. That’s the set up, and the nature, and the concept of the Charter. So moving to section 2(c) specifically, the central question under section 2(c), I think it’s fair to say, is what is the meaning of peaceful assembly? What does it mean to say that an assembly is peaceful in nature? So what is peaceful under section 2(c) and what is not? And I think there are going to be different views on this. And I’ll just tell you a couple that I encountered in preparing the paper. And I’ll say first that how you answer that question, how you decide what peaceful means for purposes of section 2(c) will have dramatic consequences for the scope of the entitlement. So it’s the critical issue under section 2(c). It’s the critical issue for peaceful assembly, for that entitlement. So one approach to the question of what is peaceful equates peaceful assembly with non-violent assembly. And under this view, assemblies are considered peaceful, unless they engage in acts or threats of violence. It doesn’t mean that limits can’t be imposed under section 1, but it means that an assembly has prima facie or preliminary status under the Charter, as long as it does not engage in any violent activities. That’s one view. It’s not the only view. There’s a different approach, sees it a different way, and would interpret the meaning of peaceful assembly quite differently. So under that view, a peaceful -- sorry an assembly is not peaceful or non-peaceful when it does any of the following, like cause a disturbance, engage in disruptive activity, engage in objectional conduct, and even violate bylaws. Bylaws and other kinds of legal regulations. So on that view, an assembly would become non- peaceful when it reaches a sufficient threshold on any of these criteria. And under that view, it would mean that the assembly does not have any protection under the Charter. The difficulty with that view, in my opinion, is that it creates a risk of prematurely or pre-emptively shutting down public gatherings or demonstrations because they are considered or experienced as being objectionable in nature. And the risk is that the messages of the dissidents and vulnerable will be too quickly cut off. Now, we don’t have a lot to go on in Canada. We do not have any section 2(b) jurisprudence to speak of, much less a robust jurisprudence. But the international jurisprudence on these issues is quite striking because under the international guarantees, peaceful assembly is protected, up to the point of violence. And the issues about disturbance, disruption, commission of unlawful conduct, et cetera, are matters of limits under their version of section 1, or proportionality, but not of initial entitlement. I’m going to mention a third approach, and I’m going to give a bit of a shout out to the City of Ottawa, who provided -- the City of Ottawa presented a brief in response to my paper. And it’s a thoughtful response. The City of Ottawa, as I understand their response, proposed a harm test for section 2(c). So the idea was that violence is at one end of the spectrum, disruption considered still a form of peaceful assembly is the other, and the City placed harm as a test sort of between the two. And the idea of it is that once a certain threshold of harm is reached in the activities of an assembly, that will forfeit the protection under section 2(c). So that was proposed as an alternative to these other two understandings of peaceful assembly. I guess I would say that it’s difficult for me to agree with the City of Ottawa, although I think the proposal is certainly worth discussing. It’s difficult for me to agree with that because harm is a very subjective and evidence-based concept, and it’s better suited to the kind of analysis that is typically done in section 2 cases under section 1. So I would see a harm analysis under section 2 as being out of keeping with the way section 2 analysis is done generally in section 2 cases. And again, a malleable concept of harm runs the risk of pre-empting assemblies that are engaged in participatory democracy. I’m coming to pretty much my last point about section 2(c), because I know we want to open the discussion up. And this is also a really important point, I think. We need to think about the relationship between the assembly per se and the individuals who are participating in the assembly. So I’ve mentioned that the assembly is conceptualized as a collective entity, but the collective entity, you know, incorporates various numbers of individuals. The constituent participants in an assembly remain responsible for their actions. So for instance, if members of a public demonstration or protest engage in unlawful conduct and even violate the Criminal Code, they are responsible in their individual right for their actions. They’re responsible for any unlawful conduct they may commit. But generally speaking -- and it’s subject to evidence, of course; generally speaking the acts of individuals do not taint or compromise an assembly, unless those acts become so pronounced or so pervasive that they come to define or characterize the assembly. At that point, they become the assembly and that may change the status of the assembly under section 2(c). I’m just going to -- I think I’ve given us some things to think about. I’m going to make one final comment, and it is a little bit about this particular demonstration, but just to illustrate. I guess it would be my view that the assembly in this instance began at the point when the convoy set out from British Columbia at the start of the convoy. Trucks were, at that point, integral to the assembly, and it was a moving -- for many days, it was a moving assembly. It was an assembly that moved across the highways in Canada before arriving in Ottawa. When it arrived in Ottawa, it became static and embedded. The trucks may still have been part of the assembly, but maybe their role changed, and maybe their presence in Ottawa changed and even escalated the nature and scale of the assembly. I think it would be fair to say, and I hope I’m not overreaching, Mr. Commissioner, I think it would be fair to say that the trucks compounded and intensified the disruption. But what I would say is that on a principled approach to the structure of the Charter, those issues inform the analysis under section 1 rather than the scope of entitlement under section 2(c). And I have things to say about reasonable limits, but I think I’ve spoken enough, and would love to hear from my colleagues.

Volume 32 (November 28, 2022), page 30 32-030-25

Robert Leckey, Prof. (Law – McGill University)

Thank you very much, Professor Cameron. So just to situate your very helpful comments for the audience here; you were really focusing at defining peaceful assembly at the paragraph 2(c) level; basically, bracketing for other discussion the question of reasonable limits on peaceful assembly under section 1. And you are, very helpfully, I think, focusing on the qualifying adjective, “Peaceful” and its -- 2(c) is distinctive in that the other fundamental freedoms don’t have a qualifying adjective. So we have the right to freedom of religion with no adjective, freedom of expression, freedom of association without a qualifying adjective. So it’s a real limitation to understand what that “Peaceful” is doing there. And you’ve invited us to think about the three approaches there. I remember from our preliminary discussion with several panellists that there are also questions about even what an assembly is, and to what extent an assembly is focused on natural persons and, you know, appendages immediately within their control versus larger dimensions. But let’s open things up. I think Professor Mathen, you had some thoughts to share on this one, too.

Volume 32 (November 28, 2022), page 35 32-035-19

Carissima Mathen, Prof. (Law – University of Ottawa)

I do, thank you. And I really enjoyed the policy paper prepared by Professor Cameron, and I just do have a few observations that build on the paper. So the first point is I entirely agree that we do need to recognize assembly as an important fundamental freedom in its own right, and particularly in the relationship with expression, while they overlap, they do reflect different components of a free and democratic society. To that end, though, when we think about assembly, as Dean Leckey has just noted, it does have this, what we call an internal limit, an internal qualifier, which is the word, “Peaceful,” which is not -- we do not see that with the other fundamental freedoms, and so our analysis needs to take some account of that. In terms of looking at the right itself, while it often is associated with meaningful activity, I think we might want to be careful that we don’t only see assembly as oriented towards conveying meaning. Because it is a physical activity, it can be addressed toward some other goal that is not closely related to conveying meaning. For example, an assembly could be oriented towards protection of an individual or a place that is really its own goal, separate from any conveyance of meaning to other people. In terms of the word, “Peaceful,” I think here as well it is important to recognize something that distinguishes assembly from the other fundamental freedoms, which is that it is commonly manifested in a physical way. So it is the coming together of people, and it is that physicality that historically, of course, has been seen as very important. But that also makes assembly different from the other fundamental freedoms, and so when we think of the limits on peaceful, I think that the borrowing from expression of the freedom of expression of the notion of violence as being an important qualifier is absolutely appropriate. The Supreme Court of Canada has recognized that threats of violence are not protected under freedom of expression. I would certainly, you know, suggest we could think about whether that’s appropriate for freedom of expression, for freedom of assembly. But, in addition, how we assess what the threat is, I think, may require a slightly different vantage point which is that I think it is useful to consider using an objective analysis of the threat posed by a particular assembly that may take it out of the protected sphere of being peaceful. So this is not dependent on proving the violent intentions of any one of a number of the members of the protest, which I think, first of all, can be extremely difficult to do, but also does not sufficiently engage with the nature of the protest as a whole. So this is not a numbers game; this is a very fact- and context-sensitive assessment of what the assembly is or is becoming. It might also be interesting to consider just as there is a right against forced expression, is there a right against forced assembly? And, again, because of the physical manifestation of assembly, are there circumstances in which people might be involuntarily brought into the context of the assembly? And this might particularly be the case where the nature of the assembly is such that it actually affects the person in their primary residence, so that in order to escape the effects of the assembly, they must leave their residence. Is there a question about whether you are, in that context, perhaps dealing with involuntary or forced assembly. Dean Leckey noted the very interesting question of what the actual fundamental freedom includes, in terms of whether it is just human bodies or other things, and that, I think, was very much brought out in the current situation that we’re considering. And the one point I would make there is that -- and this is not, I would think, as to whether the assembly is peaceful, but whether it is actually a protected exercise of assembly. We just want to be careful that we don’t overread the right of assembly so that it privileges those that have more resources to effect an assembly that becomes more difficult to control. So I would just perhaps suggest that might be something to think about. And then, finally, when we get to the justification section under section 1, certainly the state should be cautious about simply dispersing an assembly. I believe in international law that is seen as a last resort. But in some context, dealing with the assembly more rapidly may actually create the space for maximum enjoyment of the right of assembly going forward, as opposed to because of this very, I think, appropriate reluctance to interfere with the assembly, what you wind up producing is a situation of an entrenched assembly that then has to be dealt with in a much more intrusive way. So I would stop -- I’ll stop there.

Volume 32 (November 28, 2022), page 36 32-036-12

Robert Leckey, Prof. (Law – McGill University)

Comments from other panellists at this point? Professor Moon and then Professor Bird. Professor Moon.

Volume 32 (November 28, 2022), page 39 32-039-15

Richard Moon, Prof. (Law – University of Windsor)

Okay, thanks. Just a brief comment. Professor Cameron’s paper is a terrific paper and really outlines a very strong argument. I want to take just -- well, not exactly issue with it and some of what Professor Mathen has said -- Mathen has said, sorry. Almost got that wrong. And I want to kind of reassert that what I think is a significant overlap between the different rights. It’s really important to remember when talking about freedom of religion, for example, it has a collective dimension. It protects religious rituals, manifestations of religious practice, often which occur in collective form. And so it does have a physical dimension to it in that sense. And the same could be said about freedom of expression. Expression occurs in a variety of ways. I’ll say more about that in a minute. But it’s always physical, even in the most minimal sense of using one’s vocal cord, but more often involves much more than that. So I want to re-emphasize that all of these rights have a physical dimension to them. All of them have a collective dimension to them as well.

Volume 32 (November 28, 2022), page 39 32-039-19

Robert Leckey, Prof. (Law – McGill University)

Thank you, Professor Moon. Professor Bird?

Volume 32 (November 28, 2022), page 40 32-040-11

Brian Bird, Prof. (Law – University of British Columbia)

Just a couple of quick comments. Thank you, Professor Mathen, Professor Cameron for all the comments so far. And in listening to more recent remarks, it does seem to me that this addition of this adjective of peaceful, so far I’m drawn to this notion that perhaps the drafters are trying to point us to, in a way, what it doesn’t protect. And in that, just thinking of the kind of natural antonym of peaceful being violent, or violence, so it doesn’t protect violent assembly. But I need to think more about this, and the comments are making me think more about that. One thing I would also note, that this approach has been suggested by the City of Ottawa, perhaps using harm as a way to assess whether the assembly is protected or not. It does seem to me that, at least just from a purely -- from an application perspective, that determining what’s violent, as opposed to non-violent, seems to be a bit more manageable, or easier to identify, perhaps, than harm versus -- harmful versus not harmful. So even from a kind of just a linguistic text, to maybe pulling us to what -- pointing us to what the protection does not cover, I’m also drawn to the notion that harm is just, indeed, seems to be a very difficult or can be a challenging concept to apply, whereas violent versus non-violent seems to be a bit of a brighter line. I just wanted to mention on the section 1 standpoint, this idea of limiting peaceful assembly, just given what has been said so far about the value of assembly and protest to democratic participation, one of the lesser kind of interpreted phrases in section 1 is this idea of a free and democratic society, this notion that all rights and freedoms in the Charter can be limited when those limits are prescribed law, when they’re reasonable limits, and then finally when they’re demonstratively justified in a free and democratic society. Perhaps this discussion also invites us to think more about what that phrase, free and democratic society, especially the democratic part, means in terms of does that somehow animate the threshold or the bar which a statement needs to reach? And even the word “free”, as well, given that that word points to, has a particular resonance with freedom in a fundamental freedom. So just maybe thinking a bit down the road of our discussion of section 1, that that phrase of free and democratic society seems to potentially have a lot of -- may have much to say or a lot to say in this context. I’ll just pause there.

Volume 32 (November 28, 2022), page 40 32-040-13

Robert Leckey, Prof. (Law – McGill University)

Professor MacDonnell is next, and then we’ll go to Professor Cameron. Professor MacDonnell?

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Just a short point on this question of reasonable limits on freedom of peaceful assembly. I think in thinking about reasonable limits, it will be helpful for us to try to move beyond what I think is a very common binary in our thinking about protests, which is you either allow the protest to continue, or you shut the protest down. And one of the important components of the section 1 analysis is to examine whether a limit on rights is minimally impairing. Whether it impairs no more than is required to meet its objective. And it seems to me that there are, you know, points on the spectrum that our discussion often fails to capture. And so you do see, if you look at the very little bit of case law that there is on freedom of peaceful assembly in Canada that, you know, one option is to allow an assembly to continue to during specified hours or in -- under different conditions than the assembly -- than the conditions that originally surrounded the assembly. And so to me, this sort of moves our discussion away from either full protection of this right, or sort of full violation of this right to a space where we can consider is there a way to still give meaningful affect to freedom of assembly, while also recognizing that, you know, as Professor Moon said, as time goes on, if there are elements that are, you know, potentially violent or, you know, highly disruptive to the safety and security of others, are there options there that still allow for substantial preservation of the right?

Volume 32 (November 28, 2022), page 42 32-042-08

Robert Leckey, Prof. (Law – McGill University)

That’s very interest, Professor MacDonnell, given Professor Cameron’s point that dispersal is the absolute last resort, ---

Volume 32 (November 28, 2022), page 43 32-043-10

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Right.

Volume 32 (November 28, 2022), page 43 32-043-13

Robert Leckey, Prof. (Law – McGill University)

--- but it’s not the first mode of intervention. Professor Cameron?

Volume 32 (November 28, 2022), page 43 32-043-14

Jamie Cameron, Prof. (Law – York University)

Yes, just -- thank you, Dean Leckey. Just a couple of follow up points. On the issue of acts or threats of violence, I think that it’s helpful to think about the nature and the level of the threats, to ask where they’re coming from, who is making those threats, if any, and how pervasive they are, because the threats will typically be made by individuals, rather than the assembly. The entitlement belongs to the assembly. So we just have to be careful not to treat levels of disruption as threats in and of themselves, because to do so risks excluding certain assemblies and gatherings from section 2(c) and not granting them any Charter protection at all. So I would always argue that those kinds of limits can be imposed under section 1. So it’s evidence based, whether there are threats, whether they’re sufficient to compromise assembly. A second point has to do with Dean Leckey’s observation, and I guess a discussion we had at dinner last night, which is what exactly is the assembly and what kinds of props that may be used or by an assembly are included in the entitlement. And so we specifically had a question about trucks last night and whether they are part of the assembly. But there are other kinds of examples, of course. So that assemblies choose the way and means that their message can be effective, so they will typically, or they may use different kinds of props. And they can be quite innocuous in nature, the props that are used by assemblies, but they can go all the way down to the use of weapons and so forth. So the question there is to what extent does this -- the right of peaceful assembly include the choice of means and the choice of props instructors, including not just camps and entitlement -- tents and camps and so on, but things like trucks. And a final point just has to do with the relationship between section 2(c) and section 1. I think, you know, we may have reasonable disagreements about whether the work can be done under section 2(c), or whether it should be reserved to section 1. One of the reasons I support the section 1 approach is that for the reasons that were just mentioned, that it’s not an all or nothing kind of a calculation. There may be ways for an assembly to continue in a proportional way with the imposition of limits that carefully balance the rights of the community. I think I’ll stop there. Thank you.

Volume 32 (November 28, 2022), page 43 32-043-17

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor Mathen?

Volume 32 (November 28, 2022), page 45 32-045-06

Carissima Mathen, Prof. (Law – University of Ottawa)

Thank you very much. Just a brief point to -- just to clarify, perhaps, the issue around threats of violence. And I just want to be clear that I am here talking about violence against the person. So the criminal -- the classic criminal understanding of violence against the person. So that is interference with people. Those are the kinds of threats I was talking about, not other forms of disruption. But there can be, on an objective basis, an assessment that the nature of an assembly creates a reasonable generalized threat to people who are within the immediate vicinity of that assembly. It will be very much fact specific.

Volume 32 (November 28, 2022), page 45 32-045-08

Robert Leckey, Prof. (Law – McGill University)

Thank you. It’s also interesting to grapple with the question at what point do individual members of the assembly start to characterize the thing as a whole, such that we feel the assembly itself is involved in conduct of that nature. One of the questions submitted in advance to us concerns specifically Canada’s Indigenous peoples. And so I wondered if panelists had thoughts on whether the fundamental freedoms of Indigenous peoples differ from those of others? Particularly when they involve social movements seeking to promote recognition and respect for traditional territories, lands, and resources? And a more specific form of that question, should the Charter protections for assembly and protest interpreted consistent with the rights of Indigenous peoples and is section 25 of the Charter any help in this regard so that limits imposed on those fundamental freedoms do not restrict Indigenous peoples from obtaining redress for historic and ongoing violations and denial of their rights? Anyone wanting to take that one on?

Volume 32 (November 28, 2022), page 45 32-045-20

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Well I can just say ---

Volume 32 (November 28, 2022), page 46 32-046-11

Robert Leckey, Prof. (Law – McGill University)

Dr. Jean-Francois Gaudreault-Desbiens?

Volume 32 (November 28, 2022), page 46 32-046-13

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

--- if we look at the case law of the Supreme Court, for example, on freedom of expression, we realize that when the Court looks at section 1 and at the justifications that are evoked to defend some measures, potentially restricting freedom of expression. It's a context-based analysis, which takes into consideration particular situation. Example, the cases involving the Charter of French language in Quebec. The analysis that was made by the Supreme Court was responsive to the particular context of the French language in the Province of Quebec. So under section 1, I don’t see why cases involving the fundamental freedoms of Aboriginal people should not be treated in the same sensitive way. Canada is a very diverse country, and in many cases, the Supreme Court has clearly taken into consideration differences. Another case involving Quebec, where the particular regime of -- in history, of labour relations in the province was taken into consideration. Would -- or absent this consideration of the particular context of the province, would the decision have been the same? I don’t know. But being context sensitive, as the Court has been in its application, it’s interpretation of fundamental freedoms and the evaluation of their reasonable limitation is part and parcel of our case law and of our constitutional law. So I don’t see any fundamental problem in being context sensitive to the claims of Aboriginal people and their rights.

Volume 32 (November 28, 2022), page 46 32-046-15

Robert Leckey, Prof. (Law – McGill University)

Thank you. Commissioner?

Volume 32 (November 28, 2022), page 47 32-047-14

Robert Leckey, Prof. (Law – McGill University)

Thank you, Commissioner. And just before we go back to the panelists, I would just add to that, if I might. I’m wondering if anyone else wishes to take up Professor Mathen’s suggestion that at a certain moment, an assembly is actually conscripting other people into participating in it by being, you know, in their neighbourhood all the time or something like that? And so we know in other contexts that one is not allowed to impose one’s religion on others, that one has a certain right not to be in an association, and so I’m wondering if anyone else finds it helpful as a distinct question from whether violence has occurred, to say at a certain point, “I have no choice but to be part of this assembly,” and is that -- does that help us see a limit on the right to peaceful assembly? Now, Professional MacDonnell was already on my list, and I see Professor Cameron will follow her.

Volume 32 (November 28, 2022), page 48 32-048-11

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I was on the list for a slightly different point, so perhaps I’ll just cede my time to Professor Cameron.

Volume 32 (November 28, 2022), page 48 32-048-28

Robert Leckey, Prof. (Law – McGill University)

Sure. Professor Cameron?

Volume 32 (November 28, 2022), page 49 32-049-03

Jamie Cameron, Prof. (Law – York University)

Okay. So just a couple of points, if I can read my writing. Thank you, Mr. Moderator. So I think there’s a difference between threats of violence being made and the community’s experience of feeling threatened by the presence of a gathering or a demonstration. And so, again, in the spirit of not pre-empting a fundamental Charter entitlement, I would say that that experience of feeling threatened can definitely be addressed, and there’s nothing to say that it doesn’t allow limits. But my view would be that that belongs under section 1, rather than section 2. I think also again, with the second point, I’m not sure if this is responsive or not, but it’s a messy situation; isn’t it? Because you have an assembly that can be sort of inchoate and you don’t really know what is the -- who is the assembly? What is the assembly proper and who are the intervenors? And to what extent is the burden on the state and authorities to separate out those who have gone rogue or engaged in their own activities of unlawful conduct? I think that’s a difficult question. Again, the concern would be not to pre-empt the entitlement needlessly, unless the evidence permits a conclusion that the assembly has, itself, attained violent dimensions. And then a third point was about being conscripted, but I’m going to pass so that others can speak.

Volume 32 (November 28, 2022), page 49 32-049-04

Robert Leckey, Prof. (Law – McGill University)

Professor Bird, then Professor Mathen.

Volume 32 (November 28, 2022), page 50 32-050-02

Brian Bird, Prof. (Law – University of British Columbia)

On the conscription point, or imposing one’s assembly on another, it does seem to me that built into the protection of the guarantee is this notion of voluntary assembly, of you wanting to be your own free will and not under duress, or not coerced or conscripted, being a member of that. So I think the notion of not imposing one’s religion on another in terms of the freedom of religion context, does seem to have a lot of purchase here as well. On the question of threats of violence, strikes me that, you know, if an assembly is occurring and it’s public and the authorities are aware, of course can monitor for prospects of violence. Is there a point at which the threats of violence have transformed into where the violence is inevitable, the authorities know that it’s going to occur, maybe they have intelligence that they know that it’s going to occur on a certain -- start at a certain date and time, or they have very strong evidence or objective grounds for that. You could arguably say at that point that maybe it’s now no longer peaceful, such that it’s no longer captured by the guarantee. Alternatively, it could be seen as still being peaceful, because the violence hasn’t yet started, and any kind of intervention, which might well be justifiable to avoid what is violence that is forecasted to start, would indeed be a limit on a peaceful, still peaceful assembly, but one that would be considered under section 1. So I’ll just pause there.

Volume 32 (November 28, 2022), page 50 32-050-04

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor Mathen?

Volume 32 (November 28, 2022), page 51 32-051-02

Carissima Mathen, Prof. (Law – University of Ottawa)

Thank you. I think a really important point about freedom of peaceful assembly is that -- and I take Professor Moon’s point that there are aspects that are common to all the fundamental freedoms, but linked to Professor Bird’s discussion of democratic participation is a very important component of mutuality among citizens when they are confronting the kinds of issues that arise that would be the subject of some exercises of peaceful assembly. And so it’s -- that mutuality I think is very important. And it’s in that context as well that it becomes important to assess the overall nature of the assembly, which may be very messy, which may have inchoate or unknown leadership, which may have multiple assemblies, but from the objective point of view that doesn't make it impossible or indeed remove the need to arrive at an assessment of what the assembly is and the potential risk of interference or level of interference with other citizens that again takes it out of that umbrella of being a peaceful assembly, protected by the Charter, consistent with the underlying norms and purposes of the Charter that warrant this constitutional protection.

Volume 32 (November 28, 2022), page 51 32-051-04

Robert Leckey, Prof. (Law – McGill University)

Thank you. Other thoughts from the panelists?

Volume 32 (November 28, 2022), page 51 32-051-24

Jamie Cameron, Prof. (Law – York University)

Just one ---

Volume 32 (November 28, 2022), page 51 32-051-26

Robert Leckey, Prof. (Law – McGill University)

Yes, Professor Cameron.

Volume 32 (November 28, 2022), page 51 32-051-27

Jamie Cameron, Prof. (Law – York University)

Just one tiny point, which is what Professor Mathen is speaking to I think is the coercive properties of demonstration in certain circumstances. And I guess I'm just thinking through, and I don't have any further to say at the moment, but there may be a difference between something that is sort of a coercive presence versus a threatening presence, and you know, it's a point to sort out.

Volume 32 (November 28, 2022), page 51 32-051-28

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor MacDonnell?

Volume 32 (November 28, 2022), page 52 32-052-07

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

One small point, just in making this, you know, sort of factual assessment of the nature of an assembly. I think that social media makes this more difficult in some ways because Professor Bird talked about, you know, what police intelligence might be available, is there national security intelligence that's available. You know, I think there's also this question of how the protest is understood in the public, in the media. And on social media, there is the potential for a small number of leaders to really - - to be the face of a protest. And so I think one of the challenges in trying to make this objective determination is, you know, what matters? Is it what's happening on the ground, is it what the, you know, the police information tells us, is it what seems apparent on social? And, you know, in many ways the democratisation of social media has been very positive. I think it can also, though, perhaps, like, skew our assessment one way or the other, frankly, in terms of trying to characterise the assembly as a whole. And given that this plays an important role in determining the scope of constitutional protection, I think that that is something worth reflecting on.

Volume 32 (November 28, 2022), page 52 32-052-09

Robert Leckey, Prof. (Law – McGill University)

Professor Bird.

Volume 32 (November 28, 2022), page 53 32-053-03

Brian Bird, Prof. (Law – University of British Columbia)

Just building on Professor MacDonnell's point, I think that's very important to the kind of social media face on the media face of a assembly versus the -- through the potentially different institutions on the ground or perhaps the skewing effect that you talked about, it seems a very important factor. And I just wanted just to qualify my remarks a little bit before, when I said if there -- threats of violence are -- have risen to the level that now they're going to be inevitable, the violence is going to occur or is expected to occur, it may not be that it animates the entire assembly, it may be that, you know, out of an assembly of a thousand people there is evidence that five people, whatever the number might be, a very small percentage themselves are going to kind of go low, sort of speak, and enter into violence, while the rest of the assembly has no interest in that whatsoever. So that's another part of the conclusion as well, is you then have a more individual focus in holding those individuals accountable and saying that the assembly still, by definition is still peaceful, or do you say that it's now become, given the grand scheme of things, unpeaceful or non-peaceful assembly across the boards? So that's another consideration to bear in mind.

Volume 32 (November 28, 2022), page 53 32-053-04

Robert Leckey, Prof. (Law – McGill University)

Commissioner, have we provided some help on the question you asked?

Volume 32 (November 28, 2022), page 53 32-053-26

Robert Leckey, Prof. (Law – McGill University)

Thank you. The -- and the occupation question is one challenging thing. Last night, in the discussion some of us had, there was also disagreements, indeed, over whether honking at a certain point becomes an assault. And is it -- I mean, it's -- there is a physical dimension, your body can experience noise if it's loud enough and sustained enough, and there are all kinds of norms around construction work, and so on, that recognises the impact on the person. Does that itself become unpeaceful at a certain moment? And it's -- I don't think of it as a political ideology, but whether you were in Ottawa last winter seems to effect a little bit abut how you approach some of these issues where conceptualising and facts meet up. Professor MacDonnell?

Volume 32 (November 28, 2022), page 55 32-055-02

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I was just going to add that one of the things that we have been discussing and will continue discussing in this conversation is the extent to which, you know, because, as Professor Cameron points out, there is so little case law on freedom of peaceful assembly, when we're looking elsewhere for guidance, one of the places we tend to look is at the way that the court has addressed other fundamental freedoms. And here, on this question of violence or threats of violence, the freedom of expression jurisprudence has moved from saying that, you know, it's only physical violence that is sort of excluded from freedom of expression where there is communicative content, to including threats of violence. And so in terms of thinking about what the scope of peaceful assembly would be, you know, my sense is that's a fairly strong authority for treating both threats of violence and actual violence as being not peaceful for the purpose of 2(c). My sense is the question that comes out of some of the submissions of the parties and from some of the material that Professor Cameron canvasses in her paper is, is there something more than that beyond threats of violence? Is there something about disruption, inconvenience that also would take a protest outside of the scope of being peaceful? My impression, though, and you know, perhaps this isn't shared by the panel, is that it would be, you know, surprising if a right to peaceful assembly did not take account of threats of violence, and that the standard for rendering a protest not peaceful is actual physical violence. I think that would be out of keeping with the kind of -- the freedom of expression jurisprudence and the direction it's taken for much the same reason, for -- or which, I guess, informed by much the same rationale as one would see in the context of peaceful assembly.

Volume 32 (November 28, 2022), page 55 32-055-16

Robert Leckey, Prof. (Law – McGill University)

Colleagues, we're doing this collectively. We've spent longer on this issue than we expected, but I think it's valuable. So Professor Moon, I'm happy to go to you next. We're all cognisant that this is shrinking a little bit freedom of expression, but think this has been very helpful so far. Please ---

Volume 32 (November 28, 2022), page 56 32-056-20

Richard Moon, Prof. (Law – University of Windsor)

So I'll say very little.

Volume 32 (November 28, 2022), page 56 32-056-27

Robert Leckey, Prof. (Law – McGill University)

Please continue.

Volume 32 (November 28, 2022), page 56 32-056-28

Richard Moon, Prof. (Law – University of Windsor)

Yeah, I wanted to kind of work through the notion of occupying a neighbourhood a little more closely because if what we're talking about are public spaces, public properties, the streets, for example, as opposed to private properties, then it strikes me that there is at least initially a right to protest in those spaces. Obviously, the residential character of a particular neighbourhood can certainly and should play a role in determining what's a, you know what’s a -- you know, what’s a reasonable limit on that? It’s one thing to parade down a street in a residential neighbourhood demonstrating, it’s another to remain there for an extended period of time, to honk horns and whatever. And it strikes me that that’s very much a question of what are the reasonable limits, as opposed to something more basic.

Volume 32 (November 28, 2022), page 57 32-057-01

Robert Leckey, Prof. (Law – McGill University)

Okay. So thank you very much for the exploration of freedom of peaceful assembly. We’re going to turn now to freedom of expression, paragraph 2(b) of the Charter. We’ve already had the suggestion that there’s continuity in the sense of, potentially, a collective and a physical dimension to this guarantee as well. But we’re going to continue with Professor Moon.

Volume 32 (November 28, 2022), page 57 32-057-15

Richard Moon, Prof. (Law – University of Windsor)

All right. So I now have two minutes, is what you’re telling me?

Volume 32 (November 28, 2022), page 57 32-057-22

Robert Leckey, Prof. (Law – McGill University)

No, no, you’re good.

Volume 32 (November 28, 2022), page 57 32-057-24

Richard Moon, Prof. (Law – University of Windsor)

All right. Well, you know, thank you. I’m, you know, very pleased to be included in this. I almost feel like I should begin with an apology to the translators, because I haven’t often spoken to Parliamentary committees, but on the few occasions I have, I’ve invariably been told to slow down. So I will at least try, to begin. All right. So section 2(b) of the Charter protects freedom of expression. But more fully, it protects freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication, but I am going to simply speak about freedom of expression. It’s generally understood that it matters, it’s important, as a fundamental right or freedom, because it’s necessary to the -- I know, it’s passion -- it’s necessary to the operation of a democratic form of government; it contributes significantly to development of truth, of the growth of individual or collective knowledge; and it’s important to self- realization. I would add, though, I think it’s important to keep in mind freedom of expression doesn’t just protect individual liberty, in the sense of individuals’ kind of personal, private space. It protects a social activity. It protects the right of an individual to speak to others and to hear what others may say. It’s a social activity that invariably involves the use of collective resources, whether that be the park, the streets, or the internet. And I think that’s important to keep in mind. All right. The scope of freedom of expression. It protects communication, something along those lines. And what our courts have said, it protects any activity that is intended to convey a meaning or a message to others, and I think it’s worth noting that the court illustrates this with the example of parking against the rules. So ordinarily, if you park contrary to whatever the rules may be, presumably you do so because you won’t -- don’t want to pay, you know, whatever might be the cost of doing so, or you can’t find a convenient spot. But, says the Court, if you park against the rules in order to protest in some way, then that counts as expression. Now, that suggests a fairly broad understanding of expression. In principle, any act can be an act of expression if performed with the intention of communicating a message. It also means that any law could, in theory, be a restriction on expression if it happens to restrict the way in which someone has chosen to express themselves. Now, the example given by the Court, refers to parking. You know, maybe it’s convenient that we’re thinking of cars, but we could, of course, think of other vehicles as well when thinking about acts of expression. As Professor MacDonnell earlier referred to, the Court, though, recognizing the potential breadth of the scope of this right, has said that it doesn’t include acts of violence; that’s what they said initially. And then subsequently said, and it doesn’t include threats of violence as well. So if an act involves -- it’s not about -- doesn’t exclude advocacy of violence, and that can be dealt with under section 1, potentially. But from the scope of section 2(b), it only excludes acts that have the form of violence, like terrorist acts, some kind of physical violence directed at another, and threats to do so. All right. So the Court has said that picketing, advertising, hate speech, obscenity are -- all fall within the scope of section 2(b), but of course, are subject to reasonable limits under section 1 of the Charter. I won’t say anything more about section 1 because it’s been very well covered already. But maybe one thing worth noting is, the Court said with regard to freedom of expression, when we move on to section 1 in considering limits, though all these different forms of expression are protected, some have more weight, or more value than others when we are considering limits. So for example, political speeches, core-value speeches closely, says the Court, connected to the values that underlie our commitment to freedom of expression, and so it has a high value, it will be harder for the state to justify its restriction. On the other hand, hate speech, obscenity, commercial advertising are less directly connected to these values and, therefore, it may be easier for the state to justify restriction. Okay. I wanted to quickly say -- talk about three issues; free speech issues that might be, you know, worth considering. One of them is hate speech, and in Canada, hate speech is restrictive under certain human rights codes, not all of them; and, at the moment, not under the Canada Human Rights Act, but that may change at some point. And it’s restricted, of course, under the Criminal Code, under section 319(2), which prohibits the wilful promotion of hatred against the members of certain identifiable groups. There are two kinds of harms that we can connect to hate. One of them is the harm directly experienced by members of a target group; threats, intimidation, harassment, for example, and most of the US cases are about that kind of harm. The other kind of harm is the spread of hateful views within the larger community. So that some in the community may be persuaded by others to take a particular view about members of the group with the result that those who hear these views may adopt more hateful attitudes or may even take action against the members of targeted groups. And most of the Canadian cases have been concerned with that kind of harm, with hate speech laws directed at that kind of harm. And our courts, in a number of ---

Volume 32 (November 28, 2022), page 57 32-057-25

Robert Leckey, Prof. (Law – McGill University)

About two minutes left of -- -

Volume 32 (November 28, 2022), page 61 32-061-16

Richard Moon, Prof. (Law – University of Windsor)

Okay. I’ll get there. So our Courts had been willing to uphold these restrictions on hate speech, focusing primarily on the fact that the laws are very narrow in their scope. Focusing on speeches, extreme -- is understood as vilifying the members of particular groups. Okay. I’ll say no more about that, then. Another issue that seems relevant is the question of the right of individuals to access government-owned property in order to communicate. I wrote about this fairly extensively in my background paper, and so I’ll just boil it down to this; our courts have said that they’re really two kinds of state- owned properties. There are what might be called public arenas or public forums; properties that by tradition or in practice are generally open to the public for communication and individuals have a prima facie right to enter onto those properties in order to communicate. Obviously, their expression can be restricted for a variety of reasons, but those reasons are not simply that the state owns the property and can exclude someone from it. And then there are other properties to which individuals don’t ordinarily have the right to enter onto and communicate, and they are described as, paradoxically sometimes, private forums or something like that. And the state doesn’t have to justify the exclusion of expression from those properties. So we’re talking about government offices; broadcast facilities, properties of that kind. And then, I guess, finally, I just wanted to say a little bit about social media, and the changes that it has brought to our thinking about freedom of expression. I think one change is speech that previously was not considered harmful, at least to a degree that might justify its general restriction, we now may be viewing differently. For example, disinformation or deceit of course has been subject to very particular restrictions in the past; false advertising, defamation and so forth. But it is become such a large problem, I think we are having to think increasingly about whether or not there need to be larger restrictions or interventions on this form of speech. And I think the same could be said about speech that is insulting or harassing. It takes on a different character online when so many people can pile on, or it can be persistent, or the insult harassment can be widespread and endure in many ways. And then finally, I just want -- oh, go ahead -- yeah, yeah. My final remark is to say of course what social media also means is the traditional legal responses to these harms are increasingly impractical. They’re too slow. They’re too cumbersome to really address these. And that’s why there is much more thought being given to how social media can, itself, be engaged in taking this material down. And that brings a range of different challenges.

Volume 32 (November 28, 2022), page 61 32-061-18

Robert Leckey, Prof. (Law – McGill University)

Thank you. Thank you. And social media and disinformation, we’ll come back a little bit later this week. Professor Gaudreault-Desbiens?

Volume 32 (November 28, 2022), page 63 32-063-14

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Yes. Thank you very much. For the sake of time, I will speak directly to on issue that Professor Moon raised, which is that of disinformation, false news. And since I had written my notes in French, I will switch to French. Alors, je veux simplement rappeler que -- and please remind me to speak slowly, this has always been a challenge. Alors, il faut rappeler ici que la notion même de fausse nouvelle est ambigüe, elle recouvre des réalités qui sont extrêmement différentes, ça peut aller de représentations hyperboliques qui sont faites dans un but satirique à des mensonges qui sont énoncés ou des représentations qui sont fabriquées sciemment en vue de tromper. On sait que dans l’arrêt Zundel de 1993, la Cour suprême du Canada a invalidé une disposition qui pénalisait les fausses nouvelles et dont les origines remontaient au Moyen-Âge. La Cour a, à ce moment, rappelé que les critères de la liberté d’expression mettent souvent en jeu une opposition entre l’opinion majoritaire au sujet de ce qui est vrai ou correct et une opinion minoritaire impopulaire, et, d’une certaine façon, en mettant en pratique l’esprit… l’éthique relativiste qui inspire le libéralisme, la juge McLachlin — telle qu’elle l’était à l’époque — nous expliquait que la liberté d’expression est une garantie qui sert à protéger le droit de la minorité d’exprimer son opinion, quelle qu’impopulaire qu’elle puisse être, et cetera, et cetera, et cetera. Donc, elle voyait dans la justification de l’invalidité de cette criminalisation des fausses nouvelles un moyen de protéger l’opinion minoritaire. C’est donc le droit. Par ailleurs, il faut voir que le droit canadien n’impose pas en amont d’obligation de vérité à ceux qui s’expriment, et c’est important de le dire dans le contexte d’une discussion juridique. Ce n’est qu’en aval, ex post facto, que le droit pourra rendre des personnes qui ne disent pas la vérité, dans des circonstances très bien balisées, des propos faux qu’ils ont tenus, comme, par exemple, en matière d’atteinte à la réputation. Une chose qui me parait très, très importante de noter, c’est que l’écosystème expressif dans lequel nous évoluons depuis une vingtaine d'années avec l'internet, avec la montée en puissance des médias sociaux, ce n’est plus le même que celui dans lequel nous avons grosso modo vécu pendant 150 ans, et Zundel a été prononcé dans cet autre monde, dans l’Ancien Monde, avant l’arrivée d’internet et la montée en puissance de ce qu’un grand sociologue français, Pierre Rosanvallon a appelé « l’âge de la défiance » par rapport à « l’âge de la confiance ». Alors, si on doit continuer de prendre au sérieux les préoccupations de la Cour suprême du Canada dans Zundel à propos de la complexité des fausses nouvelles, on doit quand même prendre acte du fait, comme le dit le professeur Moon dans son texte, son Policy Paper, que le cadre qui est mis en place parait un petit peu daté, il pourrait devenir une forme de cheval de Troie qui ferait obstacle à une appréhension véritablement complexe de ce nouvel écosystème normatif. En effet, la capacité de mobilisation et d’action autour de stratégies de désinformation a été décuplée de telle sorte que toute analyse d’une manifestation, comme celle sur laquelle se penche cette Commission, peut difficilement faire l’économie au moment d’émettre des recommandations de ce qui provoque en amont de telles manifestations et de ce qui va en provoquer d’autres. Comme l’a souligné mon collègue de l’Université de Montréal Pierre Trudel, les différentes catégories de fausses nouvelles n’appellent pas toutes les mêmes interventions alors que la capacité de distinguer les propos satiriques relève d’une stratégie de promotion…

Volume 32 (November 28, 2022), page 63 32-063-18

Robert Leckey, Prof. (Law – McGill University)

Peut-être un peu plus lentement.

Volume 32 (November 28, 2022), page 66 32-066-03

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Oui. I’m sorry. …relève d’une stratégie de promotion de l’amélioration des capacités de lecture des internautes. Lutter contre la falsification volontaire de l’information pourrait passer par des régulations plus fortes et plus conséquentes. Et là-dessus, il faut bien voir comment les réseaux fonctionnent : par des processus algorithmiques qui sont protégés par des secrets… par le secret commercial et qui sont le fondement du modèle d’affaires des réseaux sociaux et, d’une certaine façon, on le sait très bien, on crée des bulles, des bulles informationnelles qui créent non pas un choc d’idées, comme le veut la théorie classique en matière de liberté d’expression, mais plutôt des compartiments étanches entre des univers informationnels différents, et le collègue en question, Trudel, suggère d’imposer à terme aux opérateurs des réseaux sociaux des obligations de transparence. D’un point de vue constitutionnel — évidemment, ce sera à la Cour de le faire en temps et lieu —, je pense qu’il va falloir revisiter le cadre applicable à la saisie des fausses nouvelles. Peut-être via la reconnaissance d’un statut spécial à ce que la professeure Vicki Jackson de Harvard appelle « les institutions du savoir » — « knowledge institutions » —, telles que les universités, les musées, les agences statistiques gouvernementales, mais qui transigent à distance du gouvernement, les tribunaux également, donc des acteurs sociaux qui ont comme objectif principal l’analyse ou le développement, selon évidemment leur fonction particulière, d’informations fiables qui sont produites ou qui sont filtrées selon des standards éprouvés et vérifiables. Et même si on peut dire que la distinction entre les faits et les valeurs n’a plus l’étanchéité qu’elle avait dans le passé, on doit réfléchir à ces questions-là. Et, d’une certaine façon, j’ai peur de dire que notre droit constitutionnel en matière de liberté d’expression mérite d’arriver au 21e siècle, on n’y est peut-être pas encore, le monde a changé, et peut-être de revoir, même s’il se fonde sur des bases très, très solides, de revoir l’espèce d’angélisme relativiste qui l’a inspiré à bien des égards et qui nous faisait croire qu’en bout de ligne la vérité allait triompher ou pouvait triompher. Je vais m’arrêter là pour l’instant parce que, bon, j’avais plein d’autres choses à dire sur la question de la propagande haineuse aussi… ah, je vais le dire 30 secondes. Monsieur le doyen Leckey va me le permettre, j’espère. La criminalisation de la propagande haineuse au Canada se fait en fonction de variables identitaires, autrement dit la stigmatisation de groupes qui sont définis à partir d’une identité quelconque, le genre, l’orientation sexuelle, la race, l’ethnie, et cetera. Dans notre société où la polarisation politique est exacerbée, bien sûr qu’on retrouve beaucoup de cette propagande haineuse traditionnelle, mais il y a aussi une stigmatisation radicale et virulente des personnes qui participent à l’activité gouvernementale, qu’elles soient élues ou qu’elles fassent partie de l’Exécutif. Ces personnes-là sont victimes d'attaques virulentes et parfois haineuses sur les réseaux sociaux en raison de la fonction qu’elles exercent au sein des institutions démocratiques, et, d’une certaine façon, là aussi il va falloir se poser des questions. C’est évidemment pas la Commission qui va régler ces questions, mais les législateurs vont devoir prendre ces choses-là au sérieux, mais c’est tout cet écosystème expressif qui se met en place en amont et qui est très différent de ce qu’on connaissait auparavant qui va favoriser l’émergence de mouvements sociaux parfois violents, pas toujours, mais qui vont mobiliser des personnes et peut-être, parfois, les mener à poser des gestes collectifs qui vont prendre… qui en viennent à subvertir la démocratie et les processus démocratiques. Je m’arrête.

Volume 32 (November 28, 2022), page 66 32-066-05

Robert Leckey, Prof. (Law – McGill University)

Merci beaucoup. Il se peut aussi qu’il y ait une dimension intrasexuelle (phon.) à cela aussi puisqu’on a l’impression que ce sont peut-être les personnes féminines qui occupent des fonctions publiques qui sont peut-être victimes le plus souvent…

Volume 32 (November 28, 2022), page 68 32-068-18

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Bien sûr.

Volume 32 (November 28, 2022), page 68 32-068-23

Robert Leckey, Prof. (Law – McGill University)

…le plus virulemment des attaques.

Volume 32 (November 28, 2022), page 68 32-068-25

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Bien, absolument. Factuellement, ç’a été démontré…

Volume 32 (November 28, 2022), page 68 32-068-27

Robert Leckey, Prof. (Law – McGill University)

C’est démontré très bien.

Volume 32 (November 28, 2022), page 69 32-069-01

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

…que des personnes issues de mino… de groupes racisés qui occupent des fonctions publiques, que les femmes, la violence à leur égard est encore plus forte.

Volume 32 (November 28, 2022), page 69 32-069-02

Robert Leckey, Prof. (Law – McGill University)

C’était le professeur Gaudreault-Desbiens. I’m looking at the time and we have one more topic still, the relationship between the Emergencies Act and the Charter. So if someone has literally two minutes or less further on freedom of expression, I would be delighted to take it. But we collectively spent longer on peaceful assembly. Freedom of expression, final intervention?

Volume 32 (November 28, 2022), page 69 32-069-06

Robert Leckey, Prof. (Law – McGill University)

Okay. Thank you very much. Commissioner?

Volume 32 (November 28, 2022), page 69 32-069-16

Robert Leckey, Prof. (Law – McGill University)

Unless there is an answer, a short answer for the Commissioner? Professeur Gaudreault- Desbiens?

Volume 32 (November 28, 2022), page 70 32-070-04

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Bien, d’abord, comme je l’ai mentionné, dans l’état actuel du droit, la désinformation est permise, et c’est protégé constitutionnellement. C’est Zundel qui met en place le cadre juridique. Donc, évidemment, stigmatiser de manière particulière des messages serait en soi une source de contestation constitutionnelle et si, d’aventure, le Parlement décidait d’édicter des lois, par exemple dans ses champs de compétence en matière de télécommunications, pour davantage resserrer les contraintes dans un sens qui favoriserait une hiérarchisation des informations à partir de faits pour que les faits objectifs, les faits avérés démontrés fiablement ressortent davantage que les fausses nouvelles, la désinformation, bien, évidemment, en soi, ce serait probablement contesté. Ma thèse, c’est que, à terme, l’approche traditionnelle de neutr… que les tribunaux ont adoptée un peu partout quant à leur neutralité par rapport au contenu va devoir être remise en cause. On n’en est pas là, mais j’ai l’impression qu’on s’en va un peu vers là. Et les questions de maintien de l’espace démocratique qui sont au fondement de notre ordre constitutionnel doivent aussi être prises en considération. Il y a une citation que j’aime beaucoup qui vient… qui est un classique du droit constitutionnel américain, mais c’est le juge Jackson qui disait en 1949 dans l’arrêt Terminiello, une affaire de liberté d’expression, il disait : « The choice is not between order and liberty. It is between liberty and order and anarchy without either. There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom it will convert the constitutional Bill of Rights into a suicidal pact. » Et d’une certaine façon, je pense qu’on doit réfléchir au périmètre des garanties constitutionnelles de la Charte canadienne aussi à la lumière de cette valeur fondamentale qui est la démocratie, qui nourrit, qui irrigue la liberté d’expression notamment, c’est une des valeurs sous- jacentes. Et puis on doit, si on regarde dans une perspective institutionnelle le continuum des droits qui sont garantis dans la Charte, il y a aussi un droit qui s’appelle le droit de vote, des élections au minimum a tous les cinq ans. Et vous posiez la question sur l’occupation tout à l’heure, alors là quel est le type de message que l’on veut envoyer? Si c’est un changement radical de régime, alors, ben, qu’on fasse de la politique.

Volume 32 (November 28, 2022), page 70 32-070-07

Robert Leckey, Prof. (Law – McGill University)

La Charte canadienne n’a que 40 ans, donc c’est intéressant de constater que déjà la jurisprudence peut paraitre un peu périmée sur certains points.

Volume 32 (November 28, 2022), page 71 32-071-25

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

It’s a part of life.

Volume 32 (November 28, 2022), page 71 32-071-28

Robert Leckey, Prof. (Law – McGill University)

Returning now, we have literally five minutes. So Professor Bird will share perhaps a comment or two on the relationship between the Emergencies Act and the Charter. Professor Bird?

Volume 32 (November 28, 2022), page 72 32-072-02

Brian Bird, Prof. (Law – University of British Columbia)

Thank you, Dean Leckey. So in these comments, I just want to kind of intensify or amplify the radar with respect to how the Charter and the Emergencies Act converse. And so most of the commentary on the Federal Government’s use of the Emergencies Act this year has focused on whether the circumstances in Ottawa last February amounted to a public order emergency. In other words, whether the Federal Government was legally entitled to invoke the Act. This is, of course, a very important question for this Commission, but it’s also not the end of the story. This Inquiry is tasked with investigating the circumstances that led to the declaration being issued and the measures taken for dealing with the emergencies. So even if the invocation of the Act was lawful, what about the legality of the measures that followed? This question looks beyond the issue of whether the Federal Government, either at this moment or any other moment in history, can lawfully invoke the Act. It certainly engages the downstream issue of whether measures taken after invocation fall within the scope of powers granted by the text of the Act, but the legality of these measures also implicates foundational considerations within the Canadian legal landscape. It invites us to think about how the Emergencies Act converses with the Canadian Constitution. And in particular, as we’ve been discussing today, the Canadian Charter of Rights and Freedoms. And so it could be perhaps tempting to think that the Act, given its substance, and purpose, and the stakes transcends, or somehow transcends the Charter. Put differently, if the Federal Government concludes that a given situation satisfies the criteria that permit recourse to the Act, its invocation, some citizens, maybe even the Government itself, might slide into thinking that practically anything goes in responding to the emergency and that the Charter need not be consulted. But this way of thinking would be incorrect. The starting point is that every instance of state action in Canada must comply with the Constitution. To the extent that an instance of state action is inconsistent with the Constitution, the action is null and void. This principle applies with equal force to the Emergencies Act, both in terms of the substance of the Act, its text, and decisions taken by government pursuant to it. The preamble to the Act actually refers to the Charter, noting that the Federal Government would be subject to the Charter when exercising powers granted by the Act. Now, to be clear, the Charter would still govern the use of the Act, even if the preamble did not mention the Charter. And as for why Parliament included this reference, perhaps it was intended to help us avoid that headspace described earlier, where the Act is somehow perceived as beyond the reach of the Charter. Now it seems fair to say that in general, the substance of the Act does not unjustifiably limit Charter rights and freedoms. What I mean by that is that legislation that permits the state to take temporary but severe action to deal with extreme situations, insurrections, terrorism, and so forth, will certainly or almost certainly interfere with various Charter guarantees, like the ones we’ve been describing or discussing today. Even so, most, if not all of us, can agree that those interferences in those extreme situations would often be justifiable under section 1 of the Charter. But matters become more complicated once the Federal Government actually invokes the Act and has recourse to the emergency powers at its disposal. Now, assuming for the moment that the circumstances on the ground satisfy the definition of a national emergency in the Act, it would be incorrect to suggest that each and every use of the powers in the Act that follow invocation will inevitably or automatically comply with the Charter. Even if an emergency, as contemplated by the Act exists, each emergency is unique in nature. The Federal Government must therefore ensure that its use of emergency powers, depending on the features of the emergency at hand, limit Charter rights and freedoms in ways that satisfy section 1.

Volume 32 (November 28, 2022), page 72 32-072-07

Robert Leckey, Prof. (Law – McGill University)

Thank you. Thank you very much. So we now have our little pause where we look at some questions, and then we’ll come back for a final much shorter session. Thank you very much, panelists.

Volume 32 (November 28, 2022), page 74 32-074-27

Robert Leckey, Prof. (Law – McGill University)

We have several questions. We'll begin with the one we wanted to address most importantly I think. There may be a perception by the police this past winter that the Charter, Canadian Charter of Rights and Freedoms prevented them from, say, stopping the movement of trucks into parts of the city, and so we're curious if there are thoughts on how the Charter -- and this is combining, I think, section 2 and section 1, so the Charter as a whole, I mean, would police have been able to stop truckers from driving through zones that were zoned as no trucks? Would the Charter have allowed police to stop people parking their trucks? Would the Charter have been satisfied if people were told to, you know, park here and we'll bus you over to a different zone where you could gather. We're wondering if you have thoughts on those. First one will start.

Volume 32 (November 28, 2022), page 75 32-075-07

Richard Moon, Prof. (Law – University of Windsor)

We'll attempt that. I mean, I guess I have to preface any answer to that question with really what I think came out in our discussion and that is people have the right to protest. Protest invariably involves some disruption of ordinary property use, and the question always is what are the appropriate limits. And it's accepted that municipalities, for example, can put in place different kinds of restrictions, even notice requirements, if you have a large protest to inform the police or municipality in advance that you intend to do that. So I think the short answer is I think they probably could do those things. They could say no trucks parked in this area. No parks -- no trucks can enter into this area. But it has to, notionally at least, be justified as a reasonable restriction on the right to protest. And certainly, it strikes me -- this is easy to say in hindsight that it could easily be understood as reasonable given the amount of space, the pollution, the noise and so forth that a truck could generate. So, again, the real challenge, and I don't envy those who have to make decisions here around any of these questions is that, ultimately, it is a very practical determination to decide how much disruption, how long, so forth, and it would not, to my mind, be unreasonable to say trucks in a space like this is a significant disruption, and the protest can happen but it's legitimate to exclude trucks from it.

Volume 32 (November 28, 2022), page 75 32-075-23

Robert Leckey, Prof. (Law – McGill University)

Professor Moon, if I could just follow up, you were talking about reasonable limits and so on, which is evoking the idea of a limit prescribed by law and so on. Do you think, like, existing no truck zone by-laws or whatever form those rules take, would that have been enough as the legal basis for the police to interfere with what they perceived to be the exercise of the democratic rights?

Volume 32 (November 28, 2022), page 76 32-076-20

Richard Moon, Prof. (Law – University of Windsor)

Without kind of, you know, having a sense of what the array of existing rules are that could be drawn upon, I think the answer might be yes, but I don't know enough about what the ---

Volume 32 (November 28, 2022), page 76 32-076-27

Robert Leckey, Prof. (Law – McGill University)

Sure. So you're ---

Volume 32 (November 28, 2022), page 77 32-077-03

Richard Moon, Prof. (Law – University of Windsor)

--- by-laws would be.

Volume 32 (November 28, 2022), page 77 32-077-04

Robert Leckey, Prof. (Law – McGill University)

--- you're hedging your bets a little bit.

Volume 32 (November 28, 2022), page 77 32-077-05

Richard Moon, Prof. (Law – University of Windsor)

I am absolutely.

Volume 32 (November 28, 2022), page 77 32-077-07

Robert Leckey, Prof. (Law – McGill University)

Yeah, thank you. Professor Mathen and then Professor Cameron.

Volume 32 (November 28, 2022), page 77 32-077-08

Carissima Mathen, Prof. (Law – University of Ottawa)

So I think it's also fair to look to past practice and it is true that in the past there were protest and assemblies that did involve trucks, but they did not stay, and that seems to have been part of the landscape in which law enforcement was operating, but there was also information indicating that they intended to stay. And so had they taken that to the real statement of intent that would pose a different kind of enforcement problem, then I think that would be the basis on which you could absolutely seek to prevent that mode of assembly. Again, it's -- it comes down to what does the fundamental freedom actually entail. But certainly, given the scale of the vehicles and the information that was widely circulating about what was the intent for those vehicles, at a minimum, yes, you could in that context reasonably restrict them from proceeding in the way that they wanted to, to the positions where they wanted to place those vehicles.

Volume 32 (November 28, 2022), page 77 32-077-10

Robert Leckey, Prof. (Law – McGill University)

I'm wondering if Professor Cameron has a different point of view.

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Jamie Cameron, Prof. (Law – York University)

I'm not sure what my point of view is, but I would just observe that in Toronto, I believe I'm correct in saying that the trucks were stopped from coming into downtown Toronto. And so the same kind of situation never crystallized in Toronto. As for Ottawa, I would say there's a significant difference between a flow-through demonstration, so where the trucks flow through in a day or two days, and the trucks stay. As to whether and when they could be stopped, I'm not really sure. I would worry a little bit about prior restraint kinds of concerns were all trucks to be stopped and never given any opportunity to come into the capital city and make any kind of demonstration, I would worry a little bit about that, but it's an awkward situation, obviously, because once the trucks are there and they come in, the enforcement issue arises very quickly.

Volume 32 (November 28, 2022), page 77 32-077-28

Robert Leckey, Prof. (Law – McGill University)

Professor Bird?

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Brian Bird, Prof. (Law – University of British Columbia)

Just very quickly, I just -- just zooming out a bit, just it strikes me that often other protests, give marches where people are walking the streets, maybe even, you know, stopping in a city square or intersection, oftentimes protests will involve abnormal use of a space. You know, normally people don't walk down major boulevards and that's -- usually you use cars and usually they'd be on the sidewalks instead. Sometimes that -- maybe even some cities, I don't know the array of by-laws, but even walking on streets, marching streets might well also breach by-laws. So just to say that an abnormal use of public space for the purpose of protest is -- seems to be quite common, but I agree with all the comments so far as well. Very important.

Volume 32 (November 28, 2022), page 78 32-078-16

Robert Leckey, Prof. (Law – McGill University)

So the factual question of whether there was prior notice of an intention to park might well be very significant as one thinks this through.

Volume 32 (November 28, 2022), page 79 32-079-01

Richard Moon, Prof. (Law – University of Windsor)

Well, so much ---

Volume 32 (November 28, 2022), page 79 32-079-12

Robert Leckey, Prof. (Law – McGill University)

Professor Moon.

Volume 32 (November 28, 2022), page 79 32-079-13

Richard Moon, Prof. (Law – University of Windsor)

--- determines as what the legal authorisation would be to remove, and some believe there would be a variety of rules that would permit that, and then the question is whether that would be justified, and I think the consensus would be, particularly in this circumstance, it would be.

Volume 32 (November 28, 2022), page 79 32-079-14

Robert Leckey, Prof. (Law – McGill University)

Professor Cameron?

Volume 32 (November 28, 2022), page 79 32-079-20

Jamie Cameron, Prof. (Law – York University)

Simply to add that on the question of reasonable limits, there is -- there are a number of variables. And as for the assembly itself, the general principle is that the assembly needs to be allowed to have an opportunity to present its message. So whatever that reasonable scope of time is, I'm not sure on the facts of this convoy, but then at a certain point in time it becomes unreasonable for the vehicles to stay. So I think that's a fairly safe assessment.

Volume 32 (November 28, 2022), page 79 32-079-21

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor MacDonnell?

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Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Just to say that I think this comment about the point at the moment in time is quite important, because actually, the requirements of justification under section 1 may well be shifting as the situation evolves; right? And so this is -- my colleagues, Colleen Flood and Brian Thomas, have done some very helpful work on, you know, in an emergency, in a situation like this, you know, what is the court's response or what's the response, you know, of the state, it has to be connected to what's actually happening, what the facts are. And so that includes, you know, like the situation in what's justifiable in the first 24 hours of the protest will be different than what's justifiable in Week 1 and Week 2 when you start layering in significant disruption and concerns about, you know, the health and safety of others, like this shifts, the kind of -- the complexion of the justification analysis. And so actually that element of time is quite crucial and changes sort of what's permissible; right? And that, you know, also changes the state's obligations I think; right? So in the -- at the beginning, there is very little information about a fluid situation, the government has to make a call, they have to act, and they're entitled to act on the best information available to them, and they may not get it perfectly when they're trying to balance the interests of the community. And I think cases like Irwin Toy, which Professor Mathen sort of -- you adverted to without naming the case, but you know, is also in Professor Moon's paper, it -- they're very clear that in theses complex situations the government is entitled to act without full knowledge, sort of in good faith. But as time goes on and more information becomes available, then the situation can change, and sometimes the state is under an obligation to kind of adapt its initial assessment of the situation.

Volume 32 (November 28, 2022), page 80 32-080-03

Robert Leckey, Prof. (Law – McGill University)

The idea of the sort of changing situation, I mean it's very interesting. It takes us a little bit off the initial question of the police, whether they were entitled to sort of stop the trucks before they came in. Commissioner, have you heard enough about the trucks? (LAUGHTER)

Volume 32 (November 28, 2022), page 81 32-081-08

Robert Leckey, Prof. (Law – McGill University)

We had another sort of specific question about the Charter and what it requires of us. So the Emergency Measures Regulations included a prohibition, as you'll know, on public assembly: "A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by: ...the support of the threat or use of acts of serious violence against persons or property." And it also said that: "A person must not travel to or within an area where [such] an assembly...is taking place." So persons prohibited from entering the area where an assembly might, you know, reasonably be expected to lead to a breach of the peace. Are there views over whether these rules in the Regulations would appear to be, you know, reasonable limits on Charter rights? Professor MacDonnell?

Volume 32 (November 28, 2022), page 81 32-081-17

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I mean, I'd be very curious to hear the thoughts of others, but it strikes me, you know, at first blush that that type of provision might well be - - might be overbroad; right? And so section 7 of the Charter provides that individuals have a: "...right to life, liberty and security of the person and [a] right not to be deprived thereof except in accordance with the principles of fundamental justice." Now, to the extent that those provisions prohibit individuals from being in an area at all, they may -- you know, one of the principles of fundamental justice is that laws not be overbroad; right? They shouldn't capture more people than the objectives of the provision are aimed at. And so it may well be that that's the kind of provision that that provision wasn't sort of sufficiently tailored. That's a possibility.

Volume 32 (November 28, 2022), page 82 32-082-11

Robert Leckey, Prof. (Law – McGill University)

Thank you. We've got Professor Mathen and then Professor Cameron, then Professor Bird.

Volume 32 (November 28, 2022), page 82 32-082-28

Carissima Mathen, Prof. (Law – University of Ottawa)

So I think in considering this question, which on its face it does look to be overbroad, it is important to consider the very definite time limits in which the Emergencies Act operates, which is essential to its core feature, and that will factor into whether in the circumstance that kind of prohibition is in fact overbroad. I would also point out that with respect to the prohibition on travel, I believe it was accompanied by a series of exceptions.

Volume 32 (November 28, 2022), page 83 32-083-03

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Okay.

Volume 32 (November 28, 2022), page 83 32-083-11

Jamie Cameron, Prof. (Law – York University)

Yeah, exemptions, yes.

Volume 32 (November 28, 2022), page 83 32-083-12

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

And were those criminal ---

Volume 32 (November 28, 2022), page 83 32-083-13

Jamie Cameron, Prof. (Law – York University)

Exemptions.

Volume 32 (November 28, 2022), page 83 32-083-15

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

--- are those -- were those criminal prohibitions?

Volume 32 (November 28, 2022), page 83 32-083-16

Robert Leckey, Prof. (Law – McGill University)

Professor Mathen, just a second.

Volume 32 (November 28, 2022), page 83 32-083-18

Robert Leckey, Prof. (Law – McGill University)

There's exceptions, and we're asking whether there's a criminal -- yeah.

Volume 32 (November 28, 2022), page 83 32-083-21

Robert Leckey, Prof. (Law – McGill University)

Yeah, they're offences under section 10 of the Regulation. Professor Mathen, did we cut you off? Did you finish?

Volume 32 (November 28, 2022), page 83 32-083-24

Carissima Mathen, Prof. (Law – University of Ottawa)

No, I just wanted to say that there was some tailoring of the specific travel -- the precise mobility restriction was also accompanied by exceptions. It doesn't ---

Volume 32 (November 28, 2022), page 83 32-083-28

Robert Leckey, Prof. (Law – McGill University)

Yeah.

Volume 32 (November 28, 2022), page 84 32-084-04

Carissima Mathen, Prof. (Law – University of Ottawa)

--- obviate the fact that some people would have been prevented from travel, and that was indeed the very intention of the ---

Volume 32 (November 28, 2022), page 84 32-084-05

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

Yes.

Volume 32 (November 28, 2022), page 84 32-084-08

Carissima Mathen, Prof. (Law – University of Ottawa)

--- Regulation.

Volume 32 (November 28, 2022), page 84 32-084-09

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor Cameron.

Volume 32 (November 28, 2022), page 84 32-084-10

Jamie Cameron, Prof. (Law – York University)

Thank you. Just a discrete point, which has to do with the designation of protected places, and the potential over designation of protected places, in particular, section 6(f) that allows any other place to be designated as a protected place by the Minister of Public Safety and Emergency Preparedness. I just have some concerns about that provision and its consequences for public assembly and other Charter rights, including freedom of association, those who might wish to associate with a valid, viable assembly. Thank you.

Volume 32 (November 28, 2022), page 84 32-084-12

Robert Leckey, Prof. (Law – McGill University)

Thank you. Professor Bird?

Volume 32 (November 28, 2022), page 84 32-084-22

Brian Bird, Prof. (Law – University of British Columbia)

I'm just going to say that, thank you, that the constitutionality of those Regulations may also be informed by just the nature of the emergency. They could be overbroad for the reason stated by colleagues, on its face, but given the nature of the particular emergency in which they're being applied it may not be, just depending on the actual application, just what's on the ground. And so it maybe on its face potentially some overbreadth issues, but depending on the nature of the emergency it may end up not being perhaps an overbreadth issue at the end of the day once it's actually applied. Just a thought there.

Volume 32 (November 28, 2022), page 84 32-084-24

Robert Leckey, Prof. (Law – McGill University)

Professor Bird, do you want to explain a little more? I mean, if someone were to bring a constitutional challenge to the enactment they'd be challenging the written down rule.

Volume 32 (November 28, 2022), page 85 32-085-07

Brian Bird, Prof. (Law – University of British Columbia)

Sure. No -- thank you for that. I think that the -- it may well be that a part of the analysis might be that given the nature of what's at stake in a potential invocation of the Emergencies Act what the Act is meant to deal with, assuming that there has been a lawful invocation of a Public Order Emergency, Public Welfare Emergency, et cetera, et cetera, that might well inform whether the regulations that have been put to us are overbroad as well. So it just depends whether we're deal with an emergencies legislation, I think it also needs to be brought into the picture as to whether that overbreadth actually pans out. But I do also share the concerns of my colleagues that that needs to be brought into the conversation too.

Volume 32 (November 28, 2022), page 85 32-085-11

Robert Leckey, Prof. (Law – McGill University)

Thank you.

Volume 32 (November 28, 2022), page 85 32-085-24

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

You can move on if you'd prefer.

Volume 32 (November 28, 2022), page 85 32-085-25

Robert Leckey, Prof. (Law – McGill University)

Professor Moon, were you wanting to jump in?

Volume 32 (November 28, 2022), page 85 32-085-27

Richard Moon, Prof. (Law – University of Windsor)

No, I was just -- I really just wanted to first reiterate what Professor Mathen, and that obviously the temporary nature of it makes a difference; and secondly, I imagine a certain degree of deference is going to be given in a situation where rapid action is understood to be necessary, and obviously we’d call it emergency response, then we would understand rapid action to be necessary. So I’m -- it is, obviously, on the face, very broad, and would, just in isolation, be troubling. But I think those factors certainly would have to be taken into account.

Volume 32 (November 28, 2022), page 86 32-086-01

Robert Leckey, Prof. (Law – McGill University)

Thank you. Okay. So we’re going to move on, is that okay, to the next question?

Volume 32 (November 28, 2022), page 86 32-086-11

Robert Leckey, Prof. (Law – McGill University)

And there’s, I mean, a potential rule of law issue, in the sense that there’s a rule you must not participate in a public assembly that may reasonably be expected to lead to breach of peace, how do you know when a particular assembly has met that threshold, such that you’re prohibited from going there? There are real questions about that.

Volume 32 (November 28, 2022), page 86 32-086-20

Robert Leckey, Prof. (Law – McGill University)

Professor MacDonnell?

Volume 32 (November 28, 2022), page 86 32-086-28

Vanessa MacDonnell, Prof. (Law – University of Ottawa)

I don’t want to drag on the discussion, but there are actually just two very small points that I think are relevant to this overall discussion. One is that violations of section 7 are very rarely saved under section 1 of the Charter. So once established, they’re very rarely found to be justified. But to the extent that the Courts have suggested that there’s an opening for finding section 7 violations to be justified, it’s in an emergency situation. And so, you know, one of the things to recognize might be that, you know, we may acknowledge that on the face these laws were overbroad, but this very important context that my colleagues have been speaking about is relevant under section 1, in terms of understanding whether, you know, a degree of overbreadth, which would normally not be permissible, might, in a specific context, where a declaration of emergency has been made, in a time limited way, be found to be justified. And so that, I think, is important. Another quick thing though that may be intentioned with this is, as my colleague, Professor Bird, pointed out, the Emergencies Act is pretty clear that the Charter continues to apply. And so there is a bit of a tension. All Charter analysis is contextual, does take its colour from the circumstances, and here the emergency is part of the circumstances. But to my mind, that type of argument also has its limits because the Emergencies Act specifically keeps the Charter in play, and in fact, the model of emergency control that we have adopted incorporates the Charter as an important safeguard. And so to me, that means, you know, I’m glad I’m not the one making the decision, because there is -- there’s a tension in there.

Volume 32 (November 28, 2022), page 87 32-087-01

Robert Leckey, Prof. (Law – McGill University)

Other thoughts on this one? Professor Mathen?

Volume 32 (November 28, 2022), page 88 32-088-17

Carissima Mathen, Prof. (Law – University of Ottawa)

Just because the question was raised who is the decider, I did just want to point out the interesting separation of powers issues that arises here, because initially you have an executive branch determination, but it is in very short order, subject to legislative oversight and the opportunity, in various ways, to contest that. And so bring -- again referring to what Professor Moon said, the zone for deference here to the decision being made in extremis literally is something that I think could be useful to consider.

Volume 32 (November 28, 2022), page 88 32-088-19

Robert Leckey, Prof. (Law – McGill University)

Thank you. So we’ll take a crack at another question. And counterprotests are in the question here. So we’re wondering, you’ve got someone protesting, or an assembly is protesting, and then there’s prospect of a counter protest that could bring violent confrontation. And so we’re wondering, does the kind of realistic prospect of a counterprotest that will perhaps issue in violence, does that make the initial protests violent or, you know, attach a threat of violence to it? Professor Cameron?

Volume 32 (November 28, 2022), page 89 32-089-01

Jamie Cameron, Prof. (Law – York University)

Thank you. In researching the paper, I encountered quite a bit of commentary on just this point in the international jurisprudence and so forth. And basically the position that’s taken in that jurisprudence is that the authorities have an obligation and a duty to protect the primary assembly in those circumstances, so that where a counterprotest presents itself, and poses risks to the viability and the safety of the principal assembly is the duty of authorities to deal with the counter protest and protect the assembly, which is an interesting point of view. We don’t have much guidance in Canada, but that’s what I found when I was researching the paper.

Volume 32 (November 28, 2022), page 89 32-089-12

Robert Leckey, Prof. (Law – McGill University)

Thank you very much. Other colleagues on that one? Professor Gaudreault-Desbiens?

Volume 32 (November 28, 2022), page 89 32-089-24

Jean-François Gaudreault-Desbiens, Prof. (Droit – Université de Montréal)

Well I think that this position is quite sensible and reasonable, actually, the duty that is imposed upon the state to protect the first assembly, while not prohibiting counter-protestors to express themselves. So you can imagine a situation where police officers create a kind of corridor between the two, but it’s quite -- it’s a rather onerous burden. But still, both must have the ability to express their views while taking into consideration this duty to protect the first assembly.

Volume 32 (November 28, 2022), page 89 32-089-27

Robert Leckey, Prof. (Law – McGill University)

And perhaps, Professor Cameron, so I hear you saying what you state in the literature, if protest is seriously harming or threatening the livelihood of the potential counterprotests, does that in any way change their position?

Volume 32 (November 28, 2022), page 90 32-090-08

Jamie Cameron, Prof. (Law – York University)

Well if there are -- excuse me, if there are difficulties with, we’ll call it the primary assembly, then those can -- if that’s what you mean, then those can, of course, be addressed.

Volume 32 (November 28, 2022), page 90 32-090-13

Robert Leckey, Prof. (Law – McGill University)

And if the primary assembly is blocking a bridge that is shutting down the workplaces of the potential counterprotests, so, like, they’re not just people expressing a different point of view, ---

Volume 32 (November 28, 2022), page 90 32-090-17

Jamie Cameron, Prof. (Law – York University)

Well they ---

Volume 32 (November 28, 2022), page 90 32-090-21

Robert Leckey, Prof. (Law – McGill University)

--- does that change it?

Volume 32 (November 28, 2022), page 90 32-090-22

Jamie Cameron, Prof. (Law – York University)

Sorry. They both might be subject to regulations, so we wouldn’t rule out the prospect of reasonable limits on the primary assembly, but the counterprotest would still be subject to limits insofar as it is confronting and escalating the situation with the primary assembly. That would be my view.

Volume 32 (November 28, 2022), page 90 32-090-23

Robert Leckey, Prof. (Law – McGill University)

Commissioner, anything?

Volume 32 (November 28, 2022), page 91 32-091-01

Richard Moon, Prof. (Law – University of Windsor)

It’s -- yeah, that’s not exactly ---

Volume 32 (November 28, 2022), page 91 32-091-11

Robert Leckey, Prof. (Law – McGill University)

Professor Moon?

Volume 32 (November 28, 2022), page 91 32-091-13

Richard Moon, Prof. (Law – University of Windsor)

--- counterprotest, I guess, in the sense that it’s an attempt to exercise what are considered to be a right, the right to ---

Volume 32 (November 28, 2022), page 91 32-091-14

Richard Moon, Prof. (Law – University of Windsor)

--- move and drive. Certainly the starting point is everybody has the right to protest, to counterprotest, and so forth. And then the challenge always is if it looks like there will be conflict, to what extent can the police manage that? And only exceptional situations, where it's just unmanageable, given their resources, could it be shut down. But the starting point always has to be both sides. But that’s an interesting and challenging question about my right to exercise my ordinary mobility that is directly coming in conflict with what the protestors are attempting to do.

Volume 32 (November 28, 2022), page 91 32-091-18

Robert Leckey, Prof. (Law – McGill University)

Thank you. We’re out of time, so we’re going to stop without moving on to the fast- hitting question of separating the acts of individuals from the assembly as a whole, which we might otherwise come back to. Thank you very, very much for your contributions.

Volume 32 (November 28, 2022), page 91 32-091-28

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci…

Volume 32 (November 28, 2022), page 92 32-092-16

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

…Monsieur le commissaire. Alors, bonjour à toutes et à tous. Je m’appelle Patrick Leblond. Je suis le modérateur de cette séance. So I'll be moderating this session on Financial Governance, Policing and Intelligence in terms of -- I'm not sure how to best translate, but gouvernance financière, maintien de l’ordre et renseignements financiers. We're very privileged today to have five experts, four in person, one person online. Premièrement, j’aimerais introduire Michelle Cumyn qui est professeure titulaire à la Faculté de droit de l’Université Laval. Next, we have Jessica Davis, who is President and principle consultant at Insight Threat Intelligence. She is also the President of the Canadian Association for Intelligence and Security Studies. Then Michelle Gallant, who is Professor at the Faculty of Law at the University of Manitoba. And then we have Gerard Kennedy, who is an Assistant Professor also at the Faculty of Law at the University of Manitoba. And finally, Christian Leuprecht, who is the Class of 1965 Distinguished Professor at the Royal Military College of Canada. He is also the Director of the Institute of Intergovernmental Relations in the School of Policy Studies at Queen's University, and he joins us online from Germany if I am correct. So, de la façon que ça va fonctionner, les panélistes experts/expertes vont faire des commen… une présentation d’un maximum de 15 minutes, ensuite il va y avoir une discussion que je vais modérer, des questions, et après la pause on va avoir une autre série de questions et de réponses. So I would like to start with, in terms of the order, Christian. Are you ready to go?

Volume 32 (November 28, 2022), page 92 32-092-20

Christian Leuprecht, Prof. (Political Science – Royal Military College)

Merci de l’introduction. Vous m’entendez bien?

Volume 32 (November 28, 2022), page 93 32-093-23

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Très bien. Merci.

Volume 32 (November 28, 2022), page 93 32-093-25

Christian Leuprecht, Prof. (Political Science – Royal Military College)

Merci. Je vais introduire en anglais, mais je vais prendre vos questions dans les deux langues officielles. So a team that I led supported the Cullen Commission with a submission that figured prominently in the final report released in June 2022. And invoking EA is symptomatic of deficiencies and shortcomings reported by the Cullen Commission. I also published a recent book on Intelligence as Democratic Statecraft across the Five Eyes countries that includes substantial information, and financial intelligence; and have a forthcoming book on financial crime in Canada. So let's look at the typology here. This was not money laundering or tax evasion. The phenomena that we have here is probably closest to terrorist financing. There was an immediate use value to funds provided, the purpose for which those funds were provided was ambiguous, it wasn't clear whether they were being withdrawn for legal or illegal purposes. And small donations can have a relatively large impact, and in this case, can also serve as a proxy for the extent of public support. So let’s think about this: A G7 country, with the world’s 10th largest economy, had to invoke the EA, in part to get a handle on some crowdfunding that was in part sustaining some illegal activity. What does this tell us about the adequacy, effectiveness, and efficiency of Canada’s financial regime? Within Canada, money laundering is currently governed by 15 different laws and regulatory instruments. At the federal level, Canada currently has 12 agencies tasked with AML enforcement and prosecution, while there are approximately 14 within each province. In February, this sizable financial crime policing apparatus was unable to achieve the necessary strategic effect without the EA. That casts a long shadow over the purported efficacy of laws, regulations, and agencies. And although Canada’s system appears quite robust, it is actually very weak. So weak, in fact, that Transparency International has ranked Canada at the bottom of G27 countries -- of G20 countries. What are the implications? First, the inadequacy of legislation, regulations, and agencies. Key allies can achieve the same strategic effect without invoking emergency measures because their legislation, regulations, and agencies are actually up to date and properly postured and funded. Second implication: The inadequately [sic] of the posture of Canadian agencies. Expert federal agencies and their financial reporting entities couldn’t get it done under existing rule of law powers. Third implication: At least a perception, if not a reality, of the unequal, inequitable, idiosyncratic application of the rule of law; that is, crowdfunding played a role in blockades of critical infrastructure and other environmental protest, for instance, that crossed into -- the line into civil disobedience; illegality, perhaps criminality, including disregard for Court injunctions. But no extraordinary measures were taken to stem financial flows to these groups. So the impression? When the government is sympathetic to protesters and their cause, it goes easy on them. When the government is not, it will go to extraordinary lengths to shut them down. That impression, if not the reality, undermines the very premise of constitutional democracy; that the rule of law applies equally to all citizens, to thwart precisely what we’re witnessing here, the tyranny of the majority. Fourth implication: In February, the Prime Minister wanted foreign money funding illegal protests in Canada to stop. Minister Mendicino remarks -- remarked about the number of contributions and their sheer size. But CSIS testified before this very Inquiry that it found no foreign actors funding the protest and told the government that back in February. So did the government engage in deliberate misinformation of foreign funding anyway? Implication 5: Compare the Prime Minister’s preoccupation with foreign funding of a relatively small but tenacious protest in Ottawa, with this government’s inaction on Chinese foreign influence in Canadian elections and democratic institutions; Chinese police stations in Canada; and sanctions on Russia. Words in Canada speak louder than action. In the UK, 19 billion pounds and assets have been frozen; in Belgium, 52 billion euros, in Canada, $122 million Canadian. It would appear that dirty Russian money in Canada is not a priority. But 20 million raised over three weeks, entirely from Canadian sources for protest by Canadians, warrants invoking the EA? There are two ways to read this. The threats to Canadian democracy are as real from within as they are from without, or that it’s okay for US, Chinese, and Russian money to interfere with Canada’s democratic processes and interests, just not for Canadians with Canadian money, especially there -- if they’re opposed to the federal government or its policies. Six implications: Donors came from across Canadian society, including Prairie farmers. They’ve now seen how the government is prepared to go after people and their assets, should they fund a social movement that is opposed to the current government or its policies. The unintended consequence? They’ve restructured their assets to put them out of reach for government, and moved support for controversial social movements online onto crypto currency, which makes these financial flows less visible and harder to track. So the yay has had perverse incentives of making work much more difficult for intelligence agencies. The conclusion: Was it really worth to invoke the EA? So how did we get here, and what does it tell us? First, financial intelligence in this country is embarrassingly weak. FINTRAC is an outlier among FIUs. It’s an administrative FIU; it does not have investigative capacity, the right to request directly from the reporting entities any additional financial information, and the right to freeze suspicious transactions. FINTRAC is a passive type of FIU because it mostly produces reactive disclosures that are linked to voluntary information records submitted by law enforcement. Canada has an exceptional defensive reporting regime that, at $6.8 billion a year, is very expensive for banks. Justice Cullen concludes law enforcement bodies in this province cannot count on FINTRAC to produce timely, actionable intelligence. Second; weak criminal intelligence and the inadequate posture of enforcement agencies. There’s a paucity of investigative and prosecutory ability. In 2018, for example, the RCMP publicly confessed that it had no expertise to conduct sophisticated financial or corporate investigations. Canadian data show that 86 percent of money laundering charges filed between 2012 and 2017 never made it to trial because they were withdrawn or stayed. There are sensational recent examples in both Toronto and Vancouver to this effect. And in 2020, the RCMP disbanded its Financial Crimes Unit in Ontario altogether because priorities shifted. Third; weak legislation. Just one example, at least since 2002, FATF has recommended that governments pass laws to ensure that lawyers collect, maintain, and disclose information concerning client billings to government regulators. This step is thought to be necessary to guard against the use of lawyers as willing or unwilling dupes who are being paid with crooked dollars. In peer reviews, FATF has highlighted the ongoing non-compliance by two countries that refuse to abide by the disclosure recommendation: Canada and the United States. Fourth; weak penalties. For instance, KPMG, one of the world’s big four accounting firms had set up an aggressive tax plan that they marketed to a high-net worth individuals who lived mainly in British Columbia. In March 2016, the CBC published reports that indicated the CRA had entered into overly generous settlement agreements with taxpayers. One unhappy taxpayer went to the media with their complaints, but part of the controversy surrounded the fact that no sanctions were ever levied against the tax advisors, the accountants and the lawyers who set up and then marketed the plan in the first place. What does this tell us? That Canadian national security, including financial intelligence, is not fit for purpose for the 21st century. What’s the government’s response? It announces seemingly ambitious but essentially unquantifiable and vague policy to root out corruption; increase regulatory oversight; tackle the opioid crisis; make housing more affordable for ordinary Canadians. Compare that to the government’s determined commitment and response to counterterrorism. By contrast, the EA and Cullen are a measure of the government’s inattention to financial crime. How, then, to explain the disconnect between the Canadian state’s overt commitments and its failure to deliver on such commitments? Because there is no political or corporate will. The message is, “Don’t ask, don’t tell.” Especially the Panama Papers and the Paradise Papers’ findings, as well as the 2020 Tax Justice Network figures, suggest that Canada is not unduly worried about the cleanliness of financial flows, whether from immigration or from investment. There’s a mix of activities that are illicit, for example, capital flight and business investment; illicit, for example, white collar crime and tax evasion; and on the fringes of legality, for instance, aggressive tax avoidance and trade- related malpractices. Having spent decades building a reputation a haven and global shelter for illicit gains, the government does not have the intent to slaughter its golden goose. Invoking the EA sends a clear message, this is a one-off measure to contain a controversial social movement that is causing the federal government at the time political headaches. Purveyors of dirty foreign money and their enablers need not worry because Canada isn’t about to change its regime or its mantra. Canada is still open for dirty money. The Commission confirmed what we all already knew, that the Cullen Canadian financial regime works very well for criminals and the ultra rich to the detriment of the middle class and everyone else. The message in invoking the EA, “If you’re a criminal or ultra rich, you need not worry.” In short, the justification for invoking the EA that, instead if building a financial regime that’s actually fit for purpose for the 21st century, temporarily invoking the EA was far more expedient. Merci.

Volume 32 (November 28, 2022), page 93 32-093-27

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Christian. So, actually, you were within time, excellent. Now I would ask Jessica Davis, please -- 15 minutes.

Volume 32 (November 28, 2022), page 100 32-100-20

Jessica Davis, President (Insight Threat Intelligence)

I’d like to begin by thanking the Commission for inviting me to be part of this roundtable. I believe that this inquiry has a critical role to play in making Canada safer and more just. Today, I’d like to share four main points with you. I want to first address the issue of foreign funding of the convoy and why that was so contentious for Canadians. I will then discuss the issue regarding regulating crowding platforms and some of the cost and benefits of this approach. Third, I want to raise the issue of unintended consequences of the global anti-money laundering counter-terrorist financing regime and Canada’s role in that. And then, finally, I’ll discuss the role of asset seizure in response to a protest. I’ll conclude with a brief set of recommendations. Before I get too far into this, though, I do want to emphasize one point. During my comments, I’ll be talking about money laundering and terrorist financing. This is the context of Canada’s anti-money laundering counter-terrorist financing regime and changes to FINTRAC’s legislation and regulations. I want to be clear, though, that the convoy protest financing falls outside of definition of both money laundering and terrorist financing, which is part of why some of these amendments were made. So let’s talk about foreign funding of the convoy. As we saw from this Commission’s work, the majority of the convoy was not foreign funded. There were some foreign donations, particularly to the crowdfunding campaigns, but the majority of the money distributed to the convoy protesters came from Canada, either from the online campaigns, or through email money transfers, or through cash donations. The uproar around potential foreign funding began early, as soon as people began to see other people who self- identified as from outside Canada donating on those public platforms. These donations raised the issue of potential foreign influence, both overt and covert, relating both to the funding of the protests as well as potential artificial amplification of convoy-related messaging on social platforms. Many Canadians expressed surprise that this was permitted under Canadian law. The strong from Canadians about foreign funding of the protests, real or imagined, is an opportunity for Canada. It tells that Canadians are concerned about this and that, for many, the idea of foreign or foreign individuals being able to contribute funds to political causes in Canada is unacceptable. We should take this as an opportunity to scope and legislate limits to foreign funding in Canada, including, potentially, limits on contributions to political causes, limits to donations to politicians, even outside an election cycle, and the creation of a registry of foreign agents. This would go a long way toward dissuading the concerns of Canadians about foreign entities clandestinely, deceptively, or even overtly seeking to influence Canadian politics. I now want to briefly touch on the issue of crowdfunding campaigns and their regulations. The inclusion of crowdfunding platforms as reporting entities under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act was a somewhat curious response to the convoy. It was curious for a number of reasons. Because one of the platforms had already taken action to remove one of the main campaigns due to potential breaches of service -- terms of service, rather, because many of the funds were already frozen, because much of the funding of the convoy wasn’t even happening through those crowdfunding campaigns but rather through those email money transfers and cash donations, as well as payments for expenses like hotel rooms from individuals not present in Ottawa, and finally, because the decision was also made to freeze those individual accounts at the same time, it remains unclear what the regulations were meant to do or how they helped bring about an end to the convoy protest. The regulation of crowdfunding platforms created new reporting entities for FINTRAC, but I question whether it actually created a new source of financial intelligence that could be used to counter the protest or other potential threats to the security of Canada. Prior to the Emergencies Act, for example, some of the funds from the crowdfunding platforms would already have been reported to FINTRAC by entities already regulated under the Act, like banks, when those transactions reached reporting thresholds. Aside from those mandatory reporting thresholds, most of which have already been covered prior to the emergency measures, the new regulation of crowdfunding platforms requires these platforms to now file suspicious transaction reports. But in the context of a crowdfunding campaign, I struggle to see how these entities will report suspicious transactions, particularly when that reporting is limited to suspected money laundering or terrorist financing. As an aside, crowdfunding platforms are not widely used for either of these types of financial crimes. Instead, when we see crowdfunding platforms being used for this -- or crowdfunding, rather, it’s primarily off-platform campaigns, so basically social media calls that are more widely used, which of course falls outside the scope of the regulations. And back to the issue of creating new reporting entities for FINTRAC. This means that FINTRAC now needs to ensure that they comply. Adding more reporting entities without significantly enhancing FINTRAC’s ability to conduct compliance exams, for example, is a missed opportunity. Last year, the centre completed 151 compliance exams, but there are tens of thousands -- I believe 24,000 reporting entities. So this regulation might not have achieved much, further stretched FINTRAC’s compliance function, and contributed to over and duplicative reporting to FINTRAC, and there’s little point in creating more regulations without simultaneously enhancing FINTRAC’s ability to ensure compliance. I’ll move on to my third point, which is a little bit more about the unintended consequences and global implications of this. The international regulation of crowdfunding platforms -- so, since the convoy, there have been other calls for global standards to regulate these platforms as part of the global counter-terrorist anti-money laundering efforts. But these, again, are not based on much evidence of use for these platforms for illicit purposes but instead represent more -- something like more like low-hanging regulatory fruit. At a recent No Money for Terror Ministerial Conference, the host country, India, called for further regulation of the sector, something that Canada’s now leading the way on internationally, for better or for worse. As countries and multi-lateral bodies continue to regulate more and more sectors under these global anti-money laundering counter- terrorist financing rules, it’s important to keep in mind that there are plenty of intended consequences of these efforts. For instance, authoritarian regimes often use these laws and regulations adopted to conform to these global norms to crack down on dissidents in their own countries. As my colleagues from the Royal United Services Institute recently noted, these laws are used for a number of things, including politically motivated pre-trial detention, targeted audits, and asset freezes. Canada’s now leading the way on regulating crowdfunding platforms, something that can easily be misused by authoritarian states, all under the guise of compliance with international norms, and that regulation has been adopted without consultation, public analysis of cost and benefits, or even an articulation of what it’s meant to achieve. I’ll move on now to the role of asset freezing, seizures as a response to the protest. This is probably the most contentious element of the emergency measures because it directly targeted Canadians and their financial wellbeing without judicial authorization. The freezing of accounts and financial assets in Canada is usual done with judicial authorization. This is no small measure.

Volume 32 (November 28, 2022), page 100 32-100-25

Jessica Davis, President (Insight Threat Intelligence)

When accounts are frozen, there are serious efforts, not only for individuals directly targeted by the asset freezes but their family, employees, and business associates. There are serious implications for individuals who might not be able to pay mortgages, child support, rent, groceries, et cetera. At the same time, when these measures are used in a targeted manner, they can be highly effective at encouraging people to cease and desist illegal activity and can facilitate a peaceful resolution. However, the way these emergency measures were implemented raises a number of issues. The main issue was in the identification of individuals whose account should be frozen. While the RCMP provided a list of influencers to financial institutions, financial institutions were also enabled to use their own internal processes to identify individuals whose accounts should be frozen. When such extraordinary powers are used, there should be a clear list of individuals to whom these measures apply. Deputizing banks to make their own determinations about freezing of accounts created the possibility of mistakes, uneven application of measures between banks, and allowed the spreading of misinformation that further fuelled anti-government sentiment. The emergency financial measures served as a lightening rod for the convoy protestors, enhancing their distrust in government and lacked sufficient guidance, oversight, and transparency. While the measures might have been a justified and proportional response to the Ottawa occupation and border blockades, something for this Commission to consider, their implementation raises serious concerns. Let me now conclude by summarizing the recommendations that have -- I have mentioned in this commentary. So there are a number of issues that I've raised here today that require legislative, regulatory, or other policy responses to make Canada safer and more just. So I recommend that we limit foreign funding of political activities in Canada, both overt and covert, through legislation, including a registry of foreign agents. I further recommend that the Government of Canada undertake consultations on crowdfunding regulations and any future expansion of the proceeds of crime, money laundering, Terrorist Financing Act, specifically with an eye towards unintended consequences and setting of international norms. These are powerful tools that are easily misused in the wrong hands. Canada should also enhance its ability to examine the compliance of reporting entities under the regime. Our compliance regime is already stretched, and adding more reporting entities does not improve the situation. And finally, any future use of the Emergencies Act and financial measures should include provisions to clearly specify the scope of financial targeting, enhancing transparency around that financial targeting and reporting and direct financial institutions in a more concrete way. Such sweeping financial powers should not be left to individual financial institutions' judgement. Thank you very much for your time today, and I'm pleased to answer any questions you have or expand on any of the points I've made.

Volume 32 (November 28, 2022), page 106 32-106-01

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Jessica. Alors, on va poursuivre. Maintenant, je demanderais à Michelle Cumyn. S’il vous plait, Michelle.

Volume 32 (November 28, 2022), page 108 32-108-05

Michelle Cumyn, Prof. (Droit – Université Laval)

Oui, merci, Professeur Leblond.

Volume 32 (November 28, 2022), page 108 32-108-09

Michelle Cumyn, Prof. (Droit – Université Laval)

Alors, je m’appelle Michelle Cumyn. Mon expertise porte principalement sur les règles du droit privé applicables au sociofinancement et, de façon plus accessoire, je m’intéresse aussi à la gouvernance des plateformes en ligne qui offrent des services de sociofinancement. Mon intervention portera sur trois éléments, les trois éléments suivants qui sont tirés du rapport d’expert que j’ai préparé à la demande de la Commission sur l’état d’urgence et qui est publié dans son site web. Premièrement, le droit privé applicable au sociofinancement sous forme de dons; deuxièmement, le caractère politique et parfois subversif de certaines campagnes de sociofinancement; et troisièmement, la portée des nouvelles mesures qui visent à assujettir la plateforme de sociofinancement aux dispositifs découlant de la Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes. Alors, premier élément, le droit privé applicable au sociofinancement sous forme de dons. Le sociofinancement sous forme de dons fait naitre des rapports juridiques entre trois acteurs ou trois catégories d’acteurs. D’abord, le porteur de projet qui lance la campagne de sociofinancement et qui souvent administre les dons; ensuite, les donateurs qui contribuent à la campagne de sociofinancement; et enfin, les bénéficiaires à qui sont destinés les dons. Le porteur de projet peut être une personne physique, une personne morale, ou un groupement informel qui souvent n’a pas même d’existence juridique. Par exemple, je pourrais former un groupe qui s’appelle « Liberté 2022 » et lancer une campagne de sociofinancement en indiquant « Liberté 2022 » comme porteur de projet. Quant aux bénéficiaires de la campagne, il peut s’agir de personnes nommément désignées ou il peut s’agir d’un groupe de personnes plus ou moins bien défini, ou enfin, il peut s’agir d’un projet ou d’une cause. Par exemple, le groupe Liberté 2022, porteur de projet, pourrait lancer une campagne qui a pour objet de payer les dépenses de Luc Tremblay arrêté pendant le convoi de camionneurs. Dans ce cas, le bénéficiaire est une personne nommément désignée. Ou alors, le groupe Liberté 2022 lance une campagne ayant pour objet de soutenir financièrement tous les camionneurs qui ont participé au convoi. Les bénéficiaires font alors partie d’un groupe plus ou moins bien défini. Et enfin, troisième possibilité, Liberté 2022 pourrait lancer une campagne de sociofinancement ayant pour objet de soutenir la création d’un film pour raconter le convoi, auquel cas il s’agit de financer un projet. À ces trois catégories d’acteurs, donc le porteur de projet, les donateurs et les bénéficiaires, il faut ajouter la plateforme en ligne qui offre des services de sociofinancement. Par exemple, GoFundMe ou GiveSendGo, deux plateformes qui ont été impliquées pendant le convoi. Ces plateformes publient les modalités de la campagne de sociofinancement sur une page dédiée de leur site et acheminent les dons des donateurs au porteur de projet ou aux bénéficiaires. Pour prélever les dons et les transférer, les plateformes de sociofinancement ont recours à dans entreprises de services monétaires tels que PayPal, ApplePay, GooglePay, et ainsi de suite. Le cadre juridique applicable au sociofinancement sous forme de dons est mal défini dans le droit privé des différentes provinces et territoires du Canada. Le droit privé doit permettre de déterminer qui est le propriétaire des dons et qui a le contrôle sur les dons et à quel titre. En droit québécois, on se demande qui est donataire. Est-ce que c’est le porteur de projet ou est-ce que ce sont les bénéficiaires? S’il s’agit du porteur de projet, cela implique qu’il en est pleinement propriétaire et qu’il peut en disposer à sa guise. Les donateurs et les bénéficiaires auraient alors peu de recours si les dons n’étaient pas utilisés conformément à l’objet de la campagne. Donc, il serait préférable de considérer que ce sont les bénéficiaires qui sont donataires; après tout, c’est aux bénéficiaires que les dons sont destinés. Cependant, on rencontre alors un problème quant à la validité des donations, toujours selon le droit québécois, parce que, pour que les donations soient valides, il faut l’acceptation du donataire et cette acceptation fait souvent défaut, surtout si la campagne a pour objet de soutenir un groupe de bénéficiaires mal défini, un projet ou une cause. Dans le droit des autres provinces et territoires du Canada, la qualification de fiducie – « trust » – serait probablement retenue. Ainsi, le porteur de projet et toute autre personne qui se charge d’administrer et de distribuer les dons seraient considérés comme fiduciaires de ces sommes — « trustee ». Cette solution apparait comme la plus souhaitable parce qu’elle impose des devoirs stricts au porteur de projet et aux autres personnes qui administrent les dons afin qu’elles soient tenues d’utiliser les dons pour l’objet de la campagne de sociofinancement. Cependant, l'application du droit des fiducies soulève des difficultés en droit canadien actuel parce qu’il s’agit souvent de fiducies ayant un objet non caritatif — a non- charitable purpose trust. Ainsi, la fiducie risque d’échouer en raison de l’indétermination de son objet. Par ailleurs, le droit actuel ne donne pas de solution adéquate lorsque les dons deviennent impossibles à utiliser pour réaliser l’objet de la campagne ou qu’il subsiste un reliquat de ces dons. C’est pourquoi la Conférence pour l’harmonisation des lois au Canada — Uniform Law Commission of Canada — a conçu une Loi uniforme sur le sociofinancement sous forme de dons qui permet de résoudre ces difficultés. La Loi uniforme reconnait que le sociofinancement sous forme de dons donne naissance à une fiducie et adapte les règles de la fiducie pour mieux régir les rapports entre les parties. L’adoption de la Loi uniforme à l’échelle canadienne apportera une meilleure protection aux donateurs et aux bénéficiaires et clarifiera les rapports juridiques à l’égard des dons, à qui appartiennent ces dons et qui peut exercer un contrôle sur eux. Cette question me semble essentielle puisque les tentatives de règlementer le sociofinancement, comme celles dont nous discutons aujourd’hui, peuvent dépendre, pour leur mise en œuvre, de la question de savoir qui détient les fonds ou les dons et à quel titre. Par ailleurs, un autre avantage de la Loi uniforme est qu’elle permettra de baliser les pouvoirs des plateformes de sociofinancement. À l’heure actuelle, les conditions d’utilisation des plateformes leur accordent une très grande discrétion qui leur permet de s’immiscer dans l’administration et la disposition des dons. La Loi uniforme prévoit que toute personne agissant de la sorte devient fiduciaire. Ainsi, les devoirs stricts qui incombent aux fiduciaires s’appliqueraient aux plateformes de sociofinancement dès qu’elles interviennent dans l’administration et la disposition des dons. Le deuxième point que je souhaite aborder concerne le caractère politique et subversif de certaines campagnes de sociofinancement sous forme de dons. Certaines campagnes de sociofinancement ont attiré l’attention ces dernières années en raison de leur caractère politique et même subversif. On se rend compte de leur efficacité pour mobiliser et financer des mouvements citoyens et parfois des mouvements de contestation qui ébranlent l’État. On a vu le sociofinancement jouer ce rôle lors du mouvement de protestation de 2019 à Hong Kong. Les manifestants ont su tirer profit des attributs suivants qui caractérisent le sociofinancement : sa simplicité, sa spontanéité, son informalité, son caractère mobilisateur, son caractère international, et sa capacité de déjouer les autorités. On retrouve ici, me semble-t-il, certains parallèles avec l’utilisation du sociofinancement lors du convoi. La campagne Refund The Wall est un autre exemple intéressant d’une campagne de sociofinancement au caractère très politique. Cette campagne qui a permis d’amasser plus de 25 millions de dollars par l’entremise de la plateforme GoFundMe avait pour objet la construction d’une partie du mur que le président Donald Trump avait promis d’ériger sur la frontière entre les États-Unis et le Mexique. Après le début de la campagne et probablement à la demande de GoFundMe, le porteur de projet a constitué une OBNL, une organisation à but non lucratif, pour recueillir les dons. Cela n’a pas empêché plusieurs individus, dont Steve Bannon, de divertir une partie des dons à leurs profits, et ces personnes font l’objet actuellement d’accusations criminelles pour fraude. Plusieurs campagnes de sociofinancement politiquement chargées ont provoqué des scandales, incitant certaines plateformes à s’en distancier et d’autres à les accueillir. Cela peut conduire à la politisation des plateformes elles-mêmes. Je crois qu’il faut garder à l’œil ces phénomènes et s’assurer que les lois électorales sur le financement des partis politiques permettent un encadrement adéquat à l’égard de ces phénomènes. Cependant, du fait même que le sociofinancement revêt parfois un caractère politique, il faut aussi s’assurer que la liberté d’expression et d’association ne soit pas brimée par les contrôles dont il fait l’objet. Par ailleurs, les quelques campagnes fortement médiatisées qui ont une dimension très politique ne doivent pas nous faire oublier que la vaste majorité des campagnes de sociofinancement sont fondées sur l’entraide et la volonté de mener à bien des projets qui sont bénéfiques pour la collectivité. Ce serait dommage qu’en imposant au sociofinancement un cadre trop rigide ou trop lourd, on décourage ces initiatives dont les retombées sont le plus souvent positives. Et le troisième point que je vais aborder très brièvement concerne la portée des modifications au Règlement sur le recyclage des produits de la criminalité et le financement des activités terroristes adopté le 5 avril 2022 pour assujettir les plateformes de sociofinancement sous forme de dons au Règlement, et ici, mon propos va rejoindre dans une grande mesure celui de Jessica Davis avec qui je suis largement en accord. Alors, cette modification peut être vue comme la continuation des mesures financières découlant du Décret sur les mesures économiques d’urgence. Les plateformes de sociofinancement sont désormais considérées comme des entreprises de services monétaires ou des entreprises de services monétaires étrangères. Par conséquent, elles sont assujetties à de nouvelles obligations auprès de CANAFE, à savoir, notamment : Remplir les exigences relatives aux besoins de bien connaitre son client, y compris de vérifier l’identité des personnes et des entités pour certaines activités et opérations; Conserver certains documents, dont ceux concernant les opérations et la vérification de l’identité des clients; et, Déclarer certaines opérations à CANAFE. Comme plusieurs l’ont souligné, il y aurait lieu d’examiner l’utilité de ces mesures puisque les plateformes confient généralement le traitement ou peut-être même… toujours, en fait, dans tous les cas que je connais, elles les confient, le traitement des paiements, à des intermédiaires qui sont déjà visés par le Règlement. Alors, dans ses observations en réponse à mon rapport d’expert, le ministère de la Justice du Canada souligne que la plateforme de sociofinancement possède des informations ou peut mettre en œuvre des mécanismes pour recueillir des informations que ne détiennent pas les entreprises de services monétaires. Je trouverais utile d’en savoir davantage sur la nature de ces informations additionnelles que seules les plateformes de sociofinancement sont susceptibles de détenir et je souhaiterais aussi savoir pourquoi ces informations additionnelles sont nécessaires ou utiles pour la réalisation de l’objet de la Loi. Par ailleurs, je voudrais souligner que plusieurs personnes ou groupes recourent au sociofinancement en créant une page de dons à même leur site web. Ces personnes ou groupes n’utilisent pas les services d’une plateforme de sociofinancement, mais elles utilisent les services d’une entreprise de services monétaires. Alors, selon ma compréhension, de telles campagnes de sociofinancement échapperaient donc aux nouvelles mesures mises en place pour mieux surveiller les activités de sociofinancement. Les porteurs de projet qui désirent éluder les nouveaux mécanismes de cueillette d’informations que devront mettre en œuvre les plateformes de sociofinancement pourraient donc s’y soustraire en créant une page de dons à même leur propre site web. Si le but des modifications introduites le 5 avril 2022 est de s’assurer que la plateforme de sociofinancement vérifie l’identité des porteurs de projet ou des donateurs et conserve une trace de leurs activités, cela me préoccupe du point de vue de la protection de la vie privée. Actuellement, les plateformes de sociofinancement recueillent assez peu d’informations de cette nature. Les données que devraient collecter les plateformes à la demande de CANAFE sont aussi des données dont elles pourraient faire un usage préjudiciable aux individus concernés. C’est la préoccupation que je voudrais formuler. En vous remerciant beaucoup de votre attention.

Volume 32 (November 28, 2022), page 108 32-108-12

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Michelle. So now we’ll move to Gerard Kennedy. Please, Gerald. Fifteen (15) minutes.

Volume 32 (November 28, 2022), page 116 32-116-26

Gerard Kennedy, Prof. (Law – University of Manitoba)

Merci beaucoup pour votre invitation. Je m’appelle Gerard Kennedy. Mon expertise en le droit procédural est le droit administratif. And I’m deeply honoured to be speaking on the procedural rights that individuals have regarding their property and how the invocation of the Emergencies Act would have affected that. In essence, I’m going to suggest that there were indeed common-law procedural rights that individuals have concerning their property that were clearly affected by the events in February. However, because these are common-law rights, they can be overridden by regulation or legislation. So insofar as the invocation of the Act was lawful, taking away procedural rights that people have before being deprived of property was also lawful. And given that the Canadian Constitution doesn’t protect property rights, the Constitution won’t change anything in that analysis. The Canadian Bill of Rights might more plausibly have something to say, but it’s uncertain. From a policy perspective, the legality of sending these procedural rights into abeyance is probably not desirable, and insofar as this Commission has a policy role, I’ll make some recommendations. But I don’t think that affects the legality of what occurred in February. And insofar as procedural rights cannot be reconciled with the Act’s invocation, I would suggest that that is not -- that’s a reason to not give the statutory prerequisites that justify invoking the Act a broad interpretation. In other words, an interpretation more consistent with the preservation of common-law rights should be preferred. Starting with a few first principles, individuals have a right to enjoy their property. That’s been recognized for centuries. That can be limited in various ways. But generally speaking, that is adjudicated in the Courts, either because there is an action to freeze the property or because Individual A has commenced an action against Individual B asserting that their use of the property somehow impinges upon their rights. And in doing so, the rules of procedural fairness and civil procedure have got to be followed. These can look a little different in exigent circumstances, and I’ll return to that, but generally that’s the case. Moreover, before the executive branch of government deprives one of one’s property, it has to follow the rules of natural justice, or to use the modern Canadian Parliament’s procedural fairness, recognized in England for centuries, and certainly applicable in Canada. The content of this procedural fairness will vary according to the circumstances, but generally it’s always going to include notice of the proposed seizure or freezing, and some sort of opportunity to respond. I’d like to emphasize, these are procedural rights to property. It doesn't mean that one's rights to property, the property can't be seized, or frozen, or forfeited, or even destroyed. It does mean, however, that certain procedural hoops need to be jumped through before we go down that route. Moreover, the Executive Branch has no substantive power to take property unless authorised by a statute. So a statute needs to authorise the taking. So prima facie, without getting into the factual weeds, in early February 2022, the members of the convoy had these protections that processes would be followed before their property rights were taken away. However, the Emergencies Act is a statute that clearly authorises takings, and the Emergency Measures Regulations and the Economic Measures Orders make it quite clear that the procedural rights, as well as the substantive rights, were restricted in various ways, as we have already heard from my co-panelists. So to give an obvious example, entities, such as banks, had to cease making available any property for designated persons, among many other things. It made it very clear that no court order was necessary, and the entities were immune from any sort of liability for complying with the Regulations, which probably resulted in erring on the sides of more seizures. Now, I will suggest that that does not fulfill the common law purpose of notice to persuade the decision-maker that you should not be deprived of your property rights because you are not -- you should not be a designated person and there is no centralised authority to making someone a designated person. One could argue that determining individuals to be designated persons is an administrative decision and not a quasi-legislative decision, and that some sort of process should be contemplated there. Possibly, but that doesn't -- that isn't spelled out in the orders, and it's also complicated by the fact that these decisions were generally made by non-state actors, which complicates, somewhat, the applicability of administrative law. I'll come back to this shortly in the policy discussion. Now, we don't live in a country of legislative supremacy entirely. The Constitution constrains government action in various ways, and you heard this morning, and you'll hear later this week about a lot other rights that were potentially impacted by the Act's invocation where the Charter has a lot to say about matters. But property rights aren't in the Constitution. That was a deliberate choice in 1982, and it would be inappropriate to try to give them constitutional status at this stage. It doesn't mean they don't exist, but they're not constitutionalised, not even procedural protections to them, which again makes Canada a bit of an outlier around the world, but it is still very much the case of the Canadian Constitution. The Canadian Bill of Rights on the other hand does guarantee procedural rights regarding property. For instance, section 1(a) guarantees a right to enjoyment of property and the right not to be deprived thereof, except due process of law. This use of due process if fairly rare in Canadian law. It's somewhat of an American import, where we've tended to use natural justice or fundamental justice or procedural fairness. But it has significant overlap, the principles of procedural fairness. Moreover, section 2(e) of the Bill of Rights holds that statues shall not be construed to: "...deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of...rights and obligations..." Though I'll note that that doesn't guarantee a particular process, but rather, interference with processes already authorised at law, so there's nothing problematic from a Bill of Rights perspective with the mere fact that such a process was not prescribed in the orders. Moreover, the procedural protections for property have been interpreted quite narrowly only to instances where there is discretion to deprive the person of their property. So if legislation takes away the right to property unambiguously, the Bill of Rights protections are inapplicable. Moreover, the specific due process rights protected by the Bill of Rights must have existed in 1960, as the Bill of Rights is a statute to be interpreted the way it would have been after it was passed. So what does this mean about the Bill of Rights? Well, the enactment of the Regulations themselves does not pose a Bill of Rights problem because the Governor in Council enacted them in a quasi-legislative capacity. Having such a hearing before Cabinet clearly seems to have not been a right pre-1960. More plausibly, individual decisions about the particular individuals whose assets would be frozen could attract Bill of Rights due process protections because they are administrative rather than legislative acts. At the same time, while that's a plausible reading of the Bill of Rights, there is relatively little case law on it, despite it being over 60 years old. It's never been interpreted in circumstances such as this. There probably is a pre-1960 right to have notice or a hearing before property is frozen by the Executive, but does it apply the implementation of Cabinet decisions? Does it matter that this is an emergency, if not statutorily, at least colloquially? Does it matter that private entities actually did the freezing? Does it matter that these are very clear Regulations? These complicating factors make the way in which the Bill of Rights could affect things somewhat uncertain. So I'm going to transition to my policy points, and in doing so, though, I will discuss what a hearing that preserves a measure of procedural protection, whether at the Bill of Rights, or otherwise, could look like. Procedural law recognises there are exigent circumstances where property has to be frozen soon. So for instance, Anton Piller and Moreva orders in the civil litigation process allows searches of property or seizing of assets without notice if there is reason to believe that responding parties will hide assets or something similar. There has to be judicial authorisation to be sure, but there are opportunities to challenge after the fact, and there will be significant consequences if a party was not forthcoming regarding how it obtained the order. And there are other circumstances, notably in the Money Laundering and Terrorist Financing Act, that give individuals post talkability to challenge asset seizure and get a resolution quickly, addressing the concern already identified, that the freezing and lack of access to one's bank accounts can have a really profound affect on one individual's lives, while still recognising there are circumstances where it is absolutely necessary. But that was not -- such a process wasn't apparent in the Regulations, and I don't think that poses a legal problem, given the broad nature of the Act, but I do think it may be a good idea to amend the Emergencies Act to prescribe a process to review the seizure of property analogous to what is seen in the Money Laundering or Terrorist Financing Act, particularly for emergencies that -- or states of emergency that last quite sometime. Because in this case it lasted nine days, but there is nothing inherent that that's necessarily going to be the case. And I'd like to also echo Jessica Davis's view that the designation of individuals should be named, if not by the Governor in Council, by some sort of designated central authority, both in terms of making it easier to determine the applicability of administrative law principles, and to not have this kind of ad hoc situation where what kind of procedure, if any, would be necessary is very uncertain. So, so far I have suggested that there are ways that we could improve the Emergencies Act and future Orders in Council to preserve more of a protection for property rights, recognising there are exigent circumstances where property rights have to be suspended and traditional civil procedure is not going to work, but in light of that I would suggest because of the general principle of statutory interpretation to rights limiting legislation strictly, I'd encourage the Commission not to interpret the Emergencies Act broadly, given that it can deprive individuals, not just of their substantive rights to property but also any kind of procedural ability to protect it. It's a well-established principle of statutory interpretation that rights restricting legislation, including property rights restricting legislation is to be interpreted strictly. It's also a principle of statutory interpretation that legislation intends to be consistent with the common law to the extent possible. So in this case, if the Commission finds that it's a gray zone, whether the statutory prerequisites for invoking the Act were met, it should bear in mind these common law rights as a reason to not interpret it particularly broadly. That’s not determinative. This Commission should consider all canons of statutory interpretation that likely point in different directions. However, insofar as the legislation sends individuals' due process or procedural fairness rights essentially into abeyance, we should be reasonably certain that Parliament intended for it to apply in these circumstances. That’s not a condemnation that the government didn’t act proportionately here. That will be up for this Commission. I don’t see evidence that it didn’t, but given that a government is not legally obliged to do so, it should consider the long- term implications of that. Merci beaucoup.

Volume 32 (November 28, 2022), page 117 32-117-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Gerard. Maintenant, j’aimerais demander à Michelle Gallant. Michelle, please?

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Michelle Gallant, Prof. (Law – University of Manitoba)

Thank you. Thank you to the Commissioner, thank you to the moderator, to fellow panelists, everyone present, and those of you attending remotely for this opportunity to share some thoughts. It's a privilege to participate and maybe offer something of value. You know, funding is important to securing any aspirations. It doesn’t matter if you're opening a restaurant, if you're starting an industry, if you're going to higher education, or to realize civil society ambitions. You know, funding enables. There aren't a lot of things that are accomplished without some kind of access to finance, to property, and to resources. So in participating today, I would like to simply survey three dimensions of funding and finance; very briefly, funding and the Charter; a little bit on foreign funding and civil society groups; and a little bit about the appropriateness of these particular financial measures. So let me begin by noting that it hasn’t been fully canvassed by the courts at all, but in principle, the idea of fundraising to support a cause, right, or a social movement is protected by the Charter freedom guarantees. There was a round table this morning. They did talk about constitutional freedoms, and I'm sort of drawing on some discussions with Professor Jamie Cameron. But suffice to underscore that funding animates those freedoms, so organizations do have the right to fundraise, and you can't impose a limit on what they use those funds for. That would fall within freedom of expression. Donating to organizations, lots of people donate that donate. That donative act can constitute associational freedom; my association is by giving, right, by donating, and then again, the action is captured by the freedom of association. Broad Human Rights law also places the mobilization of resources amongst the activities that freedom of assembly protects. So there is a report. It's May 2022 from the United Nations Human Rights Council, and it specifically -- it's specifically about funding. It's actually specifically about foreign funding. But it specifically states that: "The right of associations to freely access human material and financial resources from domestic, foreign, and international sources is inherent in the right of freedom of association and essential to the existence and effective operations of any associations." So I know there are limits. Some of those were talked about this morning, but simply to underscore that that funding piece is part of those freedoms. And I would also note that the size of a particular funding campaign -- so even if someone has surprising success in mobilizing resources beyond your dreams, that is not ever without more grounds for a state interference. Simply, a successful fundraising campaign galvanizing lots of resources is not, on its own, any kind of a justification for some kind of state-based interference. So let me say a few things about foreign funding restraints and civil society organizations. As my colleague has commented, so democratic and non-democratic orders all resist foreign funding. It's not just the democratic order thing, all orders resist foreign funding. This idea that, you know, foreign influence, that the meddling of the outsider in the internal affairs of another, it's long been controversial. Usually states, particularly sovereign states, democratic states reserve unto themselves that we have the right to arrange our internal matters and will resist and sort of shut off their boundaries to the kind of foreign influence, including foreign funding. That resistance, that sort of who is -- is sort of just based on this feel that look, we're accountable as a state, I'm accountable to particularly through elections, to the domestic populous, and I'm not accountable to an audience somewhere, anywhere else on the globe. It might be said that the entire project of international law is simply devoted to deliberating upon what's the proper place of external influence on domestic affairs of state? I have to underscore this too. Any money flowing across the border is foreign funding. So if I am a Mexican expat and I'm working here and I'm sending money home to fund my family in Mexico, that, to the Mexican state, is foreign funding. If I'm in the UK and I purchase a football team and I'm a Russian billionaire, to the United Kingdom, that is foreign funding. So any funding that crosses a border constitutes some kind of a foreign funding. But what I wanted to note today is that increasingly, there has been this recognition of -- that there's a recognition that states are imposing restraints on foreign funding. This is a new thing. It sort of started maybe in the last 20 years and it's intensified in say the last 10, this idea of we're going to -- individual states are going to restrain access to foreign funding. How do they do that and what are the strategies? Well, one strategy is simply requiring that civil society groups, if you're going to go and harvest foreign resources, you must register. So you have to seek the approval of the state before you can go elsewhere. Another one is simply -- it's a little more covert -- is the adding of different administrative burdens. So you're an organization and you'd like to secure foreign funding? It's the idea that well, if you want to go after foreign funding, you have to disclose that. You have to fire a number of forms. So it impedes. It's harder to secure foreign funding than it is to secure domestic funding. I think one particularly alluded to, maybe by both of my colleagues here was the idea of a state marginalizing or decrying as illegitimate, or in particular, labelling a domestic organization as a foreign agent as a reason to say, "No monies is flowing here." So that’s another strategy. And again, the idea too would be calling a civil society group as a political organization. So what do we have? So in Canada -- so those are some of the restraints. In Canada, the -- we do have some restraints on foreign funding, and most of those, I think, as my colleague Jessica Davis has canvassed, most of those connect to elections and the formal political process, basically injunctions against foreign support. So that’s the place where we find these restraints on foreign funding. Do we actually see them anywhere else? Well, generally, the idea would be no, we don’t generally have specific injunctions prohibit prohibitions on access to foreign funding. However, what we have seen is we have seen, is we have seen some encumbering -- encumbrancing being imposed on say, registered charities. So for example, now -- this is a result of a few years ago -- now, if a registered charity, which is just a charity, it's governed under tax law, but if you are a registered charity, if you're a civil society organization that’s organized in that way, you actually now have to disclose the presence of foreign funds. So it used to be charities had to disclose broadly how successfully your fundraising efforts, right, how much money did you raise? But now, these particular ones in Canada now have to disclose the presence of foreign funding. So it's not a specific restraint, but it certainly is an exercise in opening up and disclosing the presence of those resources. So we've seen some of these, and I think what's concerning about this, to me, was when I was really looking at this, I thought, this is going to be your usual suspects where we're going to see there's maybe some states that sometimes, at least in Western society, tend to maybe think they're a little bit troublesome. But none of these foreign restraints are -- they're applying in the United States, in Europe, and in Canada. So it's in your reasonably well developed, democratic states that are imposing these restraints. An I would be remiss in not pointing out with respect to foreign funding that in July 2021, it saw the completion of an Alberta report, and the Alberta report deals specifically with foreign funding and the energy campaign and energy campaigns in Alberta. And it was an inquiry that was called in that regard. So that Inquiry, there might be all kinds of other parts of that Inquiry might be uncomfortable with. However, that Inquiry, in its forensic accounting, so it used an accountant, actually did identify an increase in the funding of our donative sector in Canada over the period of 10 years of foreign dollars. So I think the number it says is about 1.6 billion, an increase over that period flowing into Canada. It doesn’t track where it’s from. There’s some sense that a lot of it is from the States, but it does track an increase in foreign funding. And I’m noting, since that inquiry specifically about foreign funding, the first recommendation that that Commissioner made was actually that we need to increase the transparency of the financial sector, in particular, in connection with registered charities. So I would just note, just sort of mention in talking about these foreign funding restraints, any time we introduce an element of disclosure, as you know, right, elements of disclosure, they irritate privacy. So when we seek to introduce, even if the restraints are about introducing and enhancing transparency, those transparency norms irritate. And I say that because generally the act of donating, which my colleague talked about donating to any kind of campaign, normally falls within the realm of financial privacy. It’s not public. There’s no public entitlement to know where I put my donation -- my donative dollars. It’s -- privacy shelters that kind of freedom. Now, I just note that sure, if I have no obligation to disclose and yet I freely choose to disclose in some public media or, you know, tell someone what I’ve done, that’s quite different. There I’ve decided that, look, I’m waiving my financial privacy. But there is always going to be that tension between disclosure and privacy. So let me -- in the few minutes I have left, let me say a few things about the appropriateness, like, turning specifically to the appropriateness or necessity of the particular financial measures that were introduced. I think what I’d like to highlight here, and sort of along the lines of my colleague, when -- my colleague, Professor Kennedy, when you’re talking about the appropriateness or necessity of the particular financial measures. And what I’d like to simply comment on is this idea that simply because we have an emergency situation, once that’s decided, that doesn’t trump or irrigate the complete application of law. So there is space in which we have to determine ad think about were these particular things appropriate or not? Was there particular regimes necessity or not? And in saying that, it’s not sufficient to simply say they worked, the situation dissolved, we solved it. it is not sufficient, because that’s to equate effectiveness sort of with appropriateness, and it means that appropriateness has no meaning, absolutely no meaning. Anything is appropriate. So, you know, the example would be, you know, the sledgehammer killing the fly, but so would the flyswatter, and that would say that the sledgehammer is -- okay, and I’m not commenting on their appropriateness. I’m just outlining some of the things we have to think about. We have to think about whether those -- these particular measures were appropriate or not. So simply in talking about whether the appropriateness of the financial regimes or the necessity of these particular financial regimes, let me simply say that the way in which we might be able to discern that would be to at least think broadly about some kind of a proportionality test. So if you’re a lawyer, you know there’s an Oakes test, and it’s kind of -- what it is is it’s kind of a matrix of proportionality, and basically what would that mean, that would mean, in a sense, okay, let’s look at we have a response, and that response ought to be sort of minimally impacts on individuals; right? So that would be on one side of the equation, while at the same time, be designed to immediately lance a particular public order problem. So you have to think about -- so there’s proportionality between the particular measures, right, and their impact on individuals, not as concerned about institution, more concerned about individuals, and the immediate kind of dealing with the public order situation. And I’m going to end just by adding one more thing to that. So what would be -- some pieces that might be relevant to this proportionality analysis? Certainly foreign funding would be -- it would jostle for some primacy. So if there was foreign funding, not concluding that there was, it’s been outlined that maybe there wasn’t, but the idea of foreign funding would be pretty important in a proportionality analysis. Another thing that would be important, I think, is when people talk about the idea that these measures were temporary, the measures were temporary, but the impact of these financial measures on individuals may not be. And I would simply say this, the Privacy Commissioner has already warned that some information gathered under terrorist finance and suspicious transactions reporting norms, it was wrongful or not clear. Once it went into the final system, there needed to be a way to purge it, to get it out, so that that kind of thing, there was a lingering consequence. So thank you.

Volume 32 (November 28, 2022), page 125 32-125-09

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Michelle. So as the moderator, first I’d like to thank all the experts for their opening remarks presentation. We’ve covered a lot of ground, but there is more to be covered. Avant de poser des questions, j’aimerais donner la chance aux panelistes peut-être si il ou elle on des questions ou aimerait faire des commentaires par rapport à ce que d’autres panelistes ont dit. So I don’t know if you have -- if there are some who have things to say about what the others said? Jessica Davis?

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Jessica Davis, President (Insight Threat Intelligence)

Yes, I just have one quick question, and it’s actually for Michelle Gallant, about the not- for-profit corporations and if they have any restrictions or reporting requirements for foreign funding as well. You talked about the charities, but they’re different.

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Michelle Gallant, Prof. (Law – University of Manitoba)

I’m not aware of any, because generally not-for-profits, the regulation is much lighter, and simply because they don’t give tax deductible receipts; right? So I’m not aware of any. And I would also sort of, just in regards of that, I’m not aware of any restrictions. So there’s not-for- profits, there’s charities, but also sort of ad hoc civil movements. I’m not sure where they would fit in this; right?

Volume 32 (November 28, 2022), page 135 32-135-01

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Patrick Leblond, ici. Anyone else would like to ask or say something? Comment? Michelle Gallant?

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Michelle Gallant, Prof. (Law – University of Manitoba)

Sure. One question I would have is sort of generally, sometimes when we talk about, you know, fixing the financial system, and then we talk sometimes about -- combine that with this idea of, you know, foreign influence, I guess I wonder myself, I have trouble sort of thinking about well, how are going to discern? So my example would be if we’re going to fix -- there’s problems with the financial system and we’re worried about foreign dollars, and I think of an example like, okay, we’re building a church, you know, in Winnipeg, and it’s funded by dollars that are coming from the Vatican. That’s foreign funding. And it could easily -- so I wonder about how do you think through how do you legitimately identify, you know, what are the gaps that need to be filled and what could be left alone?

Volume 32 (November 28, 2022), page 135 32-135-12

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Patrick Leblond. I think that’s a very good question. In fact, if I can ask -- and put it in different terms, because I was going to ask the panel to think about that, and in light of what you also said, Michelle Gallant, in your presentation. And that’s maybe to -- the question of risk; right? And Michelle Gallant, you talked about, you know, administrative registration, for instance, or disclosure; right? And especially with regards to foreign funding. So would a risk-based approach -- I mean, we see it -- I mean, already the anti-money laundering and terrorism financing is based on this notion of risk. What is the risk, in a way, for the state in terms of national security, which is why we have this? In terms of securities legislation, is the same thing; right? There are restrictions, disclosure requirements when it comes to raising funding for financing companies. So in a way, how is that different than raising funding for building a church or for organizing a group; et cetera? So I’d like to hear the members of the panel, and Christian, please, you know, raise your hand if you want to speak. In terms of what are the risks, ultimately, that we are talking about here; right? I mean, obviously the fact that we are talking about foreign funding means that there is a risk. I mean, in terms of politics, as Jessica Davis mentioned, you know, influence, undue influence over the political process is a risk; right? You don’t want foreign states to influence, you know, democratic results in one way or the other. That's why we have rules over funding, et cetera. But what are other risks that are applicable here? So I don't know if anyone wants to go first. Jessica?

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Jessica Davis, President (Insight Threat Intelligence)

It's Jessica Davis. So I think you're right to argue that one of the risks is influence. I think another potential risk is compromise. So, basically, the way that I see it is if an individual or an organization were to accept foreign funding, that is probably intended to buy a certain level of influence with that individual or organization, but there's also the potential for the disclosure of that information to compromise their ability to do their job or that they won't want that information compromised in the future, which in turn can also have another level of influence. But I think it's a good question. And I would also take a moment to talk about the foreign funding issue. I think -- you know, I don't want to be prescriptive here in terms of what should or shouldn't be in any kind of legislation about limits to foreign funding. I think that needs careful study. It's a very sensitive topic, but I think it is reasonable to start thinking about that in terms of limiting political activity. That might also have some limits to religious activity, because it's very difficult to separate these things out. I don't see those -- that as necessarily a problem. I think that there could be a reasonable way of writing that kind of legislation to make that acceptable to Canada and Canadians, but it is a thing that we -- it's something that we need to consider as we talk about that.

Volume 32 (November 28, 2022), page 137 32-137-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Quelqu'un d'autre? Christian? Ah, oui.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

Christian ---

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Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Christian, please.

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

So it's probably helpful to differentiate between risk and threat; right? So everything's a risk in one way or another. But a threat is capability and intent, and so I think we always need to ask then, if we have actors who are providing funding, what is their capability in terms of actually influencing democratic institutions, whatever it might be, and what is their intent. And if that intent is nefarious, if the intent is to support illegality, criminality, if there's an antidemocratic intent, I think that would be an important sort of element of distinction. And so that seems to be driving, for instance, these foreign agent registries that there's a particular concern that certain state entities have fundamental hostile intent and have the capability to follow through on that intent, and so you have to manage the risk very differently than, for instance, some donor, whoever who's just giving money because he's -- she or he or they sympathize with a particular cause.

Volume 32 (November 28, 2022), page 138 32-138-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Christian. Patrick Leblond ici. Maintenant, l’intention est un enjeu majeur, mais je vais poser la question : comment on détermine l’intention? Est-ce qu’on demande tout simplement quelles sont les intentions des gens? Est-ce qu’on détermine soi-même est-ce qu’il y a une agence ou quelqu’un qui dit « ah! vous avez une intention… une bonne intention ou une mauvaise intention »? Comment on peut déterminer à l’avance l’intention si justement on dit « ben, c’est seulement dans le cas où il y a une menace »? So I don't know, how do you decide on intent and who is responsible, because I guess there is a danger that it could be abused. Someone could say, "Oh, no, you have bad intentions, and therefore, you know, we're not letting you get that foreign funding or even do anything." Je vois Michelle Gallant qui peut-être veut répondre.

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Michelle Gallant, Prof. (Law – University of Manitoba)

Yeah, it's not really an answer, but I think this came out of some of the comments that Professor Leuprecht made was this -- the part about identifying the foreign funding is one thing, but one reason I think that Canada has some issues on the international stage, even though it hasn't been labelled -- I'm not aware of it being labelled as a money-laundering haven or a terrorist finance haven. I stand to be corrected. But the criteria of both of those is usually financial secrecy is at least one, low tax rates can be one, but also, pronouncedly very strong secrecy rules. So I guess I wonder, like I said, I'm not that sure, I haven't sort of policed or looked into how strong kind of Canadian protection of the secrecy of transactions that cross the border actually how that stands up along, say, you know, different countries which sort of have been labelled sort of I guess as secrecy havens. Some parts in the south, some parts in the very centre of the United States, some places in the middle of Europe, like I said, I wasn't aware that we were, but if we are, simply in terms of detecting that kind of foreign funding, the suggestion would be we actually have to enhance disclosure in some way, shape or form, so to move up the transparency international, you know, index.

Volume 32 (November 28, 2022), page 139 32-139-07

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Michelle. Christian, would you -- Patrick Leblond. Christian, would you like to say something about intent and how -- and who could be -- decide this and how it would play in terms of it focussing more on threats than risks?

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

I'll try to be brief. Look, intelligence is our first line of defence, and so this is why intelligence agencies are subject to different threshold, evidentiary threshold regime, for instance, than criminal intelligence. Now let's look at how well we're actually doing when it comes to, for instance, figuring out intent in terms of financial intelligence. So 2019 and 2020, FINTRAC had 31-and-a- half million individuals reports submitted to it. Now the entire United States had 21-and-a-half million. The United Kingdom had 500,000. So that's 12-and-a-half times more reports in Canada as compared to the others. That's 96 percent -- 96 times more reports compared to the UK. So that's an exceptional defensive regime that provides very high volume, very low- quality outputs. In fact, in 2019/2020, FINTRAC made only 2,057 unique disclosures to law enforcement, and most of those disclosures were not particularly useful because they didn't, for instance, draw a broader network in terms of threats and so forth. So we need to actually have a much more robust posture for intelligence agencies to actually be able on the one hand collect the information that they need to discern intent, and then to be able to action that type of intelligence. And when it comes to FINTRAC, for instance, if you read the chapter on FINTRAC, in the Cullen Commission report, it is very clear that FINTRAC does not perform. Why does it not perform? Because it is a complete outlier in terms of financial intelligence agencies among western democratic allies. So this just sort of as an example that we can have all the conversations about legal particularities that we like. If we have agencies that cannot perform for the purpose of the security, prosperity and democracy of Canada, then all this is probably nugatory.

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Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Christian. Jessica?

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Jessica Davis, President (Insight Threat Intelligence)

Yes, I just want to come in a bit on the Cullen Commission information that Christian Leuprecht is presenting. So in my reading of the Cullen Commission, I found a number of factual errors and a number of errors of interpretation, so I think we should be cautious in citing that too closely and being too -- using that information too carefully here, because, you know, when we talk about 2,057 unique disclosures, that doesn't actually tell us anything, because there can be hundreds, if not thousands of individual transaction reports in each one of those disclosures. We don't know how many of the 30 million reports were actually disclosed to law enforcement or intelligence services in those reports. So there's some issues of interpretation around that. And I would also take issue with the idea that all of this FINTRAC intelligence is not useful. Law enforcement and security services have repeatedly told FINTRAC the opposite. In their annual report they share that information. I worked at FINTRAC. I worked in the Canadian Security Intelligence Service. I reviewed a number of FINTRAC disclosures, so they vary in terms of their usefulness, but they are not universally not useful. And I just want to come in on financial intelligence and the issue of intent. The problem is, when we're talking about financial intelligence, we're talking about financial transactions. They don't tell us anything about intent. It's literally just an information, a record of who's sending money to whom. You need an all-source intelligence picture to get that intent. But I also think that when we're looking at foreign donations, there is an implied intent behind that. It's to support the organization, political activity or individual there. So it kind of makes a whole argument about whether it's threat or risk moot.

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Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Patrick Leblond. Thank you ---

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Christian Leuprecht, Prof. (Political Science – Royal Military College)

I just do have to -- if I may reply ---

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Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Christian, yes.

Volume 32 (November 28, 2022), page 142 32-142-21

Christian Leuprecht, Prof. (Political Science – Royal Military College)

--- to that very, very briefly, that what Ms. Davis outlines here is precisely the problem when it comes to effectiveness of government agencies; that there is insufficient transparency for outsiders to measure whether these agencies are actually effective, and what governments do with their own agencies, they will always say about each other that they’re all effective. I’ve yet to find an RCMP report, for instance, that has ever said about any RCMP aspect that the RCMP is not effective at something that it does. So what this means is the state controls the narrative on how effective its own institutions actually are, and that’s why inquiries such as this one are so important because they’re some of the very few opportunities to actually shed light and provide some transparency on what actually happens. And I think it is -- while there may be some factual issues with the Cullen Commission’s report, I think it very dangerous to call into question the overall conclusions that the Cullen Commission draws because it is the only measure of objective independent sort of assessment of the entire regime in Canada, and to what extent it actually or does not serve the public purpose, and I think the Cullen Commission’s conclusions on that are irrefutable.

Volume 32 (November 28, 2022), page 142 32-142-22

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Christian. If anyone else would like to take on this issue of intent or not? Okay, Jessica.

Volume 32 (November 28, 2022), page 143 32-143-16

Jessica Davis, President (Insight Threat Intelligence)

I will come back on the issue of effectiveness and usefulness, because Professor Leuprecht did move the bar on that. So we were initially talking about usefulness of the FINTRAC disclosures, and then you talked about the usefulness of the -- or the effectiveness of the regime. I would agree that the regime has plenty of room for improvement. The regime, as a whole, is largely ineffective, in terms of the measurements we would normally associate with that, things like prosecutions of money laundering and terrorist financing offences. But that doesn’t mean that FINTRAC disclosures are not useful.

Volume 32 (November 28, 2022), page 143 32-143-20

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Okay, thank you very much, Jessica. Patrick Leblond. Let’s bring it back to foreign funding, which in a way is what I would like us to focus for now, and there are other issues. But in terms of the risks and the intent, and therefore the question of whether, you know, there should be disclosures, registration, as mentioned by Michelle Gallant, and I guess putting it in terms of -- that she presented it in terms of appropriateness; and is it necessary and when is it necessary? And, you know, I’m going to use other examples. We know, for instance, when it comes to foreign dark investment; you know, there’s the Investment Canada Act and that has been changed over time; the notion of national security was incorporated, and a lot of the focus has been on state-owned enterprises, for instance, that do invest. So I’m going to try to draw this parallel in terms of, I think, you know, Jessica Davis mentioned, well, foreign funding says something about intent. But it only says about that you support something; it doesn’t say in what way, for what purpose; you just support it. Should -- would it make sense -- and this is obviously open to all the panellists -- to draw categories? Say that state funding, for instance, from any state, is illegal, or at least -- you know, and then, obviously, there is the issue of well -- the state could say, “Well, we’re going to fund some private organization that is then going to fund something.” So like we would then have to go back to the financial chain. Is there a way or is there a logic to kind of having categories and saying, “Well, if it’s individuals, it’s okay; if it’s corporations, well, then that goes in another category; if it’s states, it goes, you know, like, no, no states,” for instance? In terms of maybe requiring the kinds of disclosures -- and then who discloses? Is it the party that seeks funding or is it the party that brings in the funding? Where does this disclosure take? Donc, je ne sais pas si quelqu’un aimerait peut- être discuter de cet enjeu de comment on peut justement approcher cette question de transparence ultimement. Michelle Gallant?

Volume 32 (November 28, 2022), page 144 32-144-04

Michelle Gallant, Prof. (Law – University of Manitoba)

Sure. I would say that generally that there’s certainly been a lot of work here in Canada, and sort of it comes -- it’s this global regime, both in a sort of a criminal context and a terrorist funding intent, but also in a tax context; two separate global regimes but they’re both about increasing transparency. And it’s simply -- it’s not simply about but it’s largely about crossing borders. So the tax evasion or avoidance to which my colleague referred, a lot of that activity is because it’s enabled by a border, so even the CRA can go as far as the border, but they can’t look beyond; then they’ve got to start asking questions. But there’s been a lot of work, I think, and it has a long way to go in terms of transparency. So one example would be it’s been -- I don’t know how many years they’ve been asking us to create a corporate registry of beneficial ownership, and it’s simply a place that, you know, you find a corporation and you know who actually benefits from it, right? It's been forever, and we’re finally -- BC’s moving, so a lot of places. So that general work, I think, is happening but as I said, it’s been very slow. But related to that, and maybe -- I think somebody else can probably answer this because the transparency piece is from the top down. I usually sort of work from the bottom up. So if I were looking at -- I would start with proliferation. So I would know that, say, there was a nuclear facility and money was destined for proliferation, then I would look up from there to the regimes that governed that allowed the transparency, or why didn’t we see this. But one question I have in terms of that, is I can’t get my head around; what is it about this particular -- what was going on in Ottawa in January and February that would have triggered a financial response? So, you know, when I think of financial reporting, I think of suspicious transactions reporting, so you know, $12,000 deposit from somebody who has you know, no resources; it might trigger a suspicious transaction report. But I guess I wonder generally, so in terms of -- if we had transparency, what is it about what was happening, as I said, in January and February and sort of in Ottawa but also across the country that would have triggered some financial knowledge? Like I say, that’s ---

Volume 32 (November 28, 2022), page 145 32-145-18

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle. Patrick Leblond. So if I can maybe go further, Michelle? Sorry; does it make sense to say -- well, if I understand, like, even if we had had information on -- I guess we -- whether -- on these transactions, would it have changed anything, right? In the sense, I guess -- and then this, as it was raised, right, by if those crowdfunding platforms had, you know, been registered and they had collected information, would it have changed anything? So Jessica?

Volume 32 (November 28, 2022), page 147 32-147-04

Jessica Davis, President (Insight Threat Intelligence)

Yeah, I just want to say that FINTRAC was in a position to collect a lot of that information. When those transactions hit the Canadian side of the transaction, anything over 10 -- $10,000 or more would have been reported to FINTRAC. The gap is in the suspicious transaction reports, although institutions can absolutely file that as well. And I -- you know, looking at this whole convoy finance issue, I think I’ve made no secret that I’m not a particular fan of how things went in Ottawa, being a resident here, but I see -- I don’t see any way that enhancing these regulations in this way would have provided the government, or FINTRAC or law enforcement or security agencies, with any additional information that would have been particularly useful to countering the protest.

Volume 32 (November 28, 2022), page 147 32-147-15

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Jessica. Patrick Leblond. Anyone else who would like to add? Because just ---

Volume 32 (November 28, 2022), page 148 32-148-01

Michelle Gallant, Prof. (Law – University of Manitoba)

Just, yeah, I think it’s the point ---

Volume 32 (November 28, 2022), page 148 32-148-05

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Michelle Gallant.

Volume 32 (November 28, 2022), page 148 32-148-07

Michelle Gallant, Prof. (Law – University of Manitoba)

Sorry. I think it’s the point that Professor Cumyn -- Michelle Cumyn made about that even if you regulate the crowdfunding platforms is one thing, but as I understand it, there may -- if you have -- if I put a sign on the internet that says, “Send me money,” and it’s got my bank accounts, that that -- it’s regulated by the financial institution; it’s an exercise in crowdfunding, but it doesn’t touch any kind of crowdfunding. I think that’s the point?

Volume 32 (November 28, 2022), page 148 32-148-08

Michelle Cumyn, Prof. (Droit – Université Laval)

Yes, and I think you made that point as well.

Volume 32 (November 28, 2022), page 148 32-148-16

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Michelle Cumyn, yes?

Volume 32 (November 28, 2022), page 148 32-148-18

Michelle Cumyn, Prof. (Droit – Université Laval)

Oh, sorry. Michelle Cumyn, yes, that’s right. It is possible to have -- to launch a crowdfunding campaign without using a crowdfunding platform. All you need to do is create a page on your website for people to give donations, and in that case, while you’re using a money services provider -- is that what they’re called in English; a money services provider, and therefore that would therefore be reported to FINTRAC. Is that correct?

Volume 32 (November 28, 2022), page 148 32-148-19

Michelle Gallant, Prof. (Law – University of Manitoba)

Yes.

Volume 32 (November 28, 2022), page 148 32-148-28

Michelle Cumyn, Prof. (Droit – Université Laval)

So I don’t understand what the added value is of also getting reporting from the crowdfunding platforms themselves.

Volume 32 (November 28, 2022), page 149 32-149-01

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle Cumyn. Patrick Leblond here. Is it fair to say, at least from my perspective, going back to the -- what happened in Ottawa last winter, that in a way the money issue kind of came in because the occupation, if we want to call it that, or the convoy lasted for much longer than, you know, I guess everyone expected or hoped, and then it was seen as a way to put pressure on those who, you know, in a way overstayed their welcome. So originally, it seems, and many of you have talked about this, right, and I think Michelle Gallant and Michelle Cumyn made it quite clear, that while, you know, funding itself, funding is good for a democracy in a way; right? Something, a protest, is something that we should allow and potentially even encourage, right, that people have a right to demonstrate, they have a right to get together and say what they like and don't like. It seems that while it's one kind of this turn, then the money parts was seen as a way, "Well, if we cut the funding then they won't be able to do what they want." I don't know if -- like it seems that we're talking about two things here, and when is it that, you know, we slip into the other parts, and where -- and would the registration, the disclosures, the transparency change anything to that? Like ultimately, was it just to say, "Okay. Now, this is no longer just a protest", right, "it's an occupation. We need to get -- we've used", let's say, "whatever means we couldn't do it, and we think that if we cut the funding to these people and it's going to prevent new people from coming because we're going to threaten them", I have a question about that later, but would any of these disclosures, transparencies change that? I don't know if I'm making myself clear, but it seems that there are two things. One is kind of what happens before the money kind of gets there; right? Like in a way when we're talking about terrorism financing, we don't want them to get the money even before, we want the money to -- we want to be able to track it so that we can prevent some attack. But in this case, would it have changed anything? Jessica, you're nodding. Maybe...

Volume 32 (November 28, 2022), page 149 32-149-04

Jessica Davis, President (Insight Threat Intelligence)

Yeah, so I'm trying to sort of pick out the pieces of your question there.

Volume 32 (November 28, 2022), page 150 32-150-15

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Yeah.

Volume 32 (November 28, 2022), page 150 32-150-17

Jessica Davis, President (Insight Threat Intelligence)

So I think that there is two things, and I'll use a framework for this. So I see the way that the government sought to counter the financing of the protests and the occupation in two different ways. One was organisational. So by targeting the crowdfunding campaigns, which were drawing in those large sums of money, the foreign funding piece largely came from those crowdfunding campaigns, they were seeking to address that organisational piece because it was -- the movement piece I think is a better way to frame that. And the concern for Canadians really came from that movement level funding that was happening, from people who were identifying as being outside of Canada. And I use that term -- that language very specifically because there was no identity verification being done on who was actually donating and where they were located, it was just what they were saying, so I think we need to be quite careful about that. So that was the first piece. The operational funding is what I would consider to be on-the-ground funding, and that's where we get into questions about the -- sort of the effectiveness of the measures. To my mind, telling people that you're going to freeze their bank accounts unless you leave Ottawa could facilitate a peaceful conclusion to a situation, and it indicates a level of seriousness on the part of the government. I'm leaving aside all questions about proportionality and whatnot there. And I think that that's quite a useful way to think about it. The thing that bothers me, though, about what I've heard from the Commission so far is the Government's assertions about its effectiveness with no evidence. I've heard repeatedly from Government officials saying that, you know, in public statements and at this Commission that these measures were effective, but we haven't seen any evidence about whether or not, you know, why were they effective. Whose money was frozen that really spurred people to leave Ottawa? The process tracing of that activity. And I think that's what concerns me.

Volume 32 (November 28, 2022), page 150 32-150-18

Michelle Cumyn, Prof. (Droit – Université Laval)

Je voudrais peut-être…

Volume 32 (November 28, 2022), page 151 32-151-26

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Oui, Michelle Cumyn.

Volume 32 (November 28, 2022), page 151 32-151-27

Michelle Cumyn, Prof. (Droit – Université Laval)

Michelle Cumyn. Je voudrais peut-être juste ajouter quelque chose aussi. Pour moi, le moment où tout ça est devenu vraiment illégitime, c’est lorsqu’il y a des actes criminels qui ont commencé à être commis par les manifestants, et une des mesures qui a été prise, je ne sais pas si elle a été efficace, mais je le soulève quand même, je le souligne, c’est l’ordonnance de blocage sur le fondement de l’article 490.8 du Code criminel qui permet, donc, de bloquer ou de geler des fonds si on croit que ces fonds vont être employés pour commettre une infraction criminelle grave. Il me semble que ça, c’est un exemple d’une mesure qui semble tout de même efficace, mais, en tout cas, c’est pour moi le moment où toute cette histoire est devenue vraiment illégitime du point de vue sociofinancement, c’est lorsqu’on a vu que ces fonds-là allaient être utilisés pour commettre des actes criminels. Voilà. Merci.

Volume 32 (November 28, 2022), page 151 32-151-28

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup, Michelle. Gerard, would you -- I have a question. Patrick Leblond. I have a question for Gerard, and this -- you talked about notice in the, you know, procedural fairness. You know, that normally before someone's assets get seized or frozen they should receive notice. And it was mentioned by the others that, and this is what happened, that in a way it's like, okay, once the Emergencies Act was invoked, the Regulations came in, and it was like "Okay. Now, if you don't leave Ottawa, or if you come to Ottawa, you risk having your financial assets, your bank account frozen and all that." Would that be considered as notice in terms of procedural fairness? Like in a way, you are warned. I just wonder what your opinion on that.

Volume 32 (November 28, 2022), page 152 32-152-17

Gerard Kennedy, Prof. (Law – University of Manitoba)

Yeah. No, that's really interesting, and you could definitely make an argument that for everyone who is coming, it is notice. For people who are there, it kind of is all right, it's a dispersal order that's not a dispersal order, so to speak. So it's kind of stretching the definition, I think, of notice. And it still doesn't really get around to determine whose assets get frozen. That remains a little bit of an uncertainty. And so that is where I think from a procedural fairness perspective it gets a little more complicated, unless you just view this as a quasi-legislative action and then that's notice enough.

Volume 32 (November 28, 2022), page 153 32-153-04

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Patrick Leblond. Oh, Christian.

Volume 32 (November 28, 2022), page 153 32-153-16

Christian Leuprecht, Prof. (Political Science – Royal Military College)

Christian Lepreucht.

Volume 32 (November 28, 2022), page 153 32-153-18

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Please.

Volume 32 (November 28, 2022), page 153 32-153-19

Christian Leuprecht, Prof. (Political Science – Royal Military College)

So I think this really gets at the heart of sort of the challenge, that moving beyond the invocation of the Act as simply a means to an end and it somehow had the effect, the strategic effect that the public or the Government was looking for. And I think -- so these measures of notice then get us to, I think, four other sort of thresholds, which is was it proportional, was it necessary, was it reasonable, and was it sort of a -- and the efficacy, so efficacious, efficient? And so what does the sequencing look like in order to be able to then have on your matrix being able to check these off? And so I think the financial piece really came as a way to substitute for the relatively ineffectiveness of the initial law enforcement response also on the financial side because these financial investigations are some of the most complex investigations that you can possibly lead on a criminal enforcement, criminal intelligence side and were simply not postured with the people that can actually do these investigations. So we're having I think the conversation that we're having today as a way that the Government substituted for the fact that we simply on the enforcement side didn't have the appropriate capacities and competencies if we had been able to leverage these the way other countries, Australia, the United States, France, Germany leveraged these in protests effectively then we don't have to resort to these extraordinary measures. And so I think they're trying to understand, you know, where -- how do we get ourselves to some benchmark measures as to under what circumstances it might be appropriate to then use the second order effects, such as the financial measures that we're talking about and when these effects are proportional or necessary, reasonable and efficacious, that's I think the heart of the matter.

Volume 32 (November 28, 2022), page 153 32-153-20

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Patrick Leblond. Merci, Christian. I guess this -- ça soulève une question pour moi justement cette notion de modifications. Est-ce que, bon, Gerard, vous avez dit que, bon, pour les gens qui étaient à l’extérieur qui peut-être voulaient revenir passer le weekend à Ottawa pour s’amuser et manifester, OK, ça aurait été suffisant de leur dire, « ben, écoutez, si vous venez, on risque de peut- être geler votre compte bancaire, vos cartes, et cetera »; pour les gens qui étaient déjà là, peut-être pas. Mais est-ce que… parce que, bon, là, après ça, c’est comment on fait pour les identifier et qui on identifie exactement, mais est-ce que, si on avait dit, « bon ben, écoutez… », quelqu’un passe et demande le nom des gens qui sont tous présents dans un périmètre et on dit, « bon ben, voici la liste de toutes ces personnes qui à telle date étaient présentes et si elles sont encore présentes dans 48 heures, on va donner l’ordre aux institutions financières de bloquer, est-ce que ça, ça serait acceptable, disons? (LAUGHTER)

Volume 32 (November 28, 2022), page 154 32-154-25

Gerard Kennedy, Prof. (Law – University of Manitoba)

Je vais reprendre en anglais parce que je veux être le plus précis que possible.

Volume 32 (November 28, 2022), page 155 32-155-17

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Yes.

Volume 32 (November 28, 2022), page 155 32-155-19

Gerard Kennedy, Prof. (Law – University of Manitoba)

Well, is it -- okay, let’s -- in times of crisis, traditional rules of procedural fairness can be modified. We have to accept that not -- we can’t always have gold-plated process going on here. So in that sense, to some extent, a hammer is -- I’m not completely opposed to it. Where I think it becomes more problematic is, how did the banks know who’s accounts to freeze? And if they felt they made a mistake -- like, what sort of disincentive is there on the bank to not do it. How do they know the person didn’t leave? The fact that there wasn’t a centralized authority is a little bit of a problem as well here. And the fact that there was no challenge after the fact is a bit of a problem as well. Like, going only for efficaciousness, this may very well have efficacious and therefore, in some cases, I don’t have an -- I’m not going to argue that it wasn’t efficacious, or that it wasn’t even justified in particular situations. I think the problem arises, as you know -- as you’ve noted -- it was implicit in your question -- that we don’t how the banks made this decision. We don’t know if the banks did it with someone who actually got the message and left, and that’s where the lack of any individual protection is a bit problematic. And look, in an emergency, some of this is going -- someone’s going to fall through the cracks, but the lack of any kind of ability to challenge, the lack of any kind of way to say, “No, I left. I got the message,” and the bank had no incentive to accept it -- like, the person could go into their bank account in Toronto and say, “Look, I’m back,” but the bank wasn’t obliged or had no incentive to take it off, per se, that’s where I think it becomes slightly more problematic from a procedural perspective.

Volume 32 (November 28, 2022), page 155 32-155-20

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Gerard. Michelle Gallant?

Volume 32 (November 28, 2022), page 156 32-156-22

Michelle Gallant, Prof. (Law – University of Manitoba)

I can just add, just in terms of the notice piece, the idea of affecting, sort of, rights -- and I think this has been mentioned before, would be yeah, the financial measures touched the stuff of designated people, but the stuff of designated people, like most of us, a lot of that stuff is jointly owned or owned in common, so in thinking about the -- just in thinking about whether it was proportionate, sure, you jointly own a house -- or you jointly own a bank account and one of those people has nothing to do with -- or maybe they’re even estranged and they still have an account sitting there. So just -- I’m just adding that to sort of the discourse on the lack of any kind of sense of -- not only of notice but of any -- anything.

Volume 32 (November 28, 2022), page 156 32-156-24

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Michelle. Jessica?

Volume 32 (November 28, 2022), page 157 32-157-09

Jessica Davis, President (Insight Threat Intelligence)

Yes, I just want to come in on this question about how banks, if they’re not told who the designated people are, very specifically how they identify them, and it comes through social media and media monitoring, so identifying people through that means, and then also through accounts, so if they’re conducting transactions in Ottawa and they’re not normally residents here, withdrawals, purchases, et cetera. So there’s a couple of different ways that that happens, which I think raises some issues in terms of whether or not, outside the context of money laundering and terrorist financing because we are talking outside of that context -- whether that kind of surveillance of the population should be taking place. And then my next issue for us to consider, of course, is, then what happens with that information? When banks have this information that individuals were designated people, or they determined that they were designated people under the measures, they don’t forget that. They remember, and that becomes part of their de-risking process. And banks are risk- averse institutions, so does this continue to impact the ability of these designated people to obtain financial services and financial products? I don’t think that we’ve explored that in any real way. I don’t think that there’s been a lot of information about that, but I think that there’s a real risk and very probable implications for the individuals who were designated.

Volume 32 (November 28, 2022), page 157 32-157-11

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Jessica. Gerard.

Volume 32 (November 28, 2022), page 158 32-158-10

Gerard Kennedy, Prof. (Law – University of Manitoba)

Yeah, Gerard Kennedy. Just to add a little bit on that, I realize we’re outside of the terrorist financing context here, but many of the principles, I think, are analogous in terms of there are situations where you will want to freeze the account because it’s really urgent. But as Professor Gallant noted, there are circumstance where there - - it could be a joint account between someone who’s genuinely engaged in terrorist financing and a completely innocent party, which is why there’s a process to challenge that, which is why I think -- and maybe it couldn’t be exact analogous -- some sort of ability to challenge property seized under the Emergencies Act analogous to under the Terrorist Financing Act -- Money Laundering and Terrorist Financing Act is probably a good idea. And to Jessica’s point, that banks have the duty, ultimately, to do this, banks are not experienced in administrative law in the way that many aspects of the -- agents of the government are, which is why I suggest that the designation should probably be done by a centralized authority. I don’t that affects the legality of what went on in February, or even whether it was necessary, reasonable, and proportionate. It may have been all that thing, but I think it would be better policy to have it done by an entity that’s learned in admin law principles. And yes, there might be some sort of brief period where someone’s bank account is frozen unnecessarily, but I think it would mitigate it, and the incentive for the bank to do nothing is not quite the same as if there’s an emergency regulator that has precisely this purpose.

Volume 32 (November 28, 2022), page 158 32-158-12

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci Gerard. Jessica, if I can go back to what you said, because I think this is an important point in terms of surveillance and what happens after, right, once you’re been designated, either officially by some authority or unofficially by a bank within the context of the regulation or something else, right, and you said that there’s always the potential that banks don’t forget, that they will use this in their risk assessment of customers, either existing ones or potential ones. And I don’t know -- and again, in -- and this is open to everyone, but should there be some kind of process, whether -- you know, obviously, it’s in a crisis situation like the one that we experienced last winter or, if there’s something, in a way, more systematic put in place where people should have some kind of appeal mechanism or transparency where they could look at their risk profile or some -- and I’m not even sure if it’s possible, but because I’m wondering, for instance, what if someone, you know, and we know participates in a protest, and they do so, you know, in -- with good intentions, to go back to intent that Christian was talking about. They take part in a protest. Maybe things get out of hand. They leave. They might get designated just because they were there. And then, all of a sudden, they have, you know, a sort of black mark on -- associated with their names. Do we know if that black mark stays forever? Do it disappear? Does it have an impact? Is there any way of finding out? Is there -- I’m just wondering because you raised an important issue and obviously, then, there can be associations. It's like, “Oh, well, these kinds of people participate in those kinds of activities that -- which potentially could be nefarious for -- to the state or the economy,” or something like that. And so I’m just wondering, is there a danger? And then what remedies or safeguards could -- should -- could we -- should we put in place even if -- to deal with the situation, but then what happens afterwards? You know, I’m thinking people who -- young people who demonstrate and might be arrested and then they have, you know, some kind of record that affects the rest of their lives even though, you know, they might have changed their lives. So in this context, is there something similar and what safeguards could we put in place to prevent abuse or discrimination in terms of the surveillance, and even doing business? So I mean I asked to Jessica but, obviously, this is open to the others as well.

Volume 32 (November 28, 2022), page 159 32-159-11

Jessica Davis, President (Insight Threat Intelligence)

Okay, if I may, I’ll start, and then hopefully there’s plenty of room for others to come in on this. My understanding of bank process is that it’s individual banks that are making those determinations about how much information they’re keeping on their clients for any given time. The remedy is actually on the critiques of our system, which is that banks -- there’s strict privacy regulations around what banks can share with each other. So if an individual were to be banked by one bank, that information could not be shared with another bank, so the individual in question could, you know, in this example, go to another bank and that bank wouldn’t have the information about them having been designated, et cetera. So the remedy is actually in one of the critiques of the system.

Volume 32 (November 28, 2022), page 160 32-160-28

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Can I just maybe, then, go back to -- okay, that’s a very good point, but what if there is a list of designated individuals which is shared across the financial system. So then you lose that privacy, right? Now, you're on a list. You're blacklisted in a way for a particular situation. But is there a risk that then that particular situation then associates you as a risk individual for financial purposes, going forward?

Volume 32 (November 28, 2022), page 161 32-161-15

Jessica Davis, President (Insight Threat Intelligence)

Jessica Davis here. So I think that that’s a question for the banks about how they handle that internal information and whether or not they'll be considering that going forward in their client decisions.

Volume 32 (November 28, 2022), page 161 32-161-23

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Quelqu’un d’autre veut… Patric Leblond. Quelqu’un d’autre veut ajouter quelque chose? Personne?

Volume 32 (November 28, 2022), page 161 32-161-27

Christian Leuprecht, Prof. (Political Science – Royal Military College)

Yeah, I just want to introduced the Australian example here, right? So if you look at the fines that were levelled against Westpac and CommBank, for instance, I mean, these are huge fines, and what that suggests is that the banks aren't actually terribly concerned about the risk that any one individual that’s making hundreds or thousands of potentially quite dubious transactions poses. So the banking culture in Canada may be different, but the Australian example suggests that while I think this is an important point that you raise that affects -- clearly affects -- has potential serious impact on individuals, the Australian example suggests that we should be concerned about quite the opposite on the part of banks.

Volume 32 (November 28, 2022), page 162 32-162-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Christian. I see one hand, so Gerard, please?

Volume 32 (November 28, 2022), page 162 32-162-15

Gerard Kennedy, Prof. (Law – University of Manitoba)

Okay. I actually have a question that I'd like to ask my colleagues who are more substantive subject matter experts in this area for the earlier question of whether we have any questions. Many of the individuals financing the people in February may not have been here, and yet I don’t think they fall within the definition of designated persons whose assets were frozen. So -- and they may have been the people who actually may have been most efficacious to freeze the bank accounts up. And does that affect your opinion about what policy should be, going forward, how proportional things were of that nature?

Volume 32 (November 28, 2022), page 162 32-162-17

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Jessica?

Volume 32 (November 28, 2022), page 163 32-163-02

Jessica Davis, President (Insight Threat Intelligence)

Thank you for that.

Volume 32 (November 28, 2022), page 163 32-163-03

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

You can also respond to Christian. I ---

Volume 32 (November 28, 2022), page 163 32-163-04

Jessica Davis, President (Insight Threat Intelligence)

Yeah, so just on that, I think I'd have to go back to the regulations because I think that there was an interesting provision about financing other protests, but I can't answer that without looking at those again. And then just on the example that Christian Leuprecht brought up, I just want to bring up the idea of profit motive for banks though as well. So you know, Westpac and some of these big organizations that have been fined these huge amounts, there's a significant profit motive for the banks in continuing that financial relationship that does not exist for individuals. So I think that the risk for individuals is far far greater than for those kinds of large entities.

Volume 32 (November 28, 2022), page 163 32-163-06

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Michelle Gallant?

Volume 32 (November 28, 2022), page 163 32-163-20

Michelle Gallant, Prof. (Law – University of Manitoba)

I would just say as it's always difficult, given jurisdiction, to attach something. So it's the same reason again in the opening presentation, he talked about taxation. The reason you put your assets outside of Canada is a jurisdiction concern, right? It's more difficult to tax them. I'm not saying it's a crime, but it's more difficult when anything is offshore. It doesn’t matter what it is, an asset, relation to tax, or anything else. It's much more difficult for the Canadian state to do anything against that, particularly if you're not a Canadian. So if you had somebody -- yeah, so anything, sort of any resource, the only place you can catch is you can catch it at the border, but if it involves sort of a donator in Australia or in you know, Nigeria, or United States, the reach of Canadian laws obviously doesn’t cross that border. Now, I would say, there are relationships amongst banks, so Canada has never done this, but the U.S. has certainly seized -- this little thing, it's just called a correspondent accounts, but basically what they have done is, if you don’t follow what we want you to do, we will seize anything that’s remotely related to your bank here, so say the Bank of Canada has what's called a correspondent account in New York. But as far as I know, we've never done that, but that whole question about jurisdiction is a difficult one. It's an absolutely difficult one.

Volume 32 (November 28, 2022), page 163 32-163-22

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle, Michelle Cumyn. We're going to take a -- on va faire la pause, alors je ne sais pas si, Michelle, vous vouliez ajouter quelque chose?

Volume 32 (November 28, 2022), page 164 32-164-19

Michelle Cumyn, Prof. (Droit – Université Laval)

Non, c’est très bien. Merci.

Volume 32 (November 28, 2022), page 164 32-164-22

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Ça va?

Volume 32 (November 28, 2022), page 164 32-164-24

Michelle Cumyn, Prof. (Droit – Université Laval)

Oui.

Volume 32 (November 28, 2022), page 164 32-164-25

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

OK. Alors, je crois qu’on va faire la pause maintenant d’une demi-heure et puis on reprend à 16 h 30. So ---

Volume 32 (November 28, 2022), page 164 32-164-26

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Alors, nous sommes de retour. Patrick Leblond. Voilà, Christian, il est là. Donc, nous avons quelques petites questions et ensuite une question… en fait, deux questions d’ordre plus d’importance. La première, et c’est peut-être une… je pense c’est une question probablement pour Jessica Davis. Dans un contexte de crise lorsque justement… une des questions qui était posée, c’est les délais, par exemple entre le moment, par exemple, où peut-être une transaction est identifiée et ensuite l’information est remise ou transmise à CANAFE et ensuite elle était analysée, est-ce que y’a… ces délais-là sont importants ou ça se fait rapidement? Jessica, do you know?

Volume 32 (November 28, 2022), page 165 32-165-08

Jessica Davis, President (Insight Threat Intelligence)

Oui. Généralement, pendant une crise, je dirais que les opérations financières sont soumises à CANAFE rapidement, alors, généralement, je dirais que ça se rend dans les opérations douteuses, en général, 24 heures ou moins.

Volume 32 (November 28, 2022), page 165 32-165-22

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Et pour l’analyse ensuite, avant de peut-être dire, OK, c’est…

Volume 32 (November 28, 2022), page 165 32-165-26

Jessica Davis, President (Insight Threat Intelligence)

Oui, c’est…

Volume 32 (November 28, 2022), page 165 32-165-28

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

…is that fashionable?

Volume 32 (November 28, 2022), page 166 32-166-01

Jessica Davis, President (Insight Threat Intelligence)

Oui, c’est…

Volume 32 (November 28, 2022), page 166 32-166-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Excuse-moi, le terme en…

Volume 32 (November 28, 2022), page 166 32-166-03

Jessica Davis, President (Insight Threat Intelligence)

Même chose. Certainement, avec… s’il n’y a pas beaucoup d’opérations financières, cela ne prend pas beaucoup de temps pour faire l’analyse et déterminer si ça peut être donné à… si c’est sous autre agence. Alors, je dirais que oui, c’est rapide encore à CANAFE, ça peut prendre quelques heures, quelques jours dépendant des circonstances.

Volume 32 (November 28, 2022), page 166 32-166-04

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci beaucoup.

Volume 32 (November 28, 2022), page 166 32-166-10

Jessica Davis, President (Insight Threat Intelligence)

Dans une situation urgente, mais…

Volume 32 (November 28, 2022), page 166 32-166-11

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Oui, oui.

Volume 32 (November 28, 2022), page 166 32-166-13

Jessica Davis, President (Insight Threat Intelligence)

…c’est aussi une question à poser à CANAFE.

Volume 32 (November 28, 2022), page 166 32-166-14

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Oui. Bien sûr, mais on se demandait. OK. Donc, effectivement, des délais très courts. Merci, Jessica. In terms of the second point that we had some discussions, one thing that was mentioned -- and you know, we talked about a lot of the potential longer-term unintended consequences for people who might be designated -- one thing that was mentioned is the -- not only in terms of the banks, but what would happen, let's say, if someone's bank accounts or money, assets, were seized or frozen and then they missed payments on their mortgage or on the couch that they bought or something, and then obviously, their credit score was affected? Again, when we think about proportionality, is -- you know, should these things be taken into account the longer- term effect because then is there any regrets? For instance, say, "Hey, yeah, I missed my payment because I didn't have access to my bank account because someone froze it because I, you know, went to a protest, or I gave money to people who went to a protest." So I'm curious to hear whether, you know, whether such unintended consequences, potential unintended consequences should be considered in the kind of proportionality tests when actually implementing or putting in place these kinds of measures. So I'm putting it open to everyone. So Michelle Gallant?

Volume 32 (November 28, 2022), page 166 32-166-16

Michelle Gallant, Prof. (Law – University of Manitoba)

Sure. I'm not sure I would use the language of "unintended." But in certainly in thinking about the -- ruminating on proportionality, it would have been known -- so when I referred to the privacy -- or at least when I referred to the Privacy Commissioner has a report, it simply talks about sort of stagnant financial information, so information -- she's talking in the context of terrorist finances, suspicious transactions, so there's a little cloud on someone, and it's been investigated and dismissed. But the point she makes is you need to -- there needs to be a mechanism for clearly purging that. So in the same, we don't have mechanisms. You know, somebody else wrote about it, it's something called the right to be forgotten, right, the right to have information actually purged and destroyed. But just in response to what you said, I don't think by any stretch anyone -- it was -- I'm not sure what intention means, but it would have been known because it's always been, like, it's a piece of -- it's known that once something descends, right, as I said in her context talking about once privacy and some information, yeah, it's there; right? So it would have been known that that information was there. So this idea about was it temporary or not, at the time, that piece, that something might potentially linger would have been a piece that ought to, I think, have gone into, as you say, the analysis of whether this is proportionate or not. It's not temporary if you're, you know, for some whose relationships or financial matters would have been disrupted. Maybe not permanently, but as you say, even -- I mean, the severity would be even something like, you know, our bank account just closed and we live on the margins, and, you know, we've -- you know, the consequences there. But in this case, yeah, if you have one bank account and it goes beyond, then you're really in difficulty so.

Volume 32 (November 28, 2022), page 167 32-167-12

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Jessica?

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Jessica Davis, President (Insight Threat Intelligence)

Yes, I think that you're right to consider those things and some of the consequences of the asset freezing. The issue of there being a lack of redress I think is also well worth considering. I mean, you know, how do you go to a credit agency and fix that? The only thing that I will say that -- on this is that the measures were in place for a short period of time. So I think that reduces some of those potential consequences because five days is -- in some cases might make a difference for some people, but it's -- you know, it's not a full pay cycle. It's not a full month. So I think that there's some considerations there as well.

Volume 32 (November 28, 2022), page 168 32-168-18

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Gerard?

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Gerard Kennedy, Prof. (Law – University of Manitoba)

And just to build on that, I think that may be an argument that the measures were proportionate on the facts of what occurred in February, while also recognizing that insofar as this Commission has a policy rule and is recommending how to make sure that these more profound consequences are mitigated in the future, depending on whether or not it believes the threshold for invoking the Act was met, there are recommendations that could be made to mitigate those concerns.

Volume 32 (November 28, 2022), page 169 32-169-02

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci. Patrick Leblond. J'aimerais retourner a l'enjeu du financement étranger, mais dans un contexte de -- so now -- well, during the protest and then afterwards, crowdfunding platforms have to be registered or have to register with FINTRAC. Before that, also, you know, crypto exchanges, wallets operating in Canada have to do so. But I guess one of the questions, and I'd like to hear the panelists, is the -- and Jessica mentioned, you know, obviously, the compliance burden that it puts on an entity like FINTRAC, but even beyond that, how does -- or how can -- I'm not sure, but if you have foreign entities, you know, and, you know, I assume if there is a crowdfunding platform somewhere in the world, or a crypto exchange, or a crypto wallet service, whatever they call themselves, you don't necessarily know or even care who's your clients; right? Especially if where you're physically located, at least legally, there is no requirement for, you know, know your client's information. You may not know that, oh, this person's from Canada. You may not even know that you have technically now that you have someone who has put money on your platform or donated money to your platform or that are receive money from your platform, that you should be registered. So, first of all, it's very difficult for an entity like FINTRAC to actually scour the world to find out, okay, who's doing business in Canada, who's not? So that's the first thing. The second thing is, even if that were possible, say, "Hey, you're not registered, so now you have to register." And then, you know, after I guess a certain time, you find out that the platform, crowdfunding, crypto, is not registered, then what? What happens? Does FINTRAC say, "Oh, you're not registered. You're not complying. We're going to shut you down." That's not going to happen especially if that platform is not in Canada. They can't really do that. Then can you block a website, like, an actual IP address from this platform and say, "Now Canadians now no longer have access to that"? Is that, you know -- and is that possible, or what is the process for doing that? And then even if you could do that, then what - - isn't there -- in this platform I just say, "Okay, well, now we're blocked here. We'll just create another IP address where people can go and do the same business they were doing before," and then you have to go through this whole process and this kind of cat and mouse. So the big question is, even if want to have this level of registration, disclosure, transparency, compliance, is it even possible, feasible? So I see Michelle who wants to say a lot of things. Michelle Gallant.

Volume 32 (November 28, 2022), page 169 32-169-11

Michelle Gallant, Prof. (Law – University of Manitoba)

Sorry, yeah, I don't think it's possible and I don't think it would be a good idea. So it's possible under a new technologically-driven model, which my colleague referred to earlier. You could have some sort of centralized system wherein Canadians were only allowed by law to use an electronic currency. You could have that. I think that's a very, very bad idea. It means that everything is capable of surveillance, regardless of what -- we put -- placed all the information in a central place, so I think that's bad, not a good idea. I think facilitating exchanges is fine, but that particular model, which has come up recently, is not a great idea at all. And nor would I be -- it's very, very delicate when the state starts blocking websites. So if we put this in the context of China, and you talk about sort of, well, I -- when I'm there, I can't access these websites, what's going on, which to me are quite normal, that's a very, very delicate and a dangerous area. We -- so just -- so whether it's to shut off funding or to shut off, you know, access to information, I mean, there are limits on the things maybe that we should have access to, but distaste or, you know, short of certain real extremes, you know, the state's ability to sort of shut off, to sort of shut off -- and I say that because we've seen that. We've seen that right now in the context of Russia. We've seen websites shut down, which reasonable people, I think, would completely disagree onto whether those websites should have -- they would say that was my source of information and now it's shifted. So I'm just sort of responding to that. I'm really concerned -- I would be very, very concerned about giving the state that kind of authority. Sorry.

Volume 32 (November 28, 2022), page 170 32-170-27

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle. Jessica?

Volume 32 (November 28, 2022), page 171 32-171-28

Jessica Davis, President (Insight Threat Intelligence)

Yeah, so it's a very complicated scenario that you've painted for us, but I think that this points to one of my recommendations, which was that the government and FINTRAC and Department of Finance, as policy centres, should be conducting public consultations on these kinds of things because this is the kind of scenario they should be test driving. You know, how are we reasonably going to enforce these regulations? And then, you know, just a little bit on the client issue, there is increasingly -- crypto exchanges are increasingly regulated and there are know your customer requirements. Not all crypto exchanges are as good at that as others. And there's still, of course, the wallet-to- wallet issue that, you know, unhosted wallets can conduct these transactions across borders and attributing those wallets to any individual is exceptionally difficult unless you have quite good access to the individual's devices or other sources of intelligence. So I think that there's a lot of holes in this regulation, but not a lot of benefits necessarily.

Volume 32 (November 28, 2022), page 172 32-172-02

Michelle Gallant, Prof. (Law – University of Manitoba)

But can I ---

Volume 32 (November 28, 2022), page 172 32-172-20

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Michelle Gallant? Yes.

Volume 32 (November 28, 2022), page 172 32-172-21

Michelle Gallant, Prof. (Law – University of Manitoba)

Sorry, Michelle Gallant, yeah. I just -- Jessica, I think in something you wrote you mentioned at some point in time you talked about these things that are called I think Hawala Networks, or Informal Value Transfer networks. So I'm simply asking you whether your idea is that actually whether you see any value in this in the fact that the state actually, so for these Informal Value Transfer networks are outside of the formal banking system, and a lot of people have issues with them, but I wonder if you see any benefits with that kind of a -- because you mentioned cryptocurrency, so the idea of a decentralised system, you know, the lack of state surveillance? The same -- and I'm just trying to parallel between the Hawala might have been an older version of a deregulator, or the Mexico peso network might have been another. So I'm just wondering if you see any value in those kind of networks that aren't subject to intense regulation?

Volume 32 (November 28, 2022), page 172 32-172-22

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Jessica?

Volume 32 (November 28, 2022), page 173 32-173-13

Michelle Gallant, Prof. (Law – University of Manitoba)

Yes.

Volume 32 (November 28, 2022), page 173 32-173-14

Jessica Davis, President (Insight Threat Intelligence)

Most Hawalas are actually meant to be regulated under anti-money laundering legislation in different countries, they're meant to be money service businesses. A lot of them are not regulated because they don't register or they just operate outside of those regulated channels. The International Anti-Money Laundering Counterterrorism Financing regime has been trying to address this issue for many years. Hawala is an Informal Value Transfer System that's been -- you know, there's a lot of myths around it I think, but it's basically just a way to send money. It's less expensive, it's faster, it has greater access anywhere in the world than most -- banks would aspire to that. The issue, of course, comes in terms of the reluctance to report. Has the tremendous value in terms of moving remittances from the developed world to the developing world. The issue, of course, becomes when illicit actors take advantage of those same benefits to move funds, and that's sort of where the issue is. But you know, in Canada, I'll just conclude by saying Hawalas, they exist. They should almost exclusively be registered as money service businesses, but that's also part of FINTRAC's remit is to figure out who is not registering and get them to register or fine them or refer for criminal compliance.

Volume 32 (November 28, 2022), page 173 32-173-15

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Jessica. Patrick Leblond. And I guess it goes back to this question of to what extent is it feasible, you know, once there is a registration requirement for whatever funding or financial entity for FINTRAC, who is ultimately responsible for ensuring its compliance to actually do so. Because I guess it's very hard to identify something that, you know, you don't really know exists, and no one is kind of out there and say, "Hey, I'm here", and even more so if it's outside of Canada's borders somewhere on the ethernet, or even on the Dark Web for that matter. So -- but I think it's -- it raises an issue in terms of, you know, does it mean that ultimately you need more resources, or even the fact even if you had all the resources in the world it would not even be possible to actually do so. So I guess I just wanted to bring that up because to me it seems an important issue to think about when, you know, if the -- if some -- some people think that the answer is just, "Oh, well, just require them to register and if they don't comply then we're done." It seems that it's as you mentioned, it raises a number of issues, obviously, whether it's privacy, whether it's freedom, access to, you know, to information, or even in terms of efficacy. Oh, Christian, please.

Volume 32 (November 28, 2022), page 174 32-174-10

Christian Leuprecht, Prof. (Political Science – Royal Military College)

It's a really pertinent conversation because if you want to prepare to solve the problems of tomorrow rather than the problems of today, then of course we need to prepare for a world where the banks of today are no longer going to be the central financial institutions that we have today. So we're not going to necessarily have a future next time this happens where we can just go to six banks and ask them to identify sort of the key -- the keys of nefarious -- designate nefarious individuals. But what we can do is, and we live in a world where I think we now have about 20,000 cryptocurrencies, that these have very different standards, and once you get into to Altcoin, for instance, and you have significantly less -- intentionally much less transparency and ability to trace and so forth. So what we can do is set standards with regards to what sort of transparency, for instance, is required for the sort of digital currencies that crowdfunding platforms do -- are subject to sort of under regulation. And to some extent that's already happening in the marketplace because the marketplace is sorting out already cryptocurrencies based on some certain benchmarks and transparency and so forth.

Volume 32 (November 28, 2022), page 175 32-175-07

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Christian. Patrick Leblond. I guess, and this I think will be the last element that we'll talk about. And I -- you know, in a way, as Christian just mentioned, you know, we have to think about this, and I think a lot of discussion has been about, you know, going forward. And one of the questions, and it was already kind of discussed, I think it was Christian in his original presentation. The question of in a way seizing assets or the risk, or the threat of seizing, freezing assets, financial assets, and to what extent it represents -- I think there are two things. One is to what extent it represents a risk to the overall financial system in terms of people's trust in the system, right, and going to also what Michelle Gallant said about in a way the fundamental right of, you know, getting money for causes if we want, right, or to organise protests, you know, in a democracy. And is there a risk that people, as a result of what happened and what could happen in the past, will now -- could feel or will now feel that, A, if I put my money in a, you know, a regular bank account could it be frozen? If I give money to a cause and all of a sudden that cause somehow doesn't quite turn out how we thought it would be because some individuals, not all of them, or some of them, decided to use the money for in a way not things that we had planned for, and all of a sudden, you know, because I gave my bank account is frozen or I have this cloud that, as Michelle mentioned, over my head, so therefore, either I'm not going to give any more money, so that obviously has an impact, that people's ability to collect funding, or I'm going to try to avoid the traditional financial systems? And I think it was Christian who said, "Well, are they going to move in a way to less regulate it darker corners of the financial system?", which obviously have their own consequences in terms of, you know, potentially as consumers losing their money, losing the value of their financial assets and all that. So I'd like -- you know, we have about -- we have ten minutes, or actually, nine minutes. I don't know if we could -- what are your thoughts. In a way in kind of the grand scheme of things is there -- you know, and again, going back to this proportionately element that Michelle Gallant raised, you know, is -- the freezing of assets or the seizing of assets is there a greater -- a risk to the system itself and the trust that people have in the financial system? I don't know who wants -- qui aimerait commencer pour conclure sur le niveau très macro. Michelle Gallant?

Volume 32 (November 28, 2022), page 175 32-175-28

Michelle Gallant, Prof. (Law – University of Manitoba)

Sure. I'm not generally in favour of more law, right, more regulation. I mean prudence, yeah, maybe prudent, targeted regulation, yes. And actually, I would simply just go in terms of like watching and concerning financial activity, there is a balance between the amount of information that any state ought to know, right, and then what to be private, even if that privacy might offend someone. So we usually use the language of "crime" to discern that, and really that's what terrorism financing and those laws do, but it seems to me we're sort of -- to go beyond that to me is quite frightening. And the reason when I mentioned -- that I mentioned sort of in the future our state and many states having the capacity to regulate everything, that is -- there are templates you can see of this ability happening, right, so this ability to actually watch every single financial transaction. Now, we talk about those as though "Oh, the state won't", whatever, but I would be concerned. I would be seriously concerned about moving to a system where everything was in one place that it could be, right, because once it could be, then the next time it we'd be, "Oh, well, maybe we don't like this thing, let's check"; right? "We said we wouldn't unlock the door, but now we have good reason to so we'll break the lock and see what's in there." So seriously concerned about that. And you know, my final comment would be, you know, I have this -- you know, when we think about these things, sort of thinking about the Inquiry and the need to be consistent what keeps resonating with me, is this might not have been, you know, your particular social movement, your particular protest, but the next one might be.

Volume 32 (November 28, 2022), page 177 32-177-20

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle. Gerard?

Volume 32 (November 28, 2022), page 178 32-178-23

Gerard Kennedy, Prof. (Law – University of Manitoba)

I just think that goes back to a point I made earlier, that insofar as individuals’ property rights were limited in this situation. The prerequisites to do so should not be interpreted broadly when there’s genuine ambiguity about that. And I just think this underscores that, because of the reasons is that limiting individual’s rights, even when we understand it’s for a problem that’s really got to be resolved, is going to have unintended negative consequences, and we don’t want to have those unintended negative consequences unless we’re sure they were quasi-intended negative consequences. And I also think this underscores what I said earlier, that it may be best that the bank is not making the decision on whose assets to freeze, because then individuals stop trusting the bank as a bank, and banks may not be the most sympathetic entities in our society, but they play a very key role, and they’re very risk adverse. Like, whenever I teach certain discovery rules, it’s always the bank that has to be told exactly what it’s going to do. It wants a court order, because it’s going to avoid liability at all costs. So having the bank not make the decision is probably, in this exceptional circumstance, where the bank is -- has to freeze your assets, because occasionally we’ll have to, I think it shouldn’t be the entity that’s applying its discretion as to whether or not to do that, because it’s going to avoid liability at all costs.

Volume 32 (November 28, 2022), page 178 32-178-25

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Gerard. Jessica?

Volume 32 (November 28, 2022), page 179 32-179-23

Jessica Davis, President (Insight Threat Intelligence)

Yeah. So I think to address your broader question about whether this could force or encourage people to move away from our formal financial system, I think that the benefits of decentralized finance, including cryptocurrency, are overblown at the moment. There are not sufficient offramps for cryptocurrencies and other forms of decentralized finance to make them viable for operating in a modern economy. That can change, but I’m more of a 30 to 50 years kind of person, not five years kind of person. But that will happen for some people. I think seeing these emergency measures was a bit of an education for Canadians. I don’t think that a lot of Canadians realized that even with judicial authorization, that your account could be frozen or you could have your assets seized. I think that was new information for a lot of people. And that will certainly undermine some people’s trust in the system, probably people who are already distrustful of the situation, which we should be wary of further pushing people to the margins on that. I think that that’s a serious concern. But I definitely agree with Gerard Kennedy on this, that, you know, the measures might have been proportionate, they might have been effective. Those questions are not necessarily for us to determine here. But the problem was really in the application of those measures and deputizing the banks to make those decisions was probably the biggest problem I saw with them.

Volume 32 (November 28, 2022), page 179 32-179-25

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Michelle Cumyn?

Volume 32 (November 28, 2022), page 180 32-180-24

Michelle Cumyn, Prof. (Droit – Université Laval)

Oui. Bien, je suis vraiment d’accord avec tout ce que mes collègues viennent de dire. Je pense que l’anonymat, c’est une manière importante de protéger sa vie privée, et puis si on pense aux origines du sociofinancement, bien, on passait le chapeau puis les gens déposaient quelques pièces dans le chapeau. C’est… malheureusement, on est maintenant dans une situation où toutes les transactions laissent des traces et je pense que, comme les collègues l’ont très bien dit, il y a vraiment un danger à profiter de ça pour essayer de surveiller toutes ces transactions-là parce que les gens vont vouloir trouver d’autres façons justement de rester dans l’anonymat. Alors, je pense que c’est vraiment… c’est ça, je pense que ça, ce point-là, il est important aussi, mais je suis aussi d’accord avec tout ce que les autres ont dit. Merci.

Volume 32 (November 28, 2022), page 180 32-180-26

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Merci, Michelle. Christian, do you have a comment?

Volume 32 (November 28, 2022), page 181 32-181-14

Christian Leuprecht, Prof. (Political Science – Royal Military College)

So, you know, democracy is fragile. And so we need to make sure that we defend democracy. And we’ve seen the increasing use of emergency powers by democratic governments across the world. And so I think on the one hand, we need to make sure we set disincentives for governments to resort to emergency measures simply because they didn’t have the political incentive or motive to update, to ensure that legislation, regulations, or current agencies are probably postured. And then when we do invoke them, we need to build in sort of enough thresholds to make sure that when governments do have to compensate for shortcomings in regular law and posture in the 21st century, that appropriate, I think, thresholds are forced onto government, even under those circumstances. And I think particularly the comments about that this -- the Act can only apply very specifically and with more safeguards I think is critically important, because I think we saw here elements that most Canadians, whether they -- regardless of where they fell with regards to the protestors, were probably not thrilled to see government feeling that it had to resort to extraordinary measures to re-establish the rule of law in this country and what can we do to avoid that, because if we can avoid that, then we don’t need to have conversations about worries about trust in the financial system under emergency measures and so forth.

Volume 32 (November 28, 2022), page 181 32-181-16

Patrick Leblond, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Christian. Alors, c’est… je pense que c’est tout pour aujourd’hui en ce qui nous concerne, cette discussion qui a été très riche, beaucoup d’informations, et j’aimerais remercier nos panélistes : Christian Leuprecht, en ligne de l’Allemagne où il est en ce moment, Michelle Gallant, Michelle Cumyn, Jessica Davis, Gerard Kennedy, merci beaucoup à vous toutes et tous d’avoir été avec nous et de nous avoir fait part, en fait, de vos expériences, vos expertises, vos connaissances. Je pense que c’est… en tout cas, pour moi, ç’a été très utile, j’espère que ça l’est aussi pour le Commissaire et la Commission. Et donc, voilà, merci à vous toutes et tous.

Volume 32 (November 28, 2022), page 182 32-182-13