Ottawa’s use of Emergencies Act against convoy protests was unreasonable, violated Charter, court rules

A federal judge says the Liberal government’s use of the Emergencies Act in early 2022 to clear convoy protesters was unreasonable and infringed on protesters’ Charter rights.

In what’s already turning into a divisive decision, Federal Court Justice Richard Mosley wrote that while the protests “reflected an unacceptable breakdown of public order,” the invocation of the Emergencies Act “does not bear the hallmarks of reasonableness – justification, transparency and intelligibility.”

“I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires,” he wrote in a lengthy decision released Tuesday. “Ultra vires” is a Latin term used by courts to refer to actions beyond the scope of the law.

The Federal Court case was argued by two national groups, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, and two people whose bank accounts were frozen. They argued Ottawa did not meet the legal threshold when it invoked the legislation, which had never been used before.

The federal government says it already plans to appeal.

Prime Minister Justin Trudeau’s government invoked the Emergencies Act on Feb. 14, 2022 after thousands of protesters angry with the Liberals’ response to the COVID-19 pandemic, including vaccine requirements, gridlocked downtown Ottawa for nearly a month and blocked border points elsewhere across the country. The protests gained international attention for bringing parts of the capital city to a halt.

The act gave law enforcement extraordinary powers to remove and arrest protesters and gave the government the power to freeze the finances of those connected to the protests. The temporary emergency powers also gave authorities the ability to commandeer tow trucks to remove protesters’ vehicles from the streets of the capital.

Under the Emergencies Act, a national emergency only exists if the situation “cannot be effectively dealt with under any other law of Canada.” Further, a public order emergency can be declared only in response to “an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency.”

The act defers to the Canadian Security Intelligence Service’s definition of such threats — which includes serious violence against persons or property, espionage, foreign interference or an intent to overthrow the government by violence.

The government cited the situation in the Alberta border town of Coutts when it invoked the act. In the early hours of Feb. 14, before the act was invoked, Mounties in Coutts seized a cache of weapons, body armour and ammunition.

Four men are now awaiting trial, accused of conspiring to murder RCMP officers.

Economic orders infringed on Charter rights: judge

Mosley said the situation created by the protests across the country did not meet the CSIS threshold.

“The potential for serious violence, or being unable to say that there was no potential for serious violence was, of course, a valid reason for concern,” he wrote. “But in my view, it did not satisfy the test required to invoke the Act, particularly as there was no evidence of a similar ‘hardened cell’ elsewhere in the country, only speculation, and the situation at Coutts had been resolved without violence.”

Mosley’s decision also examined one of the most controversial steps taken by the government in response to the protests — the freezing of participants’ bank accounts.

“I agree with the [the government] that the objective was pressing and substantial and that there was a rational connection between freezing the accounts and the objective, to stop funding the blockades. However, the measures were not minimally impairing,” he wrote.

The judge said the economic orders infringed on protesters’ freedom of expression “as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace.”

He also concluded the economic orders violated protesters’ Charter rights “by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts.”

The two men whose bank accounts were frozen also argued that their rights under the Canadian Bill of Rights were violated, but Mosley disagreed.

He also concluded that the government’s actions did not infringe on anyone’s right to freedom of peaceful assembly.

Government plans to appeal

Noa Mendelsohn Aviv, executive director of the CCLA, said their win sets a clear and critical precedent for future governments.

“Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy,” she said. “They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws.”

Joanna Baron, executive director of the Canadian Constitution Foundation, said the decision is a “huge vindication for many people.”

“[Mosley] also mentioned that economic disruption cannot form the basis for the invocation of extraordinary measures such as those contained in the Emergencies Act, which I think would lead to a very disturbing precedent across Canada, for example in the event of labour strikes and disruptions,” she said.

The government has long argued the measures it took under the Emergencies Act were targeted, proportional and temporary.

Deputy Prime Minister Chrystia Freeland told reporters at a cabinet retreat in Montreal on Tuesday that the government plans to appeal the decision, setting up a legal battle that could go all the way to the Supreme Court of Canada.

“We believed we were doing something necessary and something legal at the time,” she told reporters on Tuesday. “That continues to be my belief today.”

“This was an extremely tense time. The safety of individual Canadians was under real threat … Our national security was under real threat – our national security, including our economic security,” she said Tuesday.

Speaking alongside Freeland on Tuesday, Public Safety Minister Dominic LeBlanc said that the situation at Coutts and other border crossings helped to inform the government’s decision to invoke the act.

“It’s not banal when the security services tell you that they found two pipe bombs and 36,000 rounds of munition and ended up laying criminal charges as serious as to commit murder,” he said. “So the context is important.”

Mosley said those findings were “deeply troubling” but suggested the threats were being dealt with by the police of provincial and local jurisdiction outside Ottawa.

The judge wrote that it may be “unrealistic” to expect the federal government to wait when the country is “threatened by serious and dangerous situations,” as the provinces or territories decide whether they have the capacity or authority to deal with the threat.

“However, that is what the Emergencies Act appears to require.” he said.

Rouleau commission reached different conclusion

A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government’s use of the Emergencies Act in the fall of 2022 and came to a different conclusion.

After hearing from dozens of witnesses and reviewing thousands of never-before-seen documents, including cabinet ministers’ text messages, Rouleau concluded the federal government met the “very high” threshold needed to invoke the Emergencies Act, citing “a failure in policing and federalism.”

“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote.

Justice Minister Arif Virani said the government cited Rouleau’s conclusions when discussing the government’s decision to appeal Mosley’s ruling.

“[Rouleau’s] decision stands at odds with the decision that was rendered today and I think that is important and that also informs our decision to appeal,” Virani told reporters Tuesday.

Federal government met threshold to invoke Emergencies Act: report

The final report out of the Emergencies Act inquiry found the federal government met the threshold to use it, as convoy protesters choked downtown Ottawa and blocked border crossings in early 2022. Still, Commissioner Paul Rouleau calls out police and the Ontario government for missteps in their responses.

CSIS Director David Vigneault testified that he supported invoking the Emergencies Act, even if he didn’t believe the self-styled Freedom Convoy met his agency’s definition of a threat to national security.

In his final report, Rouleau argued that the definition of “threats to the security of Canada” in the CSIS Act should be removed from the Emergencies Act.

Rouleau, an Ontario Court of Appeal justice, said he reached his conclusion with some reluctance.

“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming,” he said in statements he gave after his report was made public.

“Reasonable and informed people could reach a different conclusion than the one I have arrived at.”

Mosley heard arguments in court over three days last April. He wrote that at the outset of the proceedings, he felt the protests in Ottawa and elsewhere went “beyond legitimate protest and reflected an unacceptable breakdown of public order.”

He said he reached his decision “with the benefit of hindsight” and a more extensive record of facts and law than cabinet had available to it when it made its decision.

Political reaction

Conservative Leader Pierre Poilievre was quick to condemn the government and Prime Minister Trudeau personally.

“He caused the crisis by dividing people,” he posted on the social media platform X. “Then he violated Charter rights to illegally suppress citizens. As PM, I will unite our country for freedom.”

NDP Leader Jagmeet Singh said that his party reluctantly supported the invocation of the act.

“The reason we were in that crisis was a direct failure of Justin Trudeau’s leadership and also other levels of government that failed to act,” he said during a caucus meeting in Edmonton.

Singh said his party will watch to see where the appeal goes.

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