Invoking Emergencies Act wasn’t justified and infringed on Charter rights, Federal Court rules

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The Federal Court ruling comes almost exactly a year after the Commissioner of the Emergencies’ Act inquiry found that the government acted appropriately when it invoked the Act in 2022.Justin Tang/The Canadian Press

The federal government acted unreasonably and was not legally justified in its decision to invoke the Emergencies Act to quell anti-government, anti-vaccine-mandate protests that gridlocked Ottawa and jammed some border crossings two years ago, the Federal Court has ruled.

Cabinet’s decision to proclaim a public order emergency under the act “does not bear the hallmarks of reasonableness,” Justice Richard Mosley wrote in a decision released Tuesday. The government failed to prove that there was an emergency, as defined by the Emergencies Act, with the protests not meeting the high threshold of a threat to the security of Canada, he said.

The government “cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces,” he wrote.

The ruling came down almost a year after the Emergencies Act inquiry found the government acted appropriately when it invoked the act. However, at the time, the commissioner, Justice Paul Rouleau, said the factual basis to support his conclusion was not “overwhelming” and “reasonable and informed people could reach a different conclusion.”

Deputy Prime Minister Chrystia Freeland told reporters the government stands by its decision and will appeal the Federal Court ruling.

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“We do not agree with this decision,” Ms. Freeland said in Montreal, where the federal cabinet was meeting to discuss strategy for the return of Parliament next week.

“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.”

In the ruling, Justice Mosley said the act’s invocation was unreasonable, because “threat to the security of Canada” did not mean simply a general danger to the Canadian way of life, as that phrase had been defined in other contexts. The Emergencies Act, he said, required use of the CSIS Act’s definition – a threat or use of serious violence against people or property.

Outside of an incident at the U.S. border in Coutts, Alta., where the RCMP found firearms, ammunition and other evidence of violent extremist ideology, there was no such threat or use of violence, Justice Mosley said. And the Mounties addressed the dangers at Coutts using the Criminal Code before cabinet invoked the Emergencies Act.

He also said the invocation violated the right to freedom of expression under the Charter of Rights and Freedoms because protesters who were merely holding up placards could have faced enforcement as much as someone who parked a truck on Wellington Street near the Parliament buildings. The government also violated the Charter protection against unreasonable searches by freezing bank accounts without using an objective standard for whom it should target, he said.

Separate from the inquiry process, the Canadian Civil Liberties Association and the Canadian Constitution Foundation challenged the act in court, not based on the constitutionality of the Emergencies Act but on whether its use was reasonable in the circumstances.

In statements, the groups celebrated their victory in court.

The decision sets a “clear and critical precedent for every future government,” said Noa Mendelsohn Aviv, executive director and general counsel at the Canadian Civil Liberties Association.

“Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy.”

Joanna Baron, executive director of the Canadian Constitution Foundation, described the act’s invocation as “one of the worst examples of government overreach during the pandemic.”

A handful of individuals affected by the government’s use of those powers also challenged its use in court.

The 1988 Emergencies Act was created as a less draconian, more civil-rights-respecting alternative to the War Measures Act, which was used in 1970 to round up hundreds of Quebeckers after two kidnappings of public officials, one of whom was subsequently murdered.

Ottawa invoked the act for the first time on Feb. 14, 2022, saying there was a “threat to the security of Canada,” after hundreds of trucks invaded downtown Ottawa for weeks on end and border blockades impeded trade – with weapons found at Coutts. The act authorized federal authorities to require financial institutions to disclose information on individuals and groups, freeze accounts and compel tow-truck operators to remove vehicles. It also authorized a ban on travel to protests, and a ban on protests.

The NDP supported the act’s invocation and helped pass the motion in the House of Commons on Feb. 21, 2022. The Bloc Québécois and Conservatives opposed the emergency order.

On Tuesday, Conservative Leader Pierre Poilievre described Justice Mosley’s ruling as confirmation that Justin Trudeau’s government “broke the highest law in the land by invoking the Emergencies Act.”

“A Poilievre Government will ensure the Emergencies Act can never be used again to silence political opposition,” he said in a statement.

The New Democrats on Tuesday stressed that the party only reluctantly supported the government’s decision to invoke the act. Soon after the convoy ended, NDP Leader Jagmeet Singh struck a deal with the Liberals to prop up their minority government in the House of Commons.

“The reason we were in that crisis was a direct failure of Justin Trudeau’s leadership and also other levels of government that failed to act, to take the challenge presented seriously,” Mr. Singh told reporters in Edmonton.

The ruling revives a tense and divisive moment in Canadian politics, said Angus Reid Institute president Shachi Kurl. For Mr. Trudeau’s government, the Emergencies Act invocation is becoming a “zombie that they thought they’d buried,” she said in an interview.

“In the short term, it’s knocked them back off message… and we’ve not heard the last of it.”

Justice Mosley, a designated judge in national-security cases and a veteran of two decades on the court, expressed evident reluctance in reaching the conclusion that the government had no lawful right to invoke the Emergencies Act.

At the start of proceedings in his courtroom, he said, he was leaning to the view that the government’s decision to use the Emergencies Act was reasonable. The demonstrations and blockades “went beyond legitimate protest and reflected an unacceptable breakdown of public order,” he said, and had he been sitting at a government table, he too might have urged the act to be used.

And he said he understood concerns that the definition of “threat to the security of Canada” was too strict.

“This Court may share the views of those who think that a definition designed to constrain the investigative actions of the security service is ill-suited to serve as a threshold for the invocation of emergency powers.” But, he said, “the Court cannot rewrite the statute and has to take the definition as it reads.”

Kent Roach, a law professor at the University of Toronto, said the ruling sends a message that governments must justify their decisions to use extraordinary powers, and that the Emergencies Act “rightly or wrongly does not apply to economic emergencies.” He added that the judge praised the two legal advocacy groups, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, saying they played an important role in Canada’s democracy.

Margot Young, a law professor at the University of British Columbia’s Allard School of Law, said the judge’s decision to reject Ottawa’s argument that the case was moot because the emergency order was lifted after just 10 days also sent an important message: that judicial oversight is critical, despite the time it takes for a court decision.

Ottawa had argued that there were threats of lethal violence against law enforcement and elected officials, and a general atmosphere of intimidation, harassment and lawlessness. It said unrest and serious violence could have been created by the cutting off of supply lines for food, fuel and medicine.

But Justice Mosley said Ottawa’s evidence was vague and not specific.

Whether the protests met the legal definition of threat to the security of Canada was one of the most contentious elements of the Emergencies Act Inquiry.

During the inquiry, the government said it believed that it could look at more factors than the CSIS definition when deciding whether something constituted a national-security threat, because they are different decision-makers with different purposes. However, the government refused to release the legal opinion that justified this position.

Despite that, Mr. Rouleau agreed with the government’s position. Still, among his several dozen recommendations, he said the link between the Emergencies Act and the CSIS Act should be severed.

The government is expected to disclose next month which of his recommendations it will act on.

Deputy Prime Minister Chrystia Freeland says the federal government will appeal the Federal Court decision on the use of the Emergencies Act to end Freedom Convoy protests in Ottawa and at border crossings in 2022.

The Canadian Press