Liberal government’s invoking of Emergencies Act during convoy protest unreasonable, unjustified: ruling

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Prime Minister Justin Trudeau invoked the Act in the wake of trucker convoy protests in downtown Ottawa in February 2022

Published Jan 23, 2024  •  Last updated 12 minutes ago  •  4 minute read

Protesters participating in a cross-country truck convoy protesting measures taken by authorities to curb the spread of COVID-19 and vaccine mandates walk near Parliament Hill in Ottawa. Photo by ADRIAN WYLD/THE CANADIAN PRESS FILES

OTTAWA – The Liberal government’s decision to invoke the Emergencies Act in response to the 2022 Freedom Convoy protests was unreasonable, unjustified and violated the Charter, the Federal Court has ruled.

In a lengthy ruling published Tuesday, Federal Court Justice Richard Mosley found that though the Freedom Convoy protests in early 2022 were causing harm to Canada’s economy, trade and commerce, they did not rise to the level of a threat to national security as defined by the law.

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He thus sided with civil liberties groups who argued the Liberal government went beyond its powers, violated the Charter and was not justified in its historic invocation of the Emergencies Act in February 2022.

“I have concluded that the decision to issue the Proclamation (of the Emergencies Act) does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified,” Mosley wrote.

On the same day, Deputy Prime Minister Chrystia Freeland said the government did not agree with Mosley’s decision and promised to appeal it.

“The public safety of Canadians was under threat, our national security, which includes our national economic security, was under threat,” she said. “I was convinced at the time. It was the right thing to do. It was the necessary thing to do.”

Mosley’s ruling stems from four legal challenges by civil liberty groups, including the Canadian Civil Liberties Association (CCLA) and the Canadian Constitutional Foundation (CCF).

The groups argued the Liberals exceeded their powers when they invoked the unprecedented powers of the act on February 14, 2022, in response to ongoing Freedom Convoy blockades in Ontario and Alberta.

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At the time, the Act was largely used to freeze some convoy participants’ bank accounts, compel tow truck companies to cooperate with local police clearing out blockades and mark parts of downtown Ottawa as a no-go zone.

In coming to his conclusion, the judge found that using the Act to create a no-go zone in downtown Ottawa to clear our protestors infringed on “peaceful” participants’ freedom of expression.

He was also “concerned” about how government went about freezing some protestors’ bank accounts without concern for collateral effects, namely on family members and joint account holders.

Thus, the measure breached their Charter right to be secure against unreasonable search and seizure, he concluded.

“Someone who had nothing to do with the protests could find themselves without the means to access necessaries for household and other family purposes while the accounts were suspended. There appears to have been no effort made to find a solution to that problem while the measures were in effect,” reads the ruling.

The Emergencies Act relies on a definition of a threat to the security of Canada embedded in the legislation that governs CSIS. When justifying its invocation of the 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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Mosley disagreed.

“The record does not support a conclusion that the Convoy 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,” he wrote.

“The harm being caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property,” he added.

The ruling does not propose any remedies nor does it declare any part of the Emergencies Act unconstitutional. “This case was not about the constitutionality of the Act but, rather, how it was applied in this instance,” the judge wrote.

Displaying an uncommon level of introspection in a ruling, Mosley admitted that at the outset of the hearing, his view was “leaning” towards the belief that the government’s invocation of the Act was reasonable.

He said he considered the events of the convoy to have gone “beyond legitimate protest” and were an “unacceptable breakdown of public order.” He also admitted that had he been at the government’s table at the time of the decision, he may have agreed it was necessary to invoke the act.

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“I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the (government),” he wrote.

But months of time to “carefully deliberate” on the evidence and arguments, as well as arguments by the CCF and CCLA, changed his mind.

“Their participation in these proceedings has demonstrated again the value of public interest litigants. Especially in presenting informed legal argument. This case may not have turned out the way it has without their involvement,” he wrote.

Mosley’s conclusion contrasts starkly with that of Commissioner Paul Rouleau, who headed the public inquiry into the government’ use of the Emergency Act last year.

In his report, he concluded the Liberals were justified in using the act but appeared to leave the door open to a different conclusion by the Federal Court.

“I have concluded that cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable,” he said, but noted the evidence was not “overwhelming,” and “reasonable and informed” people could reach a different conclusion.

Conservative leader Pierre Poilievre also reacted to the news on X (formerly Twitter) by placing the blame solely on Trudeau.

“He caused the crisis by dividing people. Then he violated Charter rights to illegally suppress citizens. As PM, I will unite our country for freedom,” he wrote on X.

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