00:06:14.020authorizing Canadian financial institutions
00:06:17.220to temporarily cease providing financial services where the institution suspects that an account
00:06:25.180is being used to further the illegal blockades and occupations. This order covers both personal
00:06:33.420and corporate accounts. Third, we are directing Canadian financial institutions to review their
00:06:41.500relationships with anyone involved in the illegal blockades and report to the
00:06:47.400RCMP or CSIS. As of today, a bank or other financial service provider will be
00:06:56.080able to immediately freeze or suspend an account without a court order. In doing
00:07:04.360so they will be protected against civil liability for actions taken in good
00:07:11.200faith. Federal government institutions will have a new broad authority to
00:07:17.560share relevant information with banks and other financial service providers to
00:07:23.800ensure that we can all work together to put a stop to the funding of these
00:07:28.840illegal blockades. This is about following the money. This is about
00:07:36.640stopping the financing of these illegal blockades. We are today serving notice.
00:07:44.020If your truck is being used in these illegal blockades, your corporate
00:07:50.780accounts will be frozen. The insurance on your vehicle will be suspended. Send your
00:07:59.840semi-trailers home. The Canadian economy needs them to be doing legitimate work,
00:08:05.960not to be illegally making us all poorer.
00:08:20.780sorry about uh freezing that at a very dramatic moment on christopher freeland there maybe our
00:08:34.480accounts are being frozen who knows it was a long clip but i wanted you to hear the whole thing
00:08:39.060because the government went on in painstaking detail painstaking detail about all the things
00:08:45.380they're doing here. And those measures are allowing banks to freeze accounts without a
00:08:51.220court order, suspending your right to appeal that, to take a bank to court and have that bank have
00:08:58.420any liability rather, getting banks to rat you out to the RCMP if they suspect that you're involved
00:09:05.340in the blockade. And again, we don't know how much involved really involves here. Are we talking
00:09:10.860about anyone who donated or are we talking about the people that are processing donations? We just
00:09:15.280don't know. I want to talk about this with Christine Van Gein, who's the litigation director
00:09:19.580for the Canadian Constitution Foundation, and joins us here live on the program. Christine,
00:09:26.640let's start with the obvious here. I mean, is this a constitutional use of the Emergencies Act?
00:09:34.020Well, I think- Oh, we don't have Christine yet. Just bear with us here for just a moment as we
00:09:38.620get her on. This is the fun we have when we do live programming, everyone. So thanks very much
00:09:45.060for your patience. We'll just get that sorted out and Christine can chime in when we have her up
00:09:49.800and running. But I want to talk about the fundamental question here. And we have her
00:09:55.080now. Thanks for your patience there. So Christine, explain to me, is this constitutional the way this
00:10:00.020is being used? So I think that there are a few problems that I immediately have with this
00:10:05.960invocation of the Emergencies Act. And I'm not the only one. This is sort of raised concern with
00:10:13.160constitutional experts across the political spectrum as it should. The first major concern
00:10:18.920is that the threshold for actually invoking the emergency act may not have been met in this case.
00:10:26.340And while perhaps there is some evidence that the government is relying on that we don't have
00:10:32.180access to, there are really specific things that the act requires in order for it to be invoked.
00:10:38.780The government says that this is a public order emergency, but in order to meet that threshold, there are really specific criteria.
00:10:49.320It includes things like threats to the territorial integrity of our country, things like espionage or sabotage, foreign-influenced activities that are detrimental to Canada's interests.
00:11:04.500And I think that, you know, that's a high bar. I don't think that the government at this point has presented us with the evidence that they have met that threshold. I've read the ordering council. It doesn't provide any more information than really what was said at the press conference yesterday.
00:11:24.320way, and this has a lot of people really concerned.
00:11:27.260We can't normalize the invocation of emergency legislation, which has been something that's
00:11:33.500happened throughout this pandemic, and really it looks like the federal government is invoking
00:11:38.820this legislation as a matter of political convenience.
00:11:43.260One of the other things that the legislation requires is that the existing laws not be
00:11:48.380sufficient in order to deal with whatever the crisis is.
00:11:54.280in my view, the major crisis was the border blockage at Windsor, which was very disruptive
00:12:02.040to trade. It costs Canada's economy billions of dollars to disrupt that major trade route.
00:12:12.740There was, at one of the other border blockades, there were some pretty serious security
00:12:19.820concerns that were raised with what the RCMP uncovered at that blockade. But those blockades
00:12:27.280were all resolved using regular police powers. There was no need to invoke emergency legislation
00:12:35.340to deal with that. And unless there's something the government knows that we all don't know,
00:12:40.760a bunch of noisy trucks on Wellington Street in front of Parliament, while an inconvenience,
00:12:46.580and potentially unlawful, but potentially not, doesn't justify the invocation of the Emergency
00:12:54.800Act, in my opinion, and in the opinion of the Canadian Constitution Foundation.
00:12:59.480Well, you raise an important point there about, you know, the information as we have it. Does the
00:13:05.840government have an obligation to be public about if there is a threat that would put it into that
00:13:12.080category? I know certainly if they were defending it in court, they would have to be transparent
00:13:16.720about that. But do they have to give all of the reasons they think publicly in the legislation,
00:13:22.240in the Order and Council, when they're invoking it? Not necessarily, right? It depends on what
00:13:28.040the nature of the emergency is. So if it's, for example, a really serious terrorist threat,
00:13:36.280there's intelligence that the government may not have an obligation to release because it's
00:13:43.480it's very confidential it could jeopardize sources and methods things like that but
00:13:48.880even if it would even if that were to be challenged if there were to be a challenge
00:13:53.620brought and I think you could challenge this invocation of the emergency act it would be done
00:13:59.180by way of of judicial review so that is a government order it's judicially reviewable
00:14:05.220So if there is very, very confidential and sensitive information upon which the government is basing this decision to invoke the act, there are ways that the courts can deal with that.
00:14:18.740So the person challenging the law would have an amicus appointed who reviews the evidence and participates in the hearing with the judge and with the government in order to review that evidence and make arguments without having that evidence publicly disclosed or without having it disclosed to whoever the applicant is.
00:14:40.300um so this is something obviously we're in talks with lawyers about what our next steps are we
00:14:46.580haven't made any decisions right now but we are we have been in talks with lawyers all day about
00:14:51.960this exact issue and what are what we're what we're going to do and we are seriously contemplating
00:14:56.500uh bringing a judicial review of this the as we heard from justin trudeau yesterday and in the
00:15:03.360clip i i shared just before you joined he's saying that this is charter compliant the charter of
00:15:08.840rights and freedom still applies. And I know in the Emergencies Act itself, which is distinct
00:15:13.620from the War Measures Act, which predates the Charter, it says, yes, all of these measures have
00:15:17.780to be subject to the Charter, but the Charter also has Section 1, where the government can
00:15:22.400override the rights, as we all know, if it provides there is a reasonable limitation,
00:15:27.640demonstrably justified in a free and democratic society, and so on. Does the government saying
00:15:33.520there's an emergency? Is that enough to widen the latitude that Section 1 affords it?
00:15:39.960So one thing that I find funny is I've seen this all over social media is, you know, it's,
00:15:46.340it's, this can't be a violation of the charter because it's subject to the charter. I mean,
00:15:51.680of course, it's subject to the charter, all legislation is subject to the charter. But
00:15:55.240that doesn't mean that the legislation is always being applied in a charter compliant manner.
00:16:00.260And this is something we need to talk about, right? I think that the invocation in particular of the emergency order to potentially freeze and seize assets without court order could, I mean, there's a very strong possibility that that particular part of the ordering council is not compliant with the charter's guarantee to be free from unreasonable search and seizure.
00:16:27.120a seizure without court order is is not necessarily unreasonable but I mean it's the burden will be on
00:16:36.580the government to prove that it's not so I mean there's there's that that just because the
00:16:43.040legislation says it's subject to the charter doesn't mean that the government isn't violating
00:16:47.220the charter in the way the manner in which they're invoking it that's really important and I think
00:16:51.920that that has been lost on a lot of people. On your other point, will the government get
00:16:58.340deference from the courts because they are declaring an emergency? I don't know the answer
00:17:03.840to that. But what I will say is one thing that we have noticed throughout our charter litigation
00:17:09.040during this pandemic is that there has been a lot of deference that the courts have given
00:17:15.700to the government on pandemic measures. But this is not a pandemic measure, right? This is sort of
00:17:23.960pandemic adjacent. And I think that the courts have shown deference on matters of, for example,
00:17:31.320epidemiology, that the judges will say, you know, they will defer to medical experts. But courts are
00:17:40.540quite experienced in dealing with matters of policing. And this is more of a policing measure
00:17:46.820than a science measure. And I think that the government, I think that the courts may
00:17:53.380not show the type of deference in this case that they have shown in other pandemic-related pieces
00:18:01.960of litigation. But we never know when it comes to the courts. That is true. And I think an
00:18:07.760important caution. The financial aspects of this are what I find the most chilling here, just given
00:18:13.680how broadly defined or completely ill-defined they are. Obviously, they're extending and expanding a
00:18:19.880lot of existing measures to include cryptocurrency. We know the convoy organizers have pivoted to
00:18:25.480Bitcoin when all of their other avenues of funding have been cut off or frozen in some form. But this
00:18:31.680idea of giving the banks not just an obligation to start reporting if they suspect someone might
00:18:38.240be involved in this, but also to freeze accounts without a court order. Now, if you give a bank
00:18:43.920that power, I don't know if they're going to use it very broadly because they don't want to
00:18:49.500themselves find that they're not complying with the law. I don't know if banks are known to be
00:18:54.740discreet or judicious about these sorts of things. But to then take away the bank's ability to be
00:19:00.480sued for that, to take away the judicial recourse and legal recourse you could have as a citizen
00:19:05.760here. Do we know how they're going to interpret, the government or the banks, what involved means?
00:19:12.380Does it just extend to someone who maybe donates $50 to the trucker convoy? Or is it only going
00:19:17.780after the big fish that are receiving donations in large six-figure, seven-figure sums?
00:19:23.840Yeah, I actually don't know the answer to that. And I think there is no answer to that,
00:19:30.480right now, I've seen advice from criminal lawyers on this exact issue. I have been emailed by a
00:19:37.800number of people asking if I made a donation, what should I do? And what I would say is,
00:19:44.040don't talk to media if you made a donation and continue to live your life. And the advice I've
00:19:54.340seen from criminal lawyers is consider not making another donation because right now there's a lot
00:20:00.960of attention on that particular issue. But that's the advice that I have seen. I don't know the
00:20:07.520answer to how banks would exercise this because it's pretty novel. Banks are risk averse though,
00:20:18.940right? Yeah, and I mean, we've talked about, you and I have, and I've talked about it in the show
00:20:24.460with other people as well, the government's unrelated attempts to go after internet speech.
00:20:29.600And the theory that I've had with government regulation of social media companies is that for
00:20:33.780social media companies, it's not worth the hassle. So they'll just say, yeah, we'll delete this,
00:20:38.040we'll delete this, we'll delete this, because it's easier than getting involved with the bureaucracy
00:20:42.500and trying to go back and forth on this particular post or that particular post.
00:20:47.980I think the same thing applies here to the banks. If there is anything convoy related, it may just be easier for the banks to say, OK, this is gone. This is gone. This is gone. I mean, when GoFundMe went after the fundraising campaign for the convoy, they zapped a whole bunch of others that were not even really supporting the convoy.
00:21:06.520One of them was an independent journalist whose work I don't happen to agree with ideologically, but they went after her fundraising account to fund her coverage of it just because it was in that space.
00:21:18.580So I do fear that there would be a lot of a very overbroad approach that they take to this.
00:21:24.720And the fact that you as a lawyer who's read through this, who's seen the press conference, doesn't have the answer to that, I think is very concerning.
00:21:31.260Because how is, you know, Gladys, who wants to donate $10, how is she going to have the answer?
00:21:35.440Well, none of us have the answer right now. And I think on its face, what was said in the press conference yesterday sounds like an invitation for banks to arbitrarily seize private property for people who are suspected of involvement with the protests without any built in right to apply for reconsideration, whether intentional or inadvertent.
00:21:57.620So I think there are a lot of things that can go really badly wrong there and that is potentially unconstitutional. We have a right under a charter under Section 8 to be free from unreasonable search and seizure. And this is potentially a violation of that.
00:22:12.480So there are really two big problems here. The first is that I don't think that the Emergency
00:22:18.480Act has been properly invoked. I think that this is a matter of political convenience for the
00:22:23.020Prime Minister to, I mean, frankly, I think that this is an attempt at political cover, right?
00:22:34.760Like this is an attempt for the Prime Minister to appear like he's doing something about the
00:22:39.800trucks, which are upsetting a lot of people in Ottawa. And I think that the government wanted to
00:22:46.080ease some pandemic restrictions. For example, they eased some restrictions today related to
00:22:51.300re-entry to the country. And they want to look tough on the trucks before they make an announcement
00:22:59.500like that so that they are not looking as if they're capitulating. That's not a national
00:23:03.800emergency. Like the prime minister's political crisis is not a national crisis for the
00:23:09.800yeah i i think that's that's incredibly well said and never been invoked no i i appreciate that i'm
00:23:19.740sorry you uh froze for just a moment there but i i will ask you just finally here and i know you
00:23:23.980mentioned christine you're still consulting with lawyers on this and uh the the actions you at the
00:23:28.380ccf might take and others might take still stand to be seen but as far as the oversight is there
00:23:34.280an ability to have this challenged in a very immediate basis through an injunction? Or is
00:23:40.080this the kind of thing that is going into a very longer battle that could outlast the invocation
00:23:45.960of the act itself? Yeah. So the invocation only lasts for 30 days. So if there's a judicial review,
00:23:52.900which is how this would be heard and how it would be challenged, it would have to be heard on an
00:23:57.920emergency basis. The federal courts would have jurisdiction here and the federal courts are
00:24:02.640usually quite good at dealing with things quickly. So I actually think the fact that it's federal
00:24:08.540helps here. It could be heard before that timeline is up. I wouldn't attempt an injunction.
00:24:19.060I've been involved in injunctions in the past two years. They have not gone particularly well
00:24:26.340because the threshold for an injunction against government action is incredibly high. The
00:24:30.660threshold for an injunction in general is incredibly high, but for government action
00:24:34.720in particular, and in the context of the pandemic, there's just been too much deference to the
00:24:40.220government. I wouldn't attempt an injunction. I would go straight to the judicial review.
00:24:46.120I will say though, True North did manage to get an injunction against the federal government for
00:24:50.840the Leaders Debates Commission exclusion a couple of years ago. That's not a COVID thing. It's on
00:24:56.240the covid stuff that they yeah yeah we wouldn't have done as well i suspect and i think the lawyer
00:25:03.360that you used on that um it's a lawyer that we've worked with as well dressing jessica region0.65
00:25:09.680yeah as well she did it she did a tremendous job and actually had like one of the most uh viral
00:25:13.840tweets of the uh pandemic in the last couple days as well talking about how we we all just need to
00:25:18.880get on with our lives so uh it's tremendous to have you and your colleagues on this file here
00:25:24.560Christine Van Gein of the Canadian Constitution Foundation will certainly cover what the CCF does
00:25:29.980with this in the days and weeks ahead. Thank you so much for coming on. Thank you very much for
00:25:33.960having me, Andrew. All right. It's our pleasure. And again, I always I love talking to Christine
00:25:38.860and we'll have her on any time. I hate when I have to talk to her always because it's always coming
00:25:43.800when civil liberties are under threat. Civil liberties are under assault. And the danger1.00
00:25:50.100in this, as you just heard, is that there's so much that hasn't been defined. And it is
00:25:55.340political posturing. You get Justin Trudeau that comes out there and says, you know, we're telling
00:25:59.360you that you're breaking the law and we're watching you. You've got Chrystia Freeland coming out and
00:26:03.380saying, we're putting you on notice. That's what she's saying. We're putting you on notice.
00:26:08.700And you may remember a couple of days ago, I spoke about Nadine Ellis Maffei, who's a woman who was
00:26:15.220visited by the OPP who wanted to knock on her door and remind her that we're watching you. We know
00:26:20.280you're on that Facebook group. We're just telling you about your right to peaceful protest. Well,
00:26:24.480this is, I mean, worse than that because they can go after your money. They can freeze your assets.
00:26:28.360They can take away your insurance, meaning that it is illegal for you to operate your truck even
00:26:34.200more than it is already. But that's what Chrystia Freeland is doing here, saying we are putting you0.96
00:26:41.160on notice. You do not have the right to protest your government. This is the thing. They talk
00:26:47.220about the importance of peaceful protest, but this is a lawless protest. Well, civil disobedience
00:26:53.280inherently violates the law. So for the government to be very selective about it,
00:27:00.440as the government's doing here, they're saying you don't have the right to protest us. And if you do,
00:27:05.260were going to go after your money. I want to play one more clip of Trudeau. This one's a bit
00:27:11.660shorter, but still very telling. This is Trudeau clip one.
00:27:17.100Not using the Emergencies Act to call in the military. We're not suspending fundamental rights
00:27:24.280or overriding the Charter of Rights and Freedoms. We are not limiting people's freedom of speech.
00:27:31.500We are not limiting freedom of peaceful assembly.
00:27:35.540We are not preventing people from exercising their right to protest legally.
00:27:41.680We are reinforcing the principles, values, and institutions that keep all Canadians free.
00:27:54.220We are not taking away your right to peacefully protest.
00:28:24.400the bouncy castle was the last straw for the government
00:28:27.680but what he's saying is that you don't actually have those rights one of the measures i haven't
00:28:33.980mentioned beyond the financial aspects beyond the added police powers is the idea that you can be
00:28:40.340conscripted if you're a tow truck driver you can now be conscripted to start moving trucks and if
00:28:46.080you don't go along with that you could be charged you could be jailed so if you're a tow truck
00:28:51.440driver you no longer have the right to make your own decisions you can now be forced to work for
00:28:56.560the government keeping in mind a lot of tow truck drivers are not interested in doing this they
00:29:02.260support the trucker convoy they haven't wanted to show up and tow them away but now the government
00:29:06.980has had to conscript them under its emergency wartime powers to do this so as much as this is
00:29:16.180something that we're told oh we didn't want to do it this was a choice and I'm glad Christine Van
00:29:20.940Guyne was as honest about this as she was, that this is a political expediency question,
00:29:26.340not a question of whether we're in an emergency. And if you look around, there is not a lot of
00:29:31.560support for this. Academics on the left, on the right, civil liberties organizations, not just
00:29:38.500the Canadian Constitution Foundation, but also the Canadian Civil Liberties Association are coming out
00:29:43.580and condemning this. There are some people that are a little bit more deferential, but even then
00:29:48.540there saying, okay, if you're going to do this, you have to tell us where the emergency is.
00:29:53.540Where is the injury? Where is the risk to Canadians? Oh, well, I should actually walk
00:29:58.680that back. I was in Ottawa. You wouldn't believe the carnage in Ottawa. There was a four-year-old
00:30:03.460that I think tripped in the bouncy castle. There was one guy that burned his tongue on hot chocolate,
00:30:09.500believe it or not. There was a Manitoban who accidentally bumped into a Quebecer on the
00:30:14.200dance floor. It's literally a war zone. It is an absolute war zone. You've got kids with broken0.51
00:30:19.260ankles, not even broken angles, just a little scratch here and there. And this is what Justin
00:30:23.700Trudeau is saying, oh, it's an emergency. They gave Omar, I mean, I don't want to make the
00:30:29.560comparison to Omar Khadr here, but I will because they gave him $10.5 million. But they've now made
00:30:35.160it illegal to give $10 to a trucker, basically. Where is the justice in that? Part of peacefully
00:30:43.920protesting, part of freedom of expression is the idea of being able to express your political
00:30:51.220opposition to the government. And that's exactly what's happening here. People are doing that.
00:30:58.180This has started a movement around the country where people are showing the government they've
00:31:04.760had enough. And it's working. It is absolutely working. The vaccine passports are being lifted
00:31:11.040in Ontario, in PEI, in Manitoba, Alberta, Saskatchewan, even Quebec. Quebec, which had
00:31:17.680a curfew. Quebec, which was threatening to tax the unvaccinated. And now Quebec is lifting the
00:31:25.300vaccine passport. Today, we had the government announce that you're no longer going to need a
00:31:30.240PCR test to fly into Canada or drive into Canada. They're getting rid of the PCR test requirement.
00:31:36.120Now, let me talk about this just for a moment, because I said when this came out on Twitter, you know, does anyone else hear the faint sound of honking?
00:31:43.360Because I do think all of this is related to the convoy.
00:31:47.560And I had a number of people push back and say, well, it's not enough and it still is being applied differently depending on whether someone's vaccinated and they're still replacing it with a rapid test.
00:31:57.060You can look at the provincial governments that are lifting their vaccine passports and keeping other restrictions in place or the governments that are doing it more slowly than they could.