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.
WATCH | Federal government plans to appeal court ruling
‘We will be appealing,’ Freeland says after court ruling on Emergencies Act
9 hours ago
Duration 1:35
Deputy Prime Minister Chrystia Freeland says that she remains ‘convinced’ that invoking the Emergencies Act in early 2022 was ‘the necessary thing to do.’ A federal judge ruled Tuesday that the government’s use of the act was unreasonable.
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.
Anti-COVID-19 vaccine mandate demonstrators leave in a truck convoy after blocking the highway at the busy U.S. border crossing in Coutts, Alta. on Tuesday, Feb. 15, 2022. (Jeff McIntosh/The Canadian Press)
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.
Police move in to clear downtown Ottawa near Parliament hill of protesters after weeks of demonstrations on Saturday, Feb. 19, 2022. The public inquiry investigating the federal government’s unprecedented use of the Emergencies Act in February begins today in downtown Ottawa. (Cole Burston/The Canadian Press)
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.
WATCH | Commissioner says federal government met the threshold
Federal government met threshold to invoke Emergencies Act: report
11 months ago
Duration 3:24
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.
Nova Scotia RCMP say their investigation into two suspicious deaths earlier this month has concluded that one man died by homicide and the other by suicide.
The bodies of two men, aged 40 and 73, were found in a home in Windsor, N.S., on Sept. 3.
Police say the province’s medical examiner determined the 40-year-old man was killed and the 73-year-old man killed himself.
They say the two men were members of the same family.
No arrests or charges are anticipated, and the names of the deceased will not be released.
RCMP say they will not be releasing any further details out of respect for the family.
This report by The Canadian Press was first published Sept. 16, 2024.
For the first time in their history, members of the Cree community of Nemaska received a visit from a sitting Quebec premier on Sunday and were able to share first-hand the story of how they were displaced by a hydroelectric project in the 1970s.
François Legault was greeted in Nemaska by men and women who arrived by canoe to re-enact the founding of their new village in the Eeyou Istchee James Bay region, in northern Quebec, 47 years ago. The community was forced in the early 1970s to move from its original location because members were told it would be flooded as part of the Nottaway-Broadback-Rupert hydro project.
The reservoir was ultimately constructed elsewhere, but by then the members of the village had already left for other places, abandoning their homes and many of their belongings in the process.
George Wapachee, co-author of the book “Going Home,” said community members were “relocated for nothing.”
“We didn’t know what the rights were, or who to turn to,” he said in an interview. “That turned us into refugees and we were forced to abandon the life we knew.”
Nemaska’s story illustrates the challenges Legault’s government faces as it looks to build new dams to meet the province’s power needs, which are anticipated to double by 2050. Legault has promised that any new projects will be developed in partnership with Indigenous people and have “social acceptability,” but experts say that’s easier said than done.
François Bouffard, an associate professor of electrical engineering at McGill University, said the earlier era of hydro projects were developed without any consideration for the Indigenous inhabitants living nearby.
“We live in a much different world now,” he said. “Any kind of hydro development, no matter where in Quebec, will require true consent and partnership from Indigenous communities.” Those groups likely want to be treated as stakeholders, he added.
Securing wider social acceptability for projects that significantly change the landscape — as hydro dams often do — is also “a big ask,” he said. The government, Bouchard added, will likely focus on boosting capacity in its existing dams, or building installations that run off river flow and don’t require flooding large swaths of land to create reservoirs.
Louis Beaumier, executive director of the Trottier Energy Institute at Polytechnique Montreal, said Legault’s visit to Nemaska represents a desire for reconciliation with Indigenous people who were traumatized by the way earlier projects were carried about.
Any new projects will need the consent of local First Nations, Beaumier said, adding that its easier to get their blessing for wind power projects compared to dams, because they’re less destructive to the environment and easier around which to structure a partnership agreement.
Beaumier added that he believes it will be nearly impossible to get the public — Indigenous or not — to agree to “the destruction of a river” for a new dam, noting that in recent decades people have come to recognize rivers as the “unique, irreplaceable riches” that they are.
Legault’s visit to northern Quebec came on Sept. 15, when the community gathers every year to remember the founding of the “New Nemaska,” on the shores of Lake Champion in the heart of the boreal forest, some 1,500 kilometres from Montreal. Nemaska Chief Clarence Jolly said the community invited Legault to a traditional feast on Sunday, and planned to present him with Wapachee’s book and tell him their stories.
The book, published in 2022 along with Susan Marshall, is filled with stories of Nemaska community members. Leaving behind sewing machines and hunting dogs, they were initially sent to two different villages, Wapachee said.
In their new homes, several of them were forced to live in “deplorable conditions,” and some were physically and verbally abused, he said. The new village of Nemaska was only built a few years later, in 1977.
“At this time, families were losing their children to prison-schools,” he said, in reference to the residential school system. “Imagine the burden of losing your community as well.”
Thomas Jolly, a former chief, said he was 15 years old when he was forced to leave his village with all his belongings in a single bag.
Meeting Legault was important “because have to recognize what happened and we have to talk about the repercussions that the relocation had on people,” he said, adding that those effects are still felt today.
Earlier Sunday, Legault was in the Cree community of Eastmain, where he participated in the official renaming of a hydro complex in honour of former premier Bernard Landry. At the event, Legault said he would follow the example of his late predecessor, who oversaw the signing of the historic “Paix des Braves” agreement between the Quebec government and the Cree in 2002.
He said there is “significant potential” in Eeyou Istchee James Bay, both in increasing the capacity of its large dams and in developing wind power projects.
“Obviously, we will do that with the Cree,” he said.
This report by The Canadian Press was first published Sept. 16, 2024.
NEMASKA – For the first time in their history, members of the Cree community of Nemaska received a visit from a sitting Quebec premier on Sunday and were able to share first-hand the story of how they were displaced by a hydroelectric project in the 1970s.
François Legault was greeted in Nemaska by men and women who arrived by canoe to re-enact the founding of their new village in the Eeyou Istchee James Bay region, in northern Quebec, 47 years ago. The community was forced in the early 1970s to move from their original location because they were told it would be flooded as part of the Nottaway-Broadback-Rupert hydro project.
The reservoir was ultimately constructed elsewhere, but by then the members of the village had already left for other places, abandoning their homes and many of their belongings in the process.
George Wapachee, co-author of the book “Going Home,” said community members were “relocated for nothing.”
“We didn’t know what the rights were, or who to turn to,” he said in an interview. “That turned us into refugees and we were forced to abandon the life we knew.”
The book, published in 2022 by Wapachee and Susan Marshall, is filled with stories of Cree community members. Leaving behind sewing machines and hunting dogs, they were initially sent to two different villages, 100 and 300 kilometres away, Wapachee said.
In their new homes, several of them were forced to live in “deplorable conditions,” and some were physically and verbally abused, he said. The new village of Nemaska was only built a few years later, in 1977.
“At this time, families were losing their children to prison-schools,” he said, in reference to the residential school system. “Imagine the burden of losing your community as well.”
Legault’s visit came on Sept. 15, when the community gathers every year to remember the founding of the “New Nemaska,” on the shores of Lake Champion in the heart of the boreal forest, some 1,500 kilometres from Montreal. Nemaska Chief Clarence Jolly said the community invited Legault to a traditional feast on Sunday, and planned to present him with Wapachee’s book and tell him their stories.
Thomas Jolly, a former chief, said he was 15 years old when he was forced to leave his village with all his belongings in a single bag.
Meeting Legault was important “because have to recognize what happened and we have to talk about the repercussions that the relocation had on people,” he said, adding that those effects are still felt today.
Earlier Sunday, Legault had been in the Cree community of Eastmain, where he participated in the official renaming of a hydro dam in honour of former premier Bernard Landry.
This report by The Canadian Press was first published Sept. 16, 2024.
