Invoking Emergencies Act represented a ‘failure of federalism,’ says lawyer who obtained injunction

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The decision to invoke the Emergencies Act was unreasonable, unjustified and violated the Charter, a Federal Court judge ruled Tuesday.

Published Jan 24, 2024  •  Last updated 1 hour ago  •  5 minute read

A big-rig truck is towed from downtown Ottawa as police break up the convoy protest on Feb. 20, 2022. Photo by Ashley Fraser /Postmedia

The Emergencies Act invoked in response to the 2022 convoy protest was “unreasonable, unjustified” and violated the Charter of Rights and Freedoms, according to a federal court decision released Tuesday.

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But the raucous protest could also have been ended using other laws, says the lawyer who filed for the injunction that silenced the truck horns for 10 days.

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“The question comes down to what level of government really failed. It was clear it was the municipal and provincial levels of government. The federal government didn’t have jurisdiction, and it all unfolded on their doorsteps,” Paul Champ, an Ottawa human rights lawyer, said Wednesday.

“We should have applied more pressure on the province.”

Civil liberties groups had argued that the Liberal federal government went beyond its powers, violated the Charter and was not justified in invoking the Emergencies Act. The Liberals argued they had reasonable grounds to believe the protests posed a threat to national security and could not be dealt with in any other way.

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Federal Court Justice Richard Mosley found that the record did not support a conclusion that the convoy protest had created “a critical, urgent and temporary situation” that was national in scope and could not effectively be dealt with under any other law of Canada. Although the harm being caused to Canada’s economy, trade and commerce was very real and concerning, it did not constitute threats or the use of serious violence to persons or property, he wrote.

However, Mosley also found that the events of the convoy had gone “beyond legitimate protest” and were an “unacceptable breakdown of public order.”

An RCMP officer takes an individual into custody on Feb. 20, 2022, as police clear the convoy protest out of downtown Ottawa. Photo by Ashley Fraser /Postmedia

Former Somerset ward councillor Catherine McKenney said she had thought long and hard about the convoy participants since the report from the Public Order Emergency Commission chaired by Commissioner Paul Rouleau was released in February 2023.

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“The participants violated the rights of people to live within our community in safety,” McKenney said Wednesday.

“The Ottawa Police Service should have done their job, the city should have taken responsibility for its residents. Almost immediately people were afraid to be out in public. I remember reaching out a few days later and asking: ‘What’s the plan?’ I got no response,” McKenney said.

“Had they taken responsibility, I don’t believe that three weeks later we would have needed the Emergencies Act.”

Michelle Hurtubise, executive director of the Centretown Community Health Centre, said people who lived in downtown Ottawa at the time of the protest were concerned about the lack of action at the time.

People reported being intimidated and harassed, she said. Residents who had Pride flags or Black Lives Matter flags had feces thrown at their doors and balconies, she said. The Centretown Community Health Centre had an evacuation plan in effect. She remembers wearing a mask on her way to a vaccination clinic for children and being bumped at least half a dozen times as she walked into the “red zone” of the protest.

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“Working downtown with diesel truck fumes was toxic,” Hurtubise said. “I agree with the right to peaceful protest. I don’t believe that includes bringing in 18-wheelers.”

The Federal Court decision minimized the trauma that people continue to live with, Hurtubise said.

“We were failed by municipal authorities, we were failed by provincial authorities, we were failed by federal authorities,” she said. “It was not peaceful assembly and the tools that were available were not useful in this situation.”

Mosley’s ruling stemmed from four legal challenges by civil liberty groups, including the Canadian Civil Liberties Association and the Canadian Constitutional Foundation.

The groups argued the federal government exceeded its powers by invoking the Emergencies Act on Feb. 14, 2022, in response to ongoing convoy protest blockades in Ontario and Alberta.

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“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 CCLA said in a statement.

Rouleau’s findings criticized the lack of communication between the federal and Ontario governments and the City of Ottawa, with all three levels of government expressing frustration. Ontario Premier Doug Ford argued that management of the convoy protest was a national issue, but the province is ultimately responsible for effective policing in Ottawa, Rouleau’s report said.

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Mosley’s decision was not much different from Rouleau’s conclusion, which was that it was “a failure of federalism,” Champ said.

Deputy Prime Minister Chrystia Freeland has promised the government will appeal Mosley’s decision.

That appeal will go to the Federal Court of Appeal. Champ said he believed it would have a reasonable chance of success.

“I think it all highlights that it should be exceptional circumstances to invoke these powers. That’s the lesson for future leaders,” Champ said.

Meanwhile, it appears there is resolve to implement measures to ensure that protests like this never happen again downtown Ottawa again, and Ottawa in January and February 2022 has become a textbook example of what not to do, Champ said.

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For example, the Rolling Thunder motorcycle convoy in April 2022 resulted in at least 10 arrests and hundreds of Ottawa by-law tickets for no-parking and no-stopping violations.

“The police were very clear: If you think you’re going to bring a truck downtown, that isn’t going to happen,” Champ said.

Hurtubise said a lot of people still felt uneasy with the second anniversary of the convoy’s arrival in Ottawa approaching next week.

“There are a lot of residual concerns in the community,” she said. “People are still very anxious when any protest comes to town.”

Mayor Mark Sutcliffe said the city had learned a lot since the occupation and would be better prepared in the future.

“My focus is not on past decisions or on court rulings, but in making sure we have the right plans in place to protect the people of Ottawa,” Sutcliffe said Wednesday.

“I think our police service has done a lot of work — as has city staff — in making sure what happened two years ago never happens again and that measures are in place to handle those kinds of threats more effectively.”

With files from Blair Crawford

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