The Federal Court has ruled the Trudeau government’s decision to invoke the Emergencies Act during the so-called “Freedom Convoy” that descended on Ottawa in 2022 violated the Charter of Rights and Freedoms.
In his ruling, Justice Richard G. Mosley said the move was “unreasonable” and outside the scope of the law. Mosley is a 21-year veteran of the Federal Court and is a respected voice on national security legal matters. He has weighed in on some of the most high-profile recent cases in Canadian intelligence, including a 2016 decision that found CSIS had been illegally storing Canadians’ communication data for more than a decade.
The case was brought forward by the Canadian Civil Liberties Association (CCLA), the Canadian Constitution Foundation, Canadian Frontline Nurses and a handful of individuals.
Mosley wrote, “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.”
“I think it’s in the interest of this government and future governments and all Canadians that the threshold to invoke the Emergencies Act remains high and that it is truly, as Justice Mosley says, a legislation of last resort,” CCLA lawyer Ewa Krajewska told Global News.
Deputy Prime Minister Chrystia Freeland says that Ottawa will appeal the ruling.
“We respect very much Canada’s independent judiciary, however we do not agree with this decision, and respectfully we will be appealing it,” Freeland said at the cabinet retreat in Montreal.
Freeland, flanked by Attorney General Arif Virani and Public Safety Minister Dominic LeBlanc, said that in the opinion of the government public, national and economic security was under threat during the protest, and said the decision to invoke the Emergencies Act for the first time was a “hard decision.”
“We were convinced at the time – I was convinced at the time – it was the right thing to do. It was the necessary thing to do. I remain and we remain convinced of that,” Freeland said.
Krajewska said it’s not unexpected the federal government is appealing the decision, but is surprised to see this intent announced so quickly.
“I hear the ministers that they sincerely felt that they were doing the right thing and invoking it, but they misapprehended the legal threshold that needed to exist in order for them to invoke it,” she said.
“They felt that they needed to react to the situation, and this was the best reaction. But it wasn’t.”
LeBlanc discussed how the situation expanded beyond Ottawa to the Ambassador Bridge in Windsor, a key trade route with the United States, and the Coutts border crossing in Alberta.
“It’s not banal when security services tell you that they found two pipe bombs and 36,000 rounds of ammunition and ended up laying criminal charges as serious as conspiracy to commit murder and assaulting peace officers. So the context is important,” LeBlanc said.
Four people were charged with conspiracy to commit murder that were associated with the border blockade in Coutts.
Much of the Coutts blockade was cleared prior to the February 14, 2022 declaration of a public order emergency, the first step in invoking the act.
The CCLA successfully argued that the existing laws of Canada were sufficient in dealing with the blockades and extraordinary powers granted by the Emergencies Act were not needed.
“Yes, what was happening in Coutts may have been concerning, but [Mosley] finds that the existing laws of Canada were sufficient to deal with what was happening in Coutts and elsewhere in the country, and that is what the government was not able to demonstrate,” Krajewska said.
During the Public Order Emergency Commission (POEC), Justice Paul Rouleau said that the decision to invoke the act met the “very high threshold” outlined in the legislation.
The Public Order Emergency Commission was required under the law, which states that any time the Emergencies Act is invoked there must be an inquiry to probe whether the use was warranted and that the work on that needs to begin within 60 days.
Krajewska pointed out that while Rouleau’s report found the government was justified, he pointed out people could reasonably disagree with his decision and it was not a legal analysis.
What does the court ruling reveal?
The ruling includes a secret February 2022 memo from the Privy Council Office (PCO), the central government department that supports the prime minister, recommending Trudeau invoke emergency powers.
The document, which was partially censored and marked “cabinet confidence” – some of the most sensitive information in the federal government – noted that PCO believed the “examples of evidence to date” support the conclusion that the Emergencies Act was required.
Although from the outset, PCO noted their conclusion could be challenged.
“While there is no current evidence of significant implications by extremist groups or international sponsors, PCO notes that the disturbance and public unrest is being felt across the country and beyond the Canadian borders, which may provide further momentum to the movement and lead to irremediable harms – including to social cohesion, national unity, and Canada’s international reputation,” the document read.
“In PCO’s view, this fits within the statutory parameters defining threats to the security of Canada, though this conclusion may be vulnerable to challenge.”
Nevertheless, Canada’s most senior bureaucrat at the time – Clerk of the Privy Council Janice Charette – approved the memo recommending the Emergencies Act be invoked.
PCO’s recommendation noted that “while municipal and provincial authorities have taken decisive action in key affected areas,” the situation was “concerning, volatile and unpredictable.”
“In addition, PCO is of the view that this is a national emergency situation that is urgent, critical, temporary and seriously endangers the health and safety of Canadians that cannot be effectively dealt with uniquely by the provinces or territories,” the document reads.
Krajewska tells Global News that the document was first produced during POEC, and the CCLA had it submitted to the court during this case.
“I think it’s very important from a democracy and transparency perspective that the government produced this document during POEC and that it’s now been appended to this decision,” Krajewska said.
“It’s important for Canadians to understand how the decision was made and what information the government had before it when it was making this decision.”
The document is a remarkable window into the advice Trudeau was getting from the public service during the crisis. Cabinet documents are very rarely released, and even the censored version contained some revelations.
For instance, it shows PCO was in active talks with the Canadian Armed Forces (CAF) about how the military might assist in ending the protests should they be required.
“Nothing in the invocation implies a role for the Canadian Armed Forces (CAF) in the response to this emergency. Planning does continue to explore whether, how and when military assets could be used to advise and assist with the management of the situation,” the document read.
“This could include CAF providing available resources and equipment support such as towing operations. CAF could also be deployed to support law enforcement in certain situations, in response to a request from a province/territory.”
The PCO memo revealed on Tuesday also notes that while Premier Doug Ford was an enthusiastic supporter of Trudeau invoking emergency powers, other premiers were more skeptical.
“A large number of other premiers expressed concern about the need to act carefully to avoid enflaming the underlying sentiment they considered to lie behind the protest, which they linked to public health measures including vaccine mandates,” the document read.
“These premiers were not seeing the local manifestations of this movement yet in their jurisdiction.”
Quebec Premier François Legault “had a strong negative reaction to the proposal, saying that he would oppose the application of federal emergency legislation in Quebec,” where the memory of Trudeau’s father invoking the War Measures Act during the FLQ crisis is still alive.
VANCOUVER – Contract negotiations resume today in Vancouver in a labour dispute that has paralyzed container cargo shipping at British Columbia’s ports since Monday.
The BC Maritime Employers Association and International Longshore and Warehouse Union Local 514 are scheduled to meet for the next three days in mediated talks to try to break a deadlock in negotiations.
The union, which represents more than 700 longshore supervisors at ports, including Vancouver, Prince Rupert and Nanaimo, has been without a contract since March last year.
The latest talks come after employers locked out workers in response to what it said was “strike activity” by union members.
The start of the lockout was then followed by several days of no engagement between the two parties, prompting federal Labour Minister Steven MacKinnon to speak with leaders on both sides, asking them to restart talks.
MacKinnon had said that the talks were “progressing at an insufficient pace, indicating a concerning absence of urgency from the parties involved” — a sentiment echoed by several business groups across Canada.
In a joint letter, more than 100 organizations, including the Canadian Chamber of Commerce, Business Council of Canada and associations representing industries from automotive and fertilizer to retail and mining, urged the government to do whatever it takes to end the work stoppage.
“While we acknowledge efforts to continue with mediation, parties have not been able to come to a negotiated agreement,” the letter says. “So, the federal government must take decisive action, using every tool at its disposal to resolve this dispute and limit the damage caused by this disruption.
“We simply cannot afford to once again put Canadian businesses at risk, which in turn puts Canadian livelihoods at risk.”
In the meantime, the union says it has filed a complaint to the Canada Industrial Relations Board against the employers, alleging the association threatened to pull existing conditions out of the last contract in direct contact with its members.
“The BCMEA is trying to undermine the union by attempting to turn members against its democratically elected leadership and bargaining committee — despite the fact that the BCMEA knows full well we received a 96 per cent mandate to take job action if needed,” union president Frank Morena said in a statement.
The employers have responded by calling the complaint “another meritless claim,” adding the final offer to the union that includes a 19.2 per cent wage increase over a four-year term remains on the table.
“The final offer has been on the table for over a week and represents a fair and balanced proposal for employees, and if accepted would end this dispute,” the employers’ statement says. “The offer does not require any concessions from the union.”
The union says the offer does not address the key issue of staffing requirement at the terminals as the port introduces more automation to cargo loading and unloading, which could potentially require fewer workers to operate than older systems.
The Port of Vancouver is the largest in Canada and has seen a number of labour disruptions, including two instances involving the rail and grain storage sectors earlier this year.
A 13-day strike by another group of workers at the port last year resulted in the disruption of a significant amount of shipping and trade.
This report by The Canadian Press was first published Nov. 9, 2024.
The Royal Canadian Legion says a new partnership with e-commerce giant Amazon is helping boost its veterans’ fund, and will hopefully expand its donor base in the digital world.
Since the Oct. 25 launch of its Amazon.ca storefront, the legion says it has received nearly 10,000 orders for poppies.
Online shoppers can order lapel poppies on Amazon in exchange for donations or buy items such as “We Remember” lawn signs, Remembrance Day pins and other accessories, with all proceeds going to the legion’s Poppy Trust Fund for Canadian veterans and their families.
Nujma Bond, the legion’s national spokesperson, said the organization sees this move as keeping up with modern purchasing habits.
“As the world around us evolves we have been looking at different ways to distribute poppies and to make it easier for people to access them,” she said in an interview.
“This is definitely a way to reach a wider number of Canadians of all ages. And certainly younger Canadians are much more active on the web, on social media in general, so we’re also engaging in that way.”
Al Plume, a member of a legion branch in Trenton, Ont., said the online store can also help with outreach to veterans who are far from home.
“For veterans that are overseas and are away, (or) can’t get to a store they can order them online, it’s Amazon.” Plume said.
Plume spent 35 years in the military with the Royal Engineers, and retired eight years ago. He said making sure veterans are looked after is his passion.
“I’ve seen the struggles that our veterans have had with Veterans Affairs … and that’s why I got involved, with making sure that the people get to them and help the veterans with their paperwork.”
But the message about the Amazon storefront didn’t appear to reach all of the legion’s locations, with volunteers at Branch 179 on Vancouver’s Commercial Drive saying they hadn’t heard about the online push.
Holly Paddon, the branch’s poppy campaign co-ordinator and bartender, said the Amazon partnership never came up in meetings with other legion volunteers and officials.
“I work at the legion, I work with the Vancouver poppy office and I go to the meetings for the Vancouver poppy campaign — which includes all the legions in Vancouver — and not once has this been mentioned,” she said.
Paddon said the initiative is a great idea, but she would like to have known more about it.
The legion also sells a larger collection of items at poppystore.ca.
This report by The Canadian Press was first published Nov. 9, 2024.
