Federal Court ruling a massive political humiliation for the government
Two years to the day of the beginning of the 2022 Freedom Convoy, the Federal Court has declared the Trudeau government’s response to that protest unreasonable and unconstitutional. On Tuesday, Justice Richard Mosley of the Federal Court issued a decision in a group of cases challenging the invocation of the Emergencies Act in response to the convoy. The cases were brought by public interest organizations, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, as well as individual protesters who had been directly impacted by the emergency orders.
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This decision is extremely gratifying for Canadians of all political stripes who understand the value of public protest and the dangers of governments using a massive sledgehammer to shut them down. The Emergencies Act is extraordinary legislation that was specifically enacted with clear guardrails that limit how it can be used (or abused). For domestic “public order emergencies,” which is how the Trudeau government characterized the 2022 Freedom Convoy, the legislation is only available when there is a threat to the security of Canada that cannot be resolved with existing legal tools. As Justice Mosley recognized, “It is a tool of last resort.”
The Jan. 23 decision is a complete repudiation of the government’s position and a massive political humiliation for the Liberals.
Justice Mosley held that there was no national emergency. Section 17(2)(c) of the Act requires that if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which it does extend shall be specified. The Trudeau government instead invoked the act nationally, claiming that the emergency “exists throughout Canada,” which in the court’s view, was an overstatement of the known situation. Justice Mosley held that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.
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Justice Mosley also found there was no threat to the security of Canada. This phrase has a specific meaning in the Emergencies Act, which is imported from the CSIS Act, and based on the justification given by the government for the emergency, required a threat or use of “serious violence” against persons or property for a political or ideological purpose. Justice Mosley wrote there is only room for a single reasonable interpretation of the statutory provision. The meaning of “threat to the security of Canada” has the same meaning in the Emergencies Act as it does in the CSIS Act. The head of CSIS did not believe a threat to the security of Canada existed. The only specific example of threats of serious violence provided was Coutts, where arrests were made by the RCMP using the Criminal Code.
This is an important point to emphasize because the government continues to claim that “threat to the security of Canada” has a myriad of meanings, including economic harm. In a press conference following the release of the decision, Deputy Prime Minister Chrystia Freeland reiterated the government’s false claim that economic threats can constitute a threat to the security of Canada (which would mean the Emergencies Act could theoretically be invoked to address labour strikes, an obviously troubling thought).
Justice Mosley found that 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. Without a threat to the security of Canada, the invocation of the Act was unreasonable.
In addition to finding that the threshold to invoke the Emergencies Act was not met, the Federal Court found that the regulations enacted under it were also unconstitutional. Once the public order emergency was declared in February of 2022, Cabinet created regulations that prohibited participating in, supporting, or travelling to a gathering that could lead to a breach of the peace. It also created regulations to freeze bank accounts of “designated persons” involved in the protests. The court found both these measures were unconstitutional. The gathering prohibition was an unjustified limit to freedom of expression. The effect was to criminalize attendance at the protests by anyone, including peaceful protesters standing silently with a placard on Parliament Hill.
Justice Mosley also held the freezing of bank accounts was an unreasonable and unjustified search under Section 8 of the Charter. Financial records are part of the “biographical core of personal information” and can reveal personal details about someone such as their financial status and lifestyle choices. The suspension of bank accounts and credit cards affected joint account holders and credit cards issued on the accounts to other family members. Justice Mosley found there appears to have been no effort made to find a solution to that problem. Perhaps worse, there was no standard applied to determine whether someone should be the target of the measures or process to allow them to question that determination, and Justice Mosley described the process for freezing accounts as the police “making it up as they went along”.
The outcome in this case is obviously quite different from the outcome of the Public Order Emergency Commission, but the important difference is this case has the binding weight of precedent. The government has already stated their intention to appeal, but given the detailed reasons in this decision they will have a mountain to climb.
Christine Van Geyn is the litigation director of the Canadian Constitution Foundation.
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24.01.2024
Federal Court ruling a massive political humiliation for the government
Two years to the day of the beginning of the 2022 Freedom Convoy, the Federal Court has declared the Trudeau government’s response to that protest unreasonable and unconstitutional. On Tuesday, Justice Richard Mosley of the Federal Court issued a decision in a group of cases challenging the invocation of the Emergencies Act in response to the convoy. The cases were brought by public interest organizations, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, as well as individual protesters who had been directly impacted by the emergency orders.
Enjoy the latest local, national and international news.
Enjoy the latest local, national and international news.
Create an account or sign in to continue with your reading experience.
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This decision is extremely gratifying for Canadians of all political stripes who understand the value of public protest and the dangers of governments using a massive sledgehammer to shut them down. The Emergencies Act is extraordinary legislation that was specifically enacted with clear guardrails that limit how it can be used (or abused). For domestic “public order emergencies,” which is how the Trudeau government characterized the 2022 Freedom Convoy, the legislation is only available when there is a threat to the security of Canada that cannot be resolved with existing legal tools. As Justice Mosley recognized, “It is a tool of last resort.”
The Jan. 23 decision is a complete repudiation of the government’s position and a massive political humiliation for the Liberals.
Justice Mosley held that there was no national emergency. Section 17(2)(c) of the Act requires that........
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