OTTAWA — A judge has ruled it was unreasonable for the Liberal government to use the Emergencies Act to quell "Freedom Convoy" protests in the national capital and at key border points two years ago.
In a decision released Tuesday, Federal Court Justice Richard Mosley said invocation of the act led to the infringement of constitutional rights.
The Canadian Civil Liberties Association and several other groups and individuals had argued in court that Ottawa ushered in the emergency measures without sound statutory grounds.
The government contended the steps taken to deal with the pan-Canadian turmoil were targeted, proportional, time-limited and compliant with the Charter of Rights and Freedoms.
The Public Order Emergency Commission, which carries out a mandatory review after invocation of the Emergencies Act, found the government met the very high legal standard for using the law.
Mosley heard arguments in court over three days last April.
In his ruling, Mosley said he revisited the events with the benefit of hindsight and a more extensive record of the facts and the law than the government had when it proclaimed a public order emergency.
"I have concluded that the decision to issue the proclamation does not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration," Mosley wrote.
Deputy Prime Minister Chrystia Freeland said the government respectfully disagrees with the decision and will appeal it.
"I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision," she told reporters.
In early February 2022, downtown Ottawa was filled with protesters, many in large trucks that rolled into the city 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 the Liberal government.
The usually calm streets around Parliament Hill were beset by blaring rig horns, diesel fumes, makeshift encampments and even a hot tub and bouncy castle as participants settled in.
The influx of people, including some with roots in the far-right movement, prompted many businesses to close temporarily, and aggravated residents with noise, pollution and harassing behaviour.
Public anger mounted 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 Feb. 15 letter to premiers, 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 maintained that legal threshold was not met.
In his long-awaited ruling, Mosley said the Emergencies Act is a "tool of last resort," due to its nature and the broad powers it grants to the federal executive.
The government cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at its disposal or available to the provinces, he wrote.
"This does not mean that every tool has to be used and tried to determine that the situation exceeded the capacity or authority of the provinces. And in this instance, the evidence is clear 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."
Ultimately, there "was no national emergency justifying the invocation of the Emergencies Act," Mosley wrote.
He also found the regulations barring participation in public assemblies violated the Charter guarantee of free expression. He said the scope of the regulations was overbroad, capturing people "who simply wanted to join in the protest by standing on Parliament Hill carrying a placard."
In addition, he cited a federal failure to require that "some objective standard be satisfied" before bank accounts were frozen, concluding this breached the Charter prohibition against unreasonable search or seizure.
Conservative Leader Pierre Poilievre said Trudeau must answer for his "reckless abandonment of the law and the most basic freedoms" of Canadians.
"The decision to invoke the Emergencies Act was unnecessary from the start. Trudeau caused this crisis by dividing people," Poilievre said in a statement.
NDP Leader Jagmeet Singh also blamed Trudeau, saying he failed to address the events seriously — inaction that led the New Democrats to "reluctantly" support introduction of the emergency measures.
The Federal Court hearing included 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.
Mosley said Cornell and Gircys, whose accounts were frozen, had direct standing to challenge the decision, and the judge granted public interest standing to the Canadian Civil Liberties Association and the Canadian Constitution Foundation.
However, Mosley found that Nagle, Canadian Frontline Nurses, Jost and Ristau lacked standing to seek judicial review of the decision, and their applications were dismissed for that reason.
This report by The Canadian Press was first published Jan. 23, 2024.
— With files from Mia Rabson, Dylan Robertson and Stephanie Taylor.
Comments
Deputy Prime Minister Chrystia Freeland is not the only one who respectfully disagrees with Mosley's decision.
I think Mosley has just given permission to all sorts of a$$hats and malcontents to lay siege to our capital, threaten to assassinate our prime minister and take over our elected government. (I wonder what would have been different with a proportional rep government. Or even PP's Cons in charge.) The Hostage Convoy had three weeks to leave and didn't, and the police had three weeks to get rid of them and didn't. I think the government was quite patient.
According to the CCLA: "Emergency is not in the eye of the beholder." In this case, "emergency" was in the eye of millions and millions of Canadian beholders who held their breath for 3 weeks as we beheld the hostage taking. And given what we just learned about the unaccounted-for $8 million grift, perhaps the problem is that the government didn't use the Emergencies Act sooner.
Does anybody know which "most basic freedoms" Mosley and PP and others are convinced we Canadians don't have? Three weeks the Hostage Convoy had. The police were nicer to these hostage takers (until the end) than they've been with people merely trying to safeguard the future, not overthrow the government.
Are we living in the Twilight Zone now? Where an emergency isn't an emergency? Where trying to block the destruction of 1,800-year-old trees is a crime but holding our capital under siege isn't? (I guess nobody got "an injunction" against them because if they had, the Hostage Convoy would have been in deep heckers.) Sheesh.
The Twilight Zone, bizarro world where up is down and there are both facts and "alternative facts." And "truthiness."
And this despite millions of us WATCHING it on our screens, just like Jan. 6th, MILLIONS. I was waiting for the army to be called in. Wow. That slow-moving coup on the right has definitely picked up speed now. They're pulling out all the stops on bringing down Trudeau, perceived as weakened according to polls; even Jagmeet Singh is falling into step, saying he signed the Act "reluctantly!" WTF? I understood that him and Trudeau decided to join forces BECAUSE of that insurrection. Well so much for him and the NDP.....
So who is this judge? Look him up. The red flag for me is that he is on the boards of SEVERAL both international and national organizations (like Stephen Harper's IDU, say?) related to reining in criminal activity, which implies surprising criticism of the current system that he's at the highest levels of! So an expression of his personal bent, which seems to be the usual conservatives' "tough on crime" stance, in keeping with their trademark paranoia that contradicted statistics, which showed a decline. But in keeping with the aforementioned bizarro style, that statistic may actually BE ramping up now BECAUSE of conservative tactics to undermine our institutions via widespread, covert infiltration of organizations, of which there are so many, all sitting ducks for the unprecedented coup.
p.s. Can we please stop calling it a "Freedom" Convoy? Even with the air quotes, it's an entirely inaccurate description. Hostage Convoy is a better description ... or just Convoy. We'll all know which convoy is being talked about. (Freedom, my ....)
My initial understanding is that apparently the judge based his decision on the fact that in theory, the Ontario government and the Ottawa government and police (and the Alberta government) had the tools they needed to do what the Federal government ended up doing. So, in theory, the Emergencies Act wasn't needed because other levels of government COULD HAVE solved the problem with existing legal and organizational tools.
But, THEY DIDN'T. The federal government should not take action based on what the situation could have been if it were different, they should take action based on what the situation actually is, and the situation actually was very bad. And I don't think an insurrection becomes less serious because other levels of government are pretty much aiding and abetting it. Rather to the contrary, I would have thought.
Very astute comments above.
So, rights and freedoms were "violated." This decision seems to elevate the rights and freedoms of the convoy seige participants over the rights and freedoms of the beseiged residents, businesses and workers in downtown Ottawa, hundreds of whom are now part of a class action lawsuit against the convoy seigemeisters on that very point.
Poilievre could give a flying fig about anyone's rights other than the rights of convoy blockade participants.
This was no ordinary protest crowd because they weaponized big trucks in three blockades across the land to purposely have a negative effect on the economy and attempt to force a change in government, a first by any account in this country. Billions in trade were lost. The federal government was fairly close to shutting down the Ottawa HQ.
I think the fact that Doug Ford and his Ontario government sat on their hands and let the blockade in Ottawa and Windsor go on and on, giving the feds no choice but to act to clear it will be a big part of the inevitable appeal. Ditto the completely obvious violation of resident's rights and freedoms which seemed to be ignored in this one-sided decision.
As an urbanist, I saw the downtown and Parliamentary Precinct blocks being overrun by big rigs as an opportunity to pedestrianize at least the federal district. Vehicular traffic has been given all the power over our cities, caused horrific damage to our quality of life and healh and consumes a disproportionate chunk of public budgets. Big rigs parked within 50m of the in-session House of Commons (temporarily located in the West Block near an arterial) sent an alarming visual message to security personnel. That message was overlooked when Wellington was reopened to traffic, and the priority was given back to asphalt over beautiful stone paving, walls and gates, fountains, public art and programmed outdoor activity space for human beings over cars and trucks. Parliament Square ... something that could have been one of the nation's great and most treasured public spaces, an idea that will be forgotten as diesel and gasoline fumes and noise retake Ottawa around the Parliament buildings.
What a shame.