The Federal Court ruled Tuesday the Liberal government’s invocation of the Emergencies Act in response to the 'Freedom Convoy' protests was unreasonable and led to the infringement of constitutional rights.Justin Tang/The Canadian Press
The ruling from Federal Court Justice Richard Mosley does more than merely reject the Trudeau government’s legal justification for invoking the Emergencies Act in February, 2022, to quash the Freedom Convoy occupation of Ottawa’s Parliamentary precinct.
The judgment also serves as a (much less favourable) second draft of the historical view of the decision to invoke the Emergencies Act for the first time.
But let’s start with the law. Justice Mosley, while expressing some sympathy for those making decisions in the heat of the moment, found that the Ottawa occupation and various border blockades did not meet the threshold for a national emergency as laid out in the Emergencies Act.
That finding alone was enough for the judge to rule that the federal government acted outside of its constitutional powers. But he went further in his analysis, ruling that the government did not have reasonable grounds to believe there was a threat to Canada’s security. The legal test in the part of the Emergencies Act that the government cited in its proclamation was the existence of the threat or use of acts of serious violence against persons or property for the purpose of a political or ideological goal.
This is not to say that the occupation in Ottawa or the border blockades were pacifist. There was a threat of violence (including the seizure of a cache of firearms) near Coutts, Alta., but police had already made arrests by the time the Emergencies Act proclamation was enacted.
The Ottawa occupation was disruptive to many local residents. Those actions, while “highly objectionable,” did not meet that threshold, the judge ruled.
Critically, Justice Mosley also rejected the government’s contention that the threat border blockades posed to Canada’s economy were a justification to invoke the Emergencies Act, noting the statute does not include such language. “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,” he wrote.
The government’s contention otherwise, if accepted by the court, would open the door for any sufficiently disruptive event – say, a legal strike at a port – to be deemed a threat to national security. The Liberals stuck with that interpretation Tuesday, as they promised to appeal the ruling.
Lastly, the judge found that the terms of the government’s proclamation were overly broad in banning protests near Parliament Hill, and so had violated peaceful protesters’ Charter right of freedom of expression. In addition, provisions that allowed the RCMP to freeze the bank accounts of protesters was a breach of the constitutional guarantee against unreasonable search or seizure.
So, to sum up: the government of Canada did not obey the law in invoking the Emergencies Act, curtailing the civil liberties of Canadians for nine days. In doing so, it violated the Charter rights of protesters.
However cushioned in cool legal language, that is a rebuke to the federal Liberal government, and a contrast to the findings of the Public Order Emergency Commission, which found that Ottawa did fulfill the requirements of the Emergencies Act. It remains to be seen if the Federal Court decision will be the final word. The Supreme Court may take a different view.
Already, the Conservatives are rushing to the attack. Those wanting to defend the government should ask themselves this question: Would they want a Conservative government to be able to invoke the Emergencies Act outside the strict bounds of the statute, perhaps by shutting down an economically disruptive protest?
Barring a successful appeal, Justice Mosley’s decision is the sole word from Canada’s legal system, a depiction that brings to mind unflattering parallels to the use of the War Measures Act in October, 1970. Half a century ago, that invocation of emergency measures was initially very popular. Over time, Canadians came to see it as an unjustified overreaction and a threat to civil liberties. (The Emergencies Act was supposed to ensure the experience was never repeated.)
The invocation of the Emergencies Act in 2022 was also broadly popular, according to opinion polls. Hopefully, Justice Mosley’s ruling can be a catalyst for a reconsideration of Ottawa’s actions, and an acceptance that the law cannot be set aside, even – especially – in times of emergency.