Tuesday's Federal Court decision found the 'economic measures' taken to quell the protest were too broad and harsh to be justified
No, it wasn’t OK for the federal government to commandeer banks and perform account seizures in the face of protest two years ago. The Federal Court ruled Tuesday that the “economic measures” taken to quell 2022’s Freedom Convoy violated the Charter rights of those impacted.
Ladies and gentlemen, this is great news. We now have it on good authority that the government, facing a political crisis and the logistical nightmare of a sudden truck migration, cannot legally de-bank dissidents without a court order. The decision, written by Justice Richard Mosley of the federal court, is an important reminder that the state is not entitled to keep a tight financial leash on its citizens.
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That leash was previously yanked by the feds, who triggered the Emergencies Act on Feb. 15, 2022 and slapped down a number of regulations to dissuade protesting. One of these rules mobilized the entirety of Canada’s financial apparatus — banks, credit unions, insurance providers, loan and trust companies, securities dealers, investors and even donation platforms — to monitor their clients on behalf of the government and report any accounts of suspected protesters to the RCMP and CSIS.
Any such accounts were required, by this law, to be frozen. Dissidents were not given due process, either: no warrants were required to delve into their accounts, no notice was required to be given and no routes of appeal were set out. There’s only one problem: every Canadian citizen has a right to be free from unreasonable search and seizure. And as Mosley explained Tuesday, Canadians were owed that protection back when their accounts were frozen in 2022.
If you’re wondering how such a harsh regulation, now declared unconstitutional by the Federal Court, made it through the drafting process, perhaps it’s because government legal experts at the time insisted that the measures didn’t amount to a seizure at all, let alone an unreasonable one.
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“The Emergency Economic Measures Order does not seize any assets,” wrote Timothy Huyer, federal lawyer of 16 years, on Twitter in late February 2022. “It does provide that financial service providers cease providing services to anyone who is engaged in the prohibited activities.”
The feds argued this point later in court, maintaining that the financial restrictions issued under the Emergencies Act weren’t “seizures” in the first place. The notion was dispelled by the judge.
“While the purpose of Charter (Section 8) is to protect privacy rights and not property, governmental action that results in the content of a bank account being unavailable to the owner of the said account would be understood by most members of the public to be a ‘seizure’ of that account,” wrote Mosley.
“Alternatively, I am satisfied that the disclosure of information about the bank and credit card accounts of the ‘designated persons’ by the financial institutions to the RCMP constituted a ‘seizure’ of that information by the government.”
Another over-reach noted by the judge was just how easy it was to de-bank a person with next to no evidence. Police, at the time, would send names of account holders to banks if they had only a “bare belief” that the account holder was protesting in downtown Ottawa. (Normally, in Canada, police need to have “reasonable grounds to believe” an offence has been committed to arrest and charge a person; to detain a person, a lower standard of “reasonable suspicion” must be met.)
“I find that the failure to require that some objective standard be satisfied before the accounts were frozen breached (the right to be free from unreasonable search and seizure),” wrote Mosley.
Charter rights aren’t absolute, of course, and the state can legally override them — but only if the reason for doing so is urgent and important enough, and only if the state’s action (in this case, the bank seizure) is proportionate to the state’s goal (in this case, ending the protest). The federal government tried to justify the bank freezes accordingly, but failed.
Why? Mosley said the emergency bank freezes applied too widely (the rules targeted protesters at blockades, but applied throughout the country), and pointed out that softer alternatives could have been used.
“There is no evidence that the financial institutions would have refused to cooperate with the implementation of the measures if, for example, their account holders resided in Prince Edward Island or the Territories which had no illegal protests and had travelled to Ottawa to participate in the blockade,” he said.
On top of that, Mosley was troubled by the fact that there was no process for a person to question their account being flagged, and the fact that joint account holders could be punished for their partners’ actions.
“Thus 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,” he wrote. “There appears to have been no effort made to find a solution to that problem while the measures were in effect.”
Finally, validation. About 280 accounts were seized during the Ottawa protests, and Canada became internationally known for being the place that punishes by taking away people’s means to buy food and pay rent without a warrant. Now that the Federal Court has set out exactly why that was wrong, Canadians have a solid precedent to point back to should any tyrannical move be embraced again.
Now, we just have to hope the Supreme Court of Canada is just as reasonable, because this challenge is probably headed all the way to the top.
National Post
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