Deputy Prime Minister Chrystia Freeland, bottom left, speaks to the media with Minister of Justice Canada Arif Virani, right, and Public Safety Minister Dominic LeBlanc at the federal cabinet retreat in Montreal, on Jan. 23.Christinne Muschi/The Canadian Press
It didn’t take long for Deputy Prime Minister Chrystia Freeland to troop out to say the federal government will appeal. Justin Trudeau’s Liberals know what Tuesday’s court decision is: A millstone around their necks.
Invoking the Emergencies Act to shut down convoy protests in February, 2022, had been a popular decision at the time, and one of the biggest calls Mr. Trudeau ever made. Now the Federal Court of Canada has ruled it was illegal. Justice Richard Mosley concluded there was no national emergency, as defined by the law.
In 2024, now that Mr. Trudeau is much less popular, it’s a stiff blow to his credibility, and a kick at a government’s that’s already down.
That’s why there was no time for ministers to go through the usual stuff about carefully studying the court decision. Ms. Freeland probably didn’t have the chance to read its 190 pages before she was telling reporters the government would appeal. The first task was to suggest the verdict was not really in.
Justice Minister Arif Virani said it “stands at odds” with the report of the public inquiry led by another judge, Paul Rouleau. But Justice Rouleau led an inquiry, while Justice Mosley presided in court. For now, at least, Tuesday’s decision is the law.
What Justice Mosley concluded is that the federal government had reason to be alarmed by some of the incidents in the convoy protests, but they weren’t a national emergency that could not be dealt with under any other law.
He noted that the convoy blockades were broken up by police action under regular laws except the one in Ottawa, which was a “failure of leadership and determination” – so evidently the protests could have been dealt with under other laws.
There were elements that might be considered threats to national security in a general sense, but they didn’t meet the definition set out in the law. And he found that measures to freeze the bank accounts of convoy participants violated the Charter of Rights because the police applied them too broadly and without any objective standard.
If you heard Industry Minister François-Philippe Champagne suggesting in a CBC News interview on Tuesday that the decision to invoke the Emergencies Act was tough and that hindsight is 20/20, you would know that the government line is that this was all a matter of opinion about a murky judgment call they had to make in the proverbial fog of war.
Justice Mosley himself was unusually sympathetic to government decision-makers he found to have acted illegally. He opined that in their place, he might have decided it was necessary to invoke the Emergencies Act – and it was only on rigorous reflection that he deemed it legally unjustified. On two occasions, he suggested the tests set in the law might be reviewed in the future, but he had to apply the law as it was written.
That was the nub of his decision: The Emergencies Act is an extraordinary law that requires legal tests be met before it is used, and Mr. Trudeau’s government didn’t apply them.
The take-away won’t be the legal nuance. The part that people will remember is that a court ruled that Justin Trudeau broke the law in invoking the Emergencies Act.
It was no surprise that Conservative Leader Pierre Poilievre celebrated the decision in a post on X, arguing that Mr. Trudeau caused the crisis by dividing people.
“Then he violated Charter rights to illegally suppress citizens,” he wrote.
But don’t be too shocked if Mr. Poilievre gloats a little less than usual and doesn’t spend a lot of time rehashing the days of the Convoy. His support for those protests fuelled his bid for the Conservative leadership, but as an opposition leader atop the polls, he has tried to avoid rehashing those days.
But for Mr. Trudeau, the court decision brings back that divisive time, and recasts his role in a darker light.
Back then, in February, 2022, a poll found two-thirds of Canada supported Mr. Trudeau’s use of the Emergencies Act. Now the Prime Minister can’t muster that kind of support for anything, and the popular thing he did two years ago broke the law.
That court ruling will now just sit there, weighing on his record like a stone. No wonder the Liberals can’t wait to appeal.