Canada dispatch: Judge rules government lacked authority to invoke Emergencies Act over Freedom Convoy, breached Charter rights

William Hibbitts is JURIST’s Deputy Editorial Director. He files this report from Halifax, Nova Scotia.

A Canadian Federal Court judge ruled Tuesday in Ottawa that the Canadian government exceeded its authority and violated some protesters’ constitutional rights by invoking the federal Emergencies Act in response to the 2022 Freedom Convoy protests, which brought Canada’s capital to a standstill for three weeks. The Federal Court came to a different conclusion than a 2022 public inquiry, which found in early 2023 that the government’s invocation of the Act was justified

The Emergencies Act is a piece of federal legislation that allows the Canadian government to prohibit certain demonstrations, ban travel to or from a specific area and limit “the use of specified property”  if it believes on reasonable grounds that a “public order emergency,” as defined in the act, exists.

Justice Richard Mosley found that the Freedom Convoy protests, which were convened to oppose COVID-19 vaccination requirements, did not rise to the level of a public order emergency.

Mosley’s reasons for judgment stated that the Canada-wide proclamation of a public order emergency was erroneous. The act stipulates that emergencies are events beyond the capacity of provinces to handle and that cannot be dealt with under any other Canadian law. The justice said the dismantling of the Coutts blockade in Alberta, which did not employ Emergencies Act provisions, demonstrated that other Canadian laws were sufficient to address protest-related disruptions and that only the situation in Ottawa was beyond the scope of provincial capacity.

Mosley also concluded that the Freedom Convoy protests did not constitute a public order emergency. The definition of a public order emergency requires the event to pose “threats to the security of Canada,” as defined in Section 2 of the CSIS Act. Explaining his findings, the justice said that, despite the discovery of firearms and ammunition in Coutts, while certain aspects of the protests would “have been sufficient to meet a test of ‘threats to the security of Canada’ … harm being caused to Canada’s economy, trade and commerce … did not constitute threats or the use of serious violence to persons or property” as required by the CSIS Act.

The court also ruled that the federal government violated participants’ freedom of expression and freedom from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. Because the regulations resulting from the Emergencies Act invocation criminalized participation “in a public assembly that may reasonably be expected to lead to a breach of the peace,” Mosely found that the free expression rights of nonviolent and unobtrusive protesters were infringed.

Further, the court concluded government violated the Charter rights of convoy participants who had their bank accounts frozen. Mosley ruled that the federal government’s order empowering banks to freeze the accounts of those violating the emergency regulations and directing banks to provide violators’ information to the RCMP constituted an unreasonable search and seizure. The justice reasoned that the freezing of accounts constituted a “seizure” and that the order to provide the RCMP with blockade participants’ banking information was a “search.” Mosley held that the searches and seizures were unreasonable as they were not carried out according to an “objective standard.”

Section 1 of the Charter prescribes “reasonable limits” on the rights protected therein. However, Mosely ruled that the rights violations were not justified under Section 1 as the government’s measures did not “minimally impair” the freedom of expression and freedom from unreasonable search and seizure.

The court dismissed challenges to the federal government’s actions under Sections 2(c) and 2(d) of the Charter, which protect freedom of peaceful assembly and association, respectively.  It also held that the government did not violate Section 7’s protection of life, liberty and security of the person. Mosely also did not find a violation of the Canadian Bill of Rights.

The 2022 Freedom Convoy was convened in January of that year for truckers to travel to Ottawa in protest of occupational COVID-19 vaccination restrictions. Protesters occupied Parliament Hill, honking away for weeks in the heart of Ottawa, and some blockaded border crossings with the US.  The demonstrations brought activity in Ottawa’s downtown to a halt.

While the 2022 invocation of the Emergencies Act was controversial, a first in Canadian history, the federally-manded inquiry into the invocation found in 2023 that the government was justified. Though the inquiry said that the protests may not have constituted a threat to national security, the government was justified in believing that the protests posed such a threat and invoking the act as a result.

The Canadian Civil Liberties Association, one of the organizations that challenged the Emergencies Act’s use, hailed their victory in court, adding:

Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy. They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws. The threshold for invoking the Emergencies Act is extremely high. The government must demonstrate that there is an emergency arising from threats to the security of Canada and that that emergency truly has a national scope. The Federal Court agreed that this threshold was not met.

Deputy Prime Minister Chrystia Freeland defended the invocation of the Emergencies Act by saying, “The public safety of Canadians was under threat. Our national security, which includes our national economic security was under threat. It was a hard decision to take. We took it very seriously after a lot of hard work, after a lot of careful deliberation.” Public Safety Minister Dominic LeBlanc added, “It’s not banal when the security services tell you that they found two pipe bombs and 36,000 rounds of munition and ended up laying criminal charges as conspiracy to commit murder and assaulting peace officers.”

The Canadian government will appeal the Federal Court’s decision.

Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.