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Canada: asset freezes for taking part in protests.

Whatever happened to "nice"?

Canadian Prime Minister Justin Trudeau has said that he will use provisions in The Emergencies Act to freeze the accounts of those taking part in protects against compulsory vaccination.

From "nice" to "nuclear" in one step because the power is extraordinary in every sense of the word.

Canada has gone mad, it seems. Of course, there are those who will remember the often violent and always disruptive protests at various inter-governmental agencies in Canadian cities that undermined Canada's reputation for calm and in any case it was usually caused by insurgents, protesters from other countries.

But in recent weeks, the situation has been different. It's Canadians that are blockading the country and causing widespread disruption and disturbance.

They claim that they are doing it because they are protecting their freedoms and the Canadian way of life.

The battleground is compulsory vaccination, at least on the face of it. The story most told by the media is that it's all about truckers: haulage operators who ply cross-border lorry routes carrying a surprisingly large range of goods both ways between the USA and Canada. The drivers say they should not be forced to be double (triple?) vaccinated before they cross the border. They also say they should not be subject to quarantine.

More than 80% of Canadians are fully vaccinated, the government says. So it seems unlikely that every lorry crew is protesting for their own direct interests. Something deeper is going on. Something very un-Canadian.

The something deeper is that there are dozens of little groups of the broad-left which want to protest against anything and everything. Some hang their hat on vaccination, others on any one of many alternative reasons. They claim they are at the border in "solidarity" with the truckers. They are, at least in part, pickets.

The harm to the economies on both sides of the border is immense. Years ago, our sister paper wrote about the surprising number of "American" cars that are made in Canada. The protests are causing so much harm that Ford, GM, Toyota and Honda have reduced capacity or shut down plants all together because, it turns out, Canada makes much more than cars: it makes, or acts as a collection and distribution centre for, many components. These have, of course, been delivered according to the Just In Time method so popular since the 1980s. Now, just as in the global financial crisis and the worst days of the covid-19 pandemic, stuff just isn't getting through and stores, rarely holding more than a few days supply, are empty.

It is not the only reason car producers are in trouble : a global shortage in electronic chips is also harming production.

What started as a convoy to Ottawa to make a protest turned into a major incident made worse by US Republican politicians such as the bad boys of the southern states Ted Cruz of Texas and De Santis of Florida. Moreover, the USA's rabid right-wing blogosphere (it's hard to consider it media in the true sense) has been whooping up sentiment south of the border.

As the situation has worsened, PM Trudeau has announced that, so far as he's concerned, it's no more, Mr Nice Guy.

And what he proposes is absolutely not nice. In fact, it's downright hostile and, perhaps, one of the strongest peacetime measures any government has imposed on its own citizens.

What is the most baffling is that, it is widely reported, most Canadians support the use of documented vaccination as a condition of entry to entertainment and dining, for example. Also, it is said, the Canadian haulage industry has denounced the protests saying that the haulage industry is one of the most vaccinated industries.

It is clear, then, that the protests are, for want of a better word, a vehicle for something else. It is that which has led to comments that the protests are an attempt to intervene in Canadian politics by American interests. To a degree, that makes little sense: Trudeau was, surprisingly for many, re-elected in only September last year. However, his left-of-centre Liberal party - although it gained several seats - remains a minority government. He retains power by reason of the support of other leftist parties and the Greens (who, for all practical purposes, tend to be left-of-centre in any case). Having said that, the sheer number of leftist parties that would need to be moved to oppose him makes any effective opposition unlikely. He can be considered secure so long as he doesn't commit any major gaffe.

His first plan was the obvious one: get a court order telling the protesters to disperse and he did, indeed, obtain such an order. The protesters thumbed their noses.

Worse, it became obvious that they had, somehow, become very well funded. Where the money has come from is not yet known but it is known that it has been channelled through crowdfunding platforms, in particular GoFundMe . GoFundMe shut down the campaign. The protesters moved to a "Christian" crowdfunding site called GiveSendGo.

GiveSendGo is an LLC registered in Delaware, USA. Many of our readers will laugh at that, as we have long campaigned against the anonymity afforded by Delaware company regulations. GiveSendGo is not a major platform and its security isn't great. Recently, its Customer Due Diligence / Know Your Customer database was exposed by hackers, according to Techcrunch. Then, within days of the protesters campaign being launched, the website was hacked and the names of donors to the campaign released.

52,000 out of 100,000 donors to the protests at GiveSendGo are Americans including civil servants, politicians, workers at NASA and an American multi-millionaire

It is not GiveSendGo's first brush with so-called ethical hackers : it has been accused of channelling funding for the invasion, on 6 January 2021, of the Capitol Building by those claiming Biden "stole" the election."

In relation to the Canadian protests, more than USD8 million was collected from a total of just under 100,000 donors all of whom have been identified in a spreadsheet that the hackers, who took complete control of the GiveSendGo website, posted to that website and made completely open and free to all who had tech capable of downloading it.

There are examples of information found in the spreadsheet at https://nationalpost.com/news/...

Repurposed legislation

In the middle of the global financial crisis, the UK's then government decided to apply an interpretation of the terrorist financing laws to certain foreign banks and to freeze their assets in the UK. Frankly, it was a dubious argument that, in the then prevailing conditions, no one had the time or money to challenge. The government's argument was that there was economic terrorism. The reasoning doesn't matter here: it's the fact that it was done that is relevant.

Governments around the world took heart from that although none have gone so far.

Until now.

Canada's Emergency Act is old, ish. It's from 1988 and was said to be reserved for only the most extreme emergencies or existential threats.

Some might agree; some might say "yeah, right."

And Rights are big in the preamble to the Act where it says the government " in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency".

Remember that: there will be challenges on all of those bases - and those challenges will have both funding and time on their side because breaches of rights can be decided after the event; it's not like an action to try to get the money unfrozen.

For frozen money is what is happening.

First, The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) has been brought to bear. As from last night all crowdfunding platforms and payment services providers must register with FINTRAC and are required to make suspicious transaction reports. That, of itself, only matters if the protests are declared to be a crime which is also a predicate crime under counter-money laundering laws.

At the time of writing, it is not clear exactly what criminal conduct is alleged against those taking part in the protests or, rather not which criminal conduct is which is a predicate crime for money laundering purposes.

FINTRAC is a federal agency: the Emergencies Act is a federal law so we are looking for offences only in one jurisdiction.

The Act deals with a range of threats and, most importantly, "Public Order Emergency."

"public order emergency" means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency; 

When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

"threats to the security of Canada" means

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and

(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,

but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). (menaces envers la sécurité du Canada)

Here is not the place to go into the detail - others will do that over time. Here these are the things that interest us:

There is no emergency unless there is a threat to the security of Canada and a threat to the security of Canada expressly excludes "lawful advocacy, protest or dissent." But there is a caveat and it is the caveat that ties together all of the above, in particular "foreign influenced activities....." and "serious violence." Once weapons were found during raids, and money and support from high-profile American politicians, the conditions were, at least prima facie, satisfied.

<3>What law allows freezing of assets?

I like Canadian law. It doesn't mess about. In this case it says at clause 19

" The Governor in Council may make such orders or regulations with respect to the following matters as the Governor in Council believes, on reasonable grounds, are necessary for dealing with the emergency:

(a) the regulation or prohibition of

(i) any public assembly that may reasonably be expected to lead to a breach of the peace,

(ii) travel to, from or within any specified area, or

(iii) the use of specified property;"

It goes on

"(d) the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered; and

(e) the imposition

(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section."

So, that's it: once participation in the protests is made illegal, the government can require anyone to freeze any specified property and, of course, impose movement control orders.

That only requires the government to identify those taking part in the protests and to pass that information to e.g. banks. If the banks don't freeze any specified account (it is not clear how detailed that must be) the banks themselves commit an offence.

And that is what Trudeau has said is his objective. He has said he doesn't need to send in the police or other forces: he can get the banks to do his job for him. Importantly, no court order is required by either the government or the bank, etc.

See, I told you so: no more Mr Nice Guy.

And his deputy isn't nice either. She said "If your truck is being used in these illegal blockades, your corporate accounts will be frozen, the insurance on your vehicle will be suspended." That, of course, means that the vehicle can't be driven home. Sub-text: get your vehicles away from the scene of the crime without delay.

And now the rest of the world knows it can be done if the law is written with sufficient clarity.

But maybe he's not so nasty: the thing is that, so long as the protesters head home and stop causing trouble, their accounts will be released without penalty and with no convictions.

Actually, it seems like a very Canadian fix: firm but fair and no one actually gets hurt so long as they behave like Canadians and play nice.

Only one class of person will remain at risk: those found to have funded the protests after they were banned. They should be nervous, especially if they are foreigners with assets in Canada.

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Further reading:
Emergencies Act: https://laws-lois.justice.gc.c...
Canadian Security Intelligence Services Act https://laws-lois.justice.gc.c...
FINTRAC: https://www.fintrac-canafe.gc....

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Author: 
Nigel Morris-Co...