Court to hear legal challenge against use of Emergencies Act

A national civil liberties group is set to argue that "nebulous or strained claims" about economic instability or general unrest weren't enough to legally justify the Liberal government's use of the Emergencies Act early last year.

The Canadian Civil Liberties Association is among the groups and individuals appearing in Federal Court today to argue Ottawa lacked sound statutory grounds to use the emergencies law and associated measures to quell protests that paralyzed the national capital and key border points.

The government contends the measures taken to deal with the pan-Canadian emergency situation were targeted, proportional, time-limited and compliant with the Canadian Charter of Rights and Freedoms.

The Public Order Emergency Commission, a mandatory review that takes place after invocation of the Emergencies Act, found the government met the very high threshold for using the law.

Now the legal arguments for and against the decision will be heard in a court of law.

The three-day hearing is expected to begin with the federal government's reasons why the matter should not be in court at all, given that the emergency measures have been revoked.

In early February 2022, downtown Ottawa was filled with protesters, many in large trucks that rolled into town beginning in late January.

Ostensibly a demonstration against COVID-19 health restrictions, the gathering attracted people with a variety of grievances against Prime Minister Justin Trudeau and his government.

The usually tranquil streets around Parliament were transformed by blaring rig horns, diesel fumes, makeshift encampments, and even a hot tub and bouncy castle as people settled in.

The influx, including some participants with roots in the far-right movement, prompted many businesses to shut their doors and aggravated residents with noise, pollution and harassing behaviour.

Public frustration simmered over a lack of enforcement action by Ottawa police.

Meanwhile, trucks clogged key border crossings, including key routes to the United States at Windsor, Ont., and Coutts, Alta.

On Feb. 14, the government invoked the Emergencies Act, which allowed for temporary measures including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets and a ban on support for participants.

It was the first time the law had been used since it replaced the War Measures Act in 1988.

In a letter to premiers the next day, Trudeau said the federal government believed it had reached a point "where there is a national emergency arising from threats to Canada's security.''

The civil liberties association maintains that legal threshold was not met.

The protests did not, as the Emergencies Act requires, create a "threat to the security of Canada" within the meaning of the Canadian Security Intelligence Service Act, nor was there a "national emergency" within the meaning of the emergencies law, the association argues in a written submission to the court.

"The Act does not permit the government to proclaim an emergency based on nebulous or strained claims about economic instability and international trade, a general sense of unrest, or foreign donations to a cause," the submission says.

"Even the presence of a small number of dangerous individuals in specific locations, while a proper priority for law enforcement, could not justify a nationwide emergency."

Further, the Emergency Measures Regulations and the Emergency Economic Measures Order ushered in by the proclamation fail scrutiny under various provisions of the Charter, the association says.

"The question of whether the legal threshold for invoking the Emergencies Act was met is important not just for evaluating a historical event, but for how it might guide governments in the future," said Cara Zwibel, director of the association's fundamental freedoms program.

"Ultimately, it is a question that can only be answered by the courts."

The Federal Court hearing will include others who filed actions contesting use of the emergency measures: the Canadian Constitution Foundation, Canadian Frontline Nurses and Kristen Nagle, and individuals Jeremiah Jost, Edward Cornell, Vincent Gircys and Harold Ristau.

The government argues federal officials believed, on reasonable grounds, that a public order emergency existed and necessitated the taking of temporary special measures.

The applicants are now asking the court "to use hindsight" to determine that use of the Emergencies Act was unnecessary, the attorney general's submission says.

"However, that is not what is required in these judicial reviews."

The government says the court's role is not to "step into the shoes" of the decision-makers, but rather to determine if the decision was reasonable in the context in which it was made.

This report by The Canadian Press was first published April 3, 2023.