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.
‘We will be appealing,’ Freeland says after court ruling on Emergencies Act
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.
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.
HALIFAX – Nova Scotia Premier Tim Houston says it’s “disgraceful and demeaning” that a Halifax-area school would request that service members not wear military uniforms to its Remembrance Day ceremony.
Houston’s comments were part of a chorus of criticism levelled at the school — Sackville Heights Elementary — whose administration decided to back away from the plan after the outcry.
A November newsletter from the school in Middle Sackville, N.S., invited Armed Forces members to attend its ceremony but asked that all attendees arrive in civilian attire to “maintain a welcoming environment for all.”
Houston, who is currently running for re-election, accused the school’s leaders of “disgracing themselves while demeaning the people who protect our country” in a post on the social media platform X Thursday night.
“If the people behind this decision had a shred of the courage that our veterans have, this cowardly and insulting idea would have been rejected immediately,” Houston’s post read. There were also several calls for resignations within the school’s administration attached to Houston’s post.
In an email to families Thursday night, the school’s principal, Rachael Webster, apologized and welcomed military family members to attend “in the attire that makes them most comfortable.”
“I recognize this request has caused harm and I am deeply sorry,” Webster’s email read, adding later that the school has the “utmost respect for what the uniform represents.”
Webster said the initial request was out of concern for some students who come from countries experiencing conflict and who she said expressed discomfort with images of war, including military uniforms.
Her email said any students who have concerns about seeing Armed Forces members in uniform can be accommodated in a way that makes them feel safe, but she provided no further details in the message.
Webster did not immediately respond to a request for comment.
At a news conference Friday, Houston said he’s glad the initial request was reversed but said he is still concerned.
“I can’t actually fathom how a decision like that was made,” Houston told reporters Friday, adding that he grew up moving between military bases around the country while his father was in the Armed Forces.
“My story of growing up in a military family is not unique in our province. The tradition of service is something so many of us share,” he said.
“Saying ‘lest we forget’ is a solemn promise to the fallen. It’s our commitment to those that continue to serve and our commitment that we will pass on our respects to the next generation.”
Liberal Leader Zach Churchill also said he’s happy with the school’s decision to allow uniformed Armed Forces members to attend the ceremony, but he said he didn’t think it was fair to question the intentions of those behind the original decision.
“We need to have them (uniforms) on display at Remembrance Day,” he said. “Not only are we celebrating (veterans) … we’re also commemorating our dead who gave the greatest sacrifice for our country and for the freedoms we have.”
NDP Leader Claudia Chender said that while Remembrance Day is an important occasion to honour veterans and current service members’ sacrifices, she said she hopes Houston wasn’t taking advantage of the decision to “play politics with this solemn occasion for his own political gain.”
“I hope Tim Houston reached out to the principal of the school before making a public statement,” she said in a statement.
This report by The Canadian Press was first published Nov. 8, 2024.
REGINA – Saskatchewan Opposition NDP Leader Carla Beck says she wants to prove to residents her party is the government in waiting as she heads into the incoming legislative session.
Beck held her first caucus meeting with 27 members, nearly double than what she had before the Oct. 28 election but short of the 31 required to form a majority in the 61-seat legislature.
She says her priorities will be health care and cost-of-living issues.
Beck says people need affordability help right now and will press Premier Scott Moe’s Saskatchewan Party government to cut the gas tax and the provincial sales tax on children’s clothing and some grocery items.
Beck’s NDP is Saskatchewan’s largest Opposition in nearly two decades after sweeping Regina and winning all but one seat in Saskatoon.
The Saskatchewan Party won 34 seats, retaining its hold on all of the rural ridings and smaller cities.
This report by The Canadian Press was first published Nov. 8, 2024.
HALIFAX – Nova Scotia‘s growing population was the subject of debate on Day 12 of the provincial election campaign, with Liberal Leader Zach Churchill arguing immigration levels must be reduced until the province can provide enough housing and health-care services.
Churchill said Thursday a plan by the incumbent Progressive Conservatives to double the province’s population to two million people by the year 2060 is unrealistic and unsustainable.
“That’s a big leap and it’s making life harder for people who live here, (including ) young people looking for a place to live and seniors looking to downsize,” he told a news conference at his campaign headquarters in Halifax.
Anticipating that his call for less immigration might provoke protests from the immigrant community, Churchill was careful to note that he is among the third generation of a family that moved to Nova Scotia from Lebanon.
“I know the value of immigration, the importance of it to our province. We have been built on the backs of an immigrant population. But we just need to do it in a responsible way.”
The Liberal leader said Tim Houston’s Tories, who are seeking a second term in office, have made a mistake by exceeding immigration targets set by the province’s Department of Labour and Immigration. Churchill said a Liberal government would abide by the department’s targets.
In the most recent fiscal year, the government welcomed almost 12,000 immigrants through its nominee program, exceeding the department’s limit by more than 4,000, he said. The numbers aren’t huge, but the increase won’t help ease the province’s shortages in housing and doctors, and the increased strain on its infrastructure, including roads, schools and cellphone networks, Churchill said.
“(The Immigration Department) has done the hard work on this,” he said. “They know where the labour gaps are, and they know what growth is sustainable.”
In response, Houston said his commitment to double the population was a “stretch goal.” And he said the province had long struggled with a declining population before that trend was recently reversed.
“The only immigration that can come into this province at this time is if they are a skilled trade worker or a health-care worker,” Houston said. “The population has grown by two per cent a year, actually quite similar growth to what we experienced under the Liberal government before us.”
Still, Houston said he’s heard Nova Scotians’ concerns about population growth, and he then pivoted to criticize Prime Minister Justin Trudeau for trying to send 6,000 asylum seekers to Nova Scotia, an assertion the federal government has denied.
Churchill said Houston’s claim about asylum seekers was shameful.
“It’s smoke and mirrors,” the Liberal leader said. “He is overshooting his own department’s numbers for sustainable population growth and yet he is trying to blame this on asylum seekers … who aren’t even here.”
In September, federal Immigration Minister Marc Miller said there is no plan to send any asylum seekers to the province without compensation or the consent of the premier. He said the 6,000 number was an “aspirational” figure based on models that reflect each province’s population.
In Halifax, NDP Leader Claudia Chender said it’s clear Nova Scotia needs more doctors, nurses and skilled trades people.
“Immigration has been and always will be a part of the Nova Scotia story, but we need to build as we grow,” Chender said. “This is why we have been pushing the Houston government to build more affordable housing.”
Chender was in a Halifax cafe on Thursday when she promised her party would remove the province’s portion of the harmonized sales tax from all grocery, cellphone and internet bills if elected to govern on Nov. 26. The tax would also be removed from the sale and installation of heat pumps.
“Our focus is on helping people to afford their lives,” Chender told reporters. “We know there are certain things that you can’t live without: food, internet and a phone …. So we know this will have the single biggest impact.”
The party estimates the measure would save the average Nova Scotia family about $1,300 a year.
“That’s a lot more than a one or two per cent HST cut,” Chender said, referring to the Progressive Conservative pledge to reduce the tax by one percentage point and the Liberal promise to trim it by two percentage points.
Elsewhere on the campaign trail, Houston announced that a Progressive Conservative government would make parking free at all Nova Scotia hospitals and health-care centres. The promise was also made by the Liberals in their election platform released Monday.
“Free parking may not seem like a big deal to some, but … the parking, especially for people working at the facilities, can add up to hundreds of dollars,” the premier told a news conference at his campaign headquarters in Halifax.
This report by The Canadian Press was first published Nov. 7, 2024.
