A federal judge said the Liberal government’s use of emergency laws to remove the convoy protesters in early 2022 was unreasonable and violated the protesters’ Charter rights.
In what is already shaping up to be a divisive decision, Federal Court Judge Richard Mosley said that while the protests “reflected an unacceptable breakdown in public order,” invoking the emergency law “doesn’t have legality. It does not have the characteristics of rationality such as transparency and ease of understanding.” ”
“I am of the view that there is no national emergency that would justify invoking the Emergency Act and that the decision is therefore unreasonable. ultra virus“Ultra vires” is a Latin term used in courts to refer to acts that go beyond the law.
Deputy Prime Minister Chrystia Freeland said she remains “convinced” that triggering emergency laws in early 2022 is “the necessary thing to do”. A federal judge ruled Tuesday that the government’s use of the law was unjustified.
The federal court case was fought by two national organizations, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, as well as two people whose bank accounts were frozen. They argued that when Ottawa invoked the law, it did not meet legal standards that have never been applied before.
The federal government has already said it plans to appeal.
Prime Minister Justin Trudeau’s government said thousands of demonstrators angry at the Liberals’ response to the COVID-19 pandemic, including mandatory vaccinations, have clogged downtown Ottawa for nearly a month and led to other protests across Ottawa. The state of emergency law was activated on February 14, 2022, following the closure of border points in the area. Country. The protests attracted international attention as they brought parts of the capital to a standstill.
The law gave law enforcement special powers to remove and arrest protesters and gave the government the power to freeze the finances of those involved in protests. Temporary emergency powers also give authorities the power to commandeer tow trucks to remove protesters’ vehicles from the capital’s streets.
Under the Emergencies Act, a national emergency exists only in situations that “cannot be effectively addressed by other Canadian laws.” Additionally, a state of security emergency can only be declared “an emergency arising from a threat to the security of Canada that is serious enough to constitute a national emergency.”
The Act follows the Canadian Security Intelligence Agency’s definition of such threats to include serious violence against persons or property, espionage, foreign interference, or intent to overthrow the government by violence.
The government cited the situation in the Alberta border town of Coutts when it invoked the law. In the early morning hours of February 14, before the law was invoked, Coutts’ cavalry seized a cache of weapons, bulletproof vests, and ammunition.
The four men are currently awaiting trial on charges of conspiring to kill an RCMP officer.
Economic orders that violate Charter rights: Judge
Mosley said the conditions created by protests across the country do not meet CSIS standards.
“There is, of course, legitimate reason for concern that serious violence may occur, or that serious violence may not occur,” he wrote. “However, in my view, there is no evidence of similar ‘enhanced solitary confinement’ elsewhere in the country, only speculation, and this law is not necessary to invoke it, especially since Coutts’ situation was resolved without violence.” It didn’t meet the test.”
Mosley’s decision also considered one of the most controversial measures taken by the government in response to the protests: freezing participants’ bank accounts.
“I agree with that [the government] It argued that the purpose was urgent and important and that there was a reasonable connection between the purpose of freezing the account and stopping funding for the blockade. “However, this action did not cause minimal damage,” he wrote.
The judge ruled that the economic order infringed on protesters’ freedom of expression because it “applies too broadly to people who wish to protest but are not participating in activities that could lead to a breach of the peace.” He said he is doing so.
He also said the economic order violated protesters’ Charter rights “by authorizing the unreasonable search and seizure of financial information of designated persons and the freezing of bank and credit card accounts.” I concluded that there is.
The two people whose bank accounts were frozen also argued that their rights under the Canadian Bill of Rights had been violated, but Mosley disagreed.
He also concluded that the government’s actions did not violate anyone’s right to freedom of peaceful assembly.
Government plans to appeal
CCLA Executive Director Noah Mendelsohn Aviv said their victory sets a clear and important precedent for future governments.
“Emergencies are not in the eye of the beholder. Emergency powers are necessary in extreme situations, but they are also dangerous to democracy,” she said. “They should be used sparingly and judiciously. They cannot even be used to deal with large and destructive demonstrations, even if they could be dealt with by regular police and law.”
Joanna Barron, executive director of the Canadian Constitution Foundation, said the decision was “a huge vindication for a lot of people.”
”[Mosley] It also notes that economic turmoil is not a basis for invoking special measures such as those contained in the Emergencies Act, which creates a very worrying precedent across Canada, for example in the case of worker strikes and unrest. I think it will happen,” he said. Said.
The government has long maintained that the measures taken under the emergency law are targeted, proportionate and temporary.
Deputy Prime Minister Chrystia Freeland told reporters at a ministerial gathering in Montreal on Tuesday that the government plans to appeal the decision and prepare for a legal battle that could go all the way to the Supreme Court of Canada. Told.
“We believed at the time that we were doing what was necessary and that we were doing what was lawful,” she told reporters Tuesday. “That is still my belief.”
“These were extremely tense times, when the safety of individual Canadians was under real threat…Our national security was under real threat to our national security, including our economic security. ” she said Tuesday.
Public Safety Minister Dominic LeBlanc, speaking alongside Freeland on Tuesday, said the situation at Coutts and other border crossings helped inform the government’s decision to invoke the law.
“It is not commonplace that security authorities discovered two pipe bombs and 36,000 rounds of ammunition, which ultimately led to criminal charges as serious as murder,” he said. “So context is important.”
Moseley called the findings “very concerning,” but suggested the threats are being addressed by police in provincial and local jurisdictions outside of Ottawa.
Judges say it’s best to expect the federal government to wait when the country is “threatened by a serious and dangerous situation” to determine whether states and territories have the capacity and authority to deal with the threat. He said it may be “unrealistic.”
“But that appears to be what the emergency law requires,” he said.
The Reuleaux Committee reached a different conclusion
A compulsory inquiry led by Commissioner Paul Rouleau, which considered the government’s application of emergency legislation in autumn 2022, reached a different conclusion.
After hearing from dozens of witnesses and reviewing thousands of unreleased documents, including text messages from ministers, Rouleau said the federal government had met the “very high” threshold needed to trigger the emergency law. He concluded that this was due to “failures in police enforcement and activities.” Federalism. ”
“Legal protests descended into lawlessness and a national emergency,” he wrote.
Justice Minister Arif Virani said the government cited Rouleau’s conclusions when discussing the decision to appeal the Mosley decision.
”[Rouleau’s] This decision is inconsistent with the decision taken today and I think it is important and it also influences our decision to appeal,” Virani told reporters on Tuesday. .
Final report of Emergencies Act inquiry reveals federal government reaches threshold for using Emergencies Act as motorcade protesters choke downtown Ottawa and shut down border crossing in early 2022 I made it. Still, Chief Paul Rouleau blames police and the Ontario government for their mishandling. reaction.
CSIS Director David Vigneault testified that he supports invoking the emergency law even though he does not believe the self-proclaimed Freedom Convoy meets the agency’s definition of a threat to national security.
In his final report, Rouleau argued that the CSIS Act’s definition of “threat to the security of Canada” should be removed from the Emergencies Act.
Rouleau, the Ontario Court of Appeal judge, said he reached his conclusion with some reluctance.
“We do not believe that the factual basis is overwhelming and therefore do not reach this conclusion easily,” he said in a statement after the report was released.
“Reasonable, informed people may reach a different conclusion than I have reached.”
Mosley heard arguments in court over three days last April. He wrote that at the outset of the lawsuit, he felt the protests in Ottawa and elsewhere “went beyond legitimate protests and reflected an unacceptable breakdown in public order.”
He said he had reached the decision “with the benefit of hindsight” and had access to a broader factual and legal record than was available to Cabinet at the time of the decision.
political reaction
Conservative Leader Pierre Poièvre immediately criticized the government and Prime Minister Trudeau personally.
“He created a crisis by dividing people,” he wrote on social media platform “We will unite this country.”
NDP Leader Jagmeet Singh said his party reluctantly supports invoking the law.
“The reason we got into that crisis was a direct failure of leadership by Prime Minister Justin Trudeau and the failure of other levels of government to act,” he told a caucus in Edmonton. .
Singh said the party would closely monitor the outcome of the appeal.
