Government lawyers argued in court that two “fundamental errors” were made when a judge determined the invocation of the Emergencies Act in response to the 2022 Freedom Convoy protest was unjustified.
The Federal Court of Appeal in Toronto began a two-day hearing on Feb. 4 on the Liberal government’s appeal of a 2024 decision by Justice Richard Mosley.
Lawyer Michael Feder, who represented the government, argued that the justice erred by using his “own findings of fact and law as if he were the first instance decision maker,” while giving less weight to the Governor in Council’s (GIC) justifications for invoking the Emergencies Act in response to the protest. Civil liberties organizations involved in the case, meanwhile, argued that Justice Mosley was right in finding that the situation didn’t warrant the use of the act.
The Freedom Convoy protest was started in response to a mandate requiring COVID-19 vaccination for truck drivers crossing the Canada–U.S. border, as well as other public health measures and restrictions. The protest took the form of encampments of vehicles gathering in Ottawa, as well as protests in other cities and Canada-U.S. border crossings.
The Liberal government invoked the Emergencies Act on Feb. 14, 2022, which gave law enforcement expanded powers to arrest demonstrators, allowed for the freezing of the bank accounts of some protesters, and required towing companies to remove protesters’ vehicles from Ottawa’s downtown core.
The Public Order Emergency Commission, created to determine whether the Liberal government was justified in invoking the Emergencies Act, heard from dozens of witnesses from the government, law enforcement, the city of Ottawa, and the protest over the course of several months. Commissioner Paul Rouleau, an Ontario Court of Appeal justice, determined on Feb. 17, 2023, that cabinet had met the “very high” threshold to invoke the act.
Rouleau said the government had “reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.” The legislation surrounding the Emergencies Act states it can be invoked if there is a threat to the security of Canada so serious that it constitutes a national emergency.
However, on Jan. 23, 2024, Justice Mosley ruled that Ottawa’s invocation of the Emergencies Act was not reasonable, and that it infringed on Canadians’ Charter rights. He said the Act’s invocation interfered with Charter Sections 2(b), which deals with freedom of thought, belief, opinion, and expression, and Section 8, which deals with the right to be secured from unreasonable seizure, and that the freezing of bank accounts was “not minimally impairing.”
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The same day as Mosley’s ruling, then-Deputy Prime Minister Chrystia Freeland said the federal government would be appealing the decision, adding that the invocation of the Emergencies Act was “a hard decision to take“ but also ”the necessary thing to do.”
Civil liberties organizations that were involved in the court case against the government’s use of the act had argued that the government did not meet the legal threshold to invoke the legislation in response to the protest.
Feds Justified in Decision, Lawyers Argue
Government lawyer Feder told a panel of three judges that Justice Mosley had not applied the methodology for reasonableness review, which would have begun with examining the government’s reasons for declaring the public order emergency. He said that when looking at the situation, the judge used his own findings as “a yardstick by which to measure” the decisions of the government.
Feder said the government had invoked the Emergencies Act in response to a “complicated, volatile, uncertain, and unpredictable situation” that it believed threatened the safety of Canadians and the country’s economy. “It was simply unfair to fault the GIC’s decision-making based on 20/20 hindsight—20/20 hindsight obtained in the peaceful de-escalation that occurred in light of the emergency measures now being impugned,” he said.
According to Feder, the Emergencies Act allows the government to invoke the Act at its discretion, as long as it has “compelling and credible information to ground the belief” that it is warranted. Feder said the cache of weapons and ammunition found in Coutts, Alta., around the time of the protest would give the government reasonable grounds.
John Provart, another government lawyer, said the invocation of the Act did not put any unjustifiable limits on Sections 2(b) or 8 of the Charter. He said the protests were a form of “coercion akin to violent expression,” and therefore were not protected under the Constitution.
Provart also said the economic measures against protesters’ bank accounts did not constitute an unreasonable search and seizure, as Section 8 of the Charter protects privacy and not property, and the measures applied to provisions outside of constitutional protection.
CCF Argues Charter Rights Violated
Canadian Constitutional Foundation (CCF) lawyer Sujit Choudhry said the federal government’s explanation for the invocation of the Emergencies Act did not address the CSIS Act requirement, which was not met in this case, he said. The Emergencies Act can be invoked if there is a threat to the security of Canada so serious that it constitutes a national emergency, he noted.
During the Public Order Emergency Commission, then-CSIS Director David Vigneault had testified that the service did not believe the Freedom Convoy constituted a threat to national security as per the definition in the CSIS Act. Choudhry pointed out that CSIS did not change its assessment after the weapons cache was found at Coutts, and the Integrated Terrorism Assessment Centre had kept its terrorist assessment threat at “medium” throughout the protest.
Choudhry also cited Justice Mosley’s ruling that there could have been a surge of police resources to deal with the protest. “Taken to its absurd conclusion, you could use the [Emergencies Act] anytime by just having understaffed policing resources,” he said.
Fellow CCF lawyer Janani Shanmuganathan said the regulations under the Emergencies Act went too far because they effectively criminalized protesters who had no connection to the border blockades. “The fact that the scope of the regulations goes beyond those who were blockading is why we say that the regulations are an obvious breach of Section 2(b) [of the Charter],” she said.
