Invocation of Emergencies Act unreasonable, measures against Freedom Convoy unconstitutional: court

The decision of the Prime Minister and Cabinet to invoke the Emergencies Act was unreasonable, and some of the measures directed at the Freedom Convoy protests were unconstitutional, the Federal Court has found.

Federal Court Justice Richard Mosley concluded that the decision to declare an emergency fell short of the requirements under the Emergencies Act. He also found some of Ottawa’s temporary measures aimed at the protests infringed the Charter. Mosley found

It is the first time the government has invoked the Emergencies Act since the law’s promulgation in 1985 and the first time the courts have commented on and interpreted its provisions.

“It's very important for the government and Canadians to know and understand when this act, which is supposed to be an act of last resort, can be invoked because it does grant the government extraordinary powers to pass legislation by cabinet,” says Ewa Krajewska, who represented the Canadian Civil Liberties Association (CCLA), one of the applicants in the case. “It's important that the threshold for when it can be invoked is high in order to protect people’s civil liberties.”

That is why the court decided to hear the case despite the issue being moot because the decision to invoke the Emergencies Act was revoked, she says. “It's very important for the courts to provide guidance to cabinet as to when they are allowed to invoke this extraordinary piece of legislation.”

Krajewska is partner and co-chair of the civil litigation practice group at Henein Hutchison Robitaille LLP.

With the approval of the cabinet, Prime Minister Justin Trudeau decided to invoke the act on Feb. 14, 2022, in response to the blockades in Ottawa and around the country, including at border crossings.

The act requires that to declare a public order emergency, there must be a “threat to the security of Canada.” The threat must be one outlined in s. 2 of the Canadian Security Intelligence Service Act. The federal government’s proclamation relied on s. 2(c): “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.” The threat cannot be “lawful advocacy, protest or dissent,” unless it is carried out in conjunction with one of the four “threats to the security of Canada,” defined in s. 2.

In s. 16 of the act, a public order emergency occurs when threats to Canada's security are so serious as to constitute a “national emergency.” Paragraph 3(a) of the Act defines a national emergency as an “urgent and critical situation of a temporary nature that seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it… and that cannot be effectively dealt with under any other law of Canada.”

If the Governor in Council reasonably believes that a public order emergency exists and “special temporary measures” are required to deal with it, s. 17(1) of the act them to invoke one. The proclamation described the emergency as threatening the economy and trade relations, the breakdown of the supply chain of essential goods and services, and the potential for heightened unrest and violence that would further threaten Canadians’ safety and security. The proclamation also cited the threat of “serious violence against persons or property” related to the blockades and threats to oppose measures to remove them and their impact on critical infrastructure.

Mosley said there was “no dispute” that the Freedom Convoy and blockades aimed to " achieve a political or ideological objective within Canada” because participants had demanded changes to government policy and a change in government. The question, he said, was whether these activities were “directed toward, or in support of the threat or use of acts of serious violence.”

“The harm being caused to Canada’s economy, trade, and commerce was very real and concerning,” said Mosley. “But it did not constitute threats or the use of serious violence to persons or property.”

The applicants argued that the Regulations and Economic Order, which followed the proclamation, violated ss. 2, 7, and 8. These include the freedom of thought, belief and expression; the right to life, liberty and security of the person; and the right to be secure against unreasonable search or seizure.

Mosley agreed with the applicants on the infringement of s. 2(b), for the Regulations’ impact on their right to protest. He said the Regulations’ scope was too broad because they captured people who showed up to protest at Parliament Hill but had no intention of breaching the peace by participating in a blockade.

 The judge did not find a breach of the Charter right of peaceful assembly, agreeing with Canada that “gatherings that employ physical force, in the form of enduring or intractable occupations of public space that block local residents’ ability to carry out the functions of their daily lives, in order to compel agreement [with the protestors’ objective] are not constitutionally protected.” He also found no breach of s. 2(d), the freedom of association, because it protects “the freedom to form and maintain associations, not the activity itself.”

Mosley also declined to find a breach of s. 7. The applicants argued that the criminal penalties for failure to comply with the special measures were geographically overbroad because they applied to all Canadians, even those nowhere near the protests. But Mosley said that a party asserting a s. 7 violation must also show that their deprivation of liberty is “not in accordance with the principles of fundamental justice.” Because “the deprivation was temporary in nature and subject to judicial review,” he said he was not prepared to find a s—7 violation.

The s. 8 argument concerned the economic order’s freezing of bank accounts. The economic order required banks to disclose information on people the RCMP designated, including what they were doing with their money. Canada argued the economic order did not constitute a “seizure” within the meaning of s. 8 because the money was frozen, not taken.

But, said Mosley: “While the purpose of Charter s 8 is to protect privacy rights and not property, governmental action that results in the content of a bank account being unavailable to the owner of the said account would be understood by most members of the public to be a ‘seizure’ of that account.” He said that the “failure to require that some objective standard be satisfied before the accounts were frozen breached s. 8.”

Mosley found that the infringements of ss 2(b) and 8 were not minimally impairing and, therefore, not justified under s. 1.