Appeal court finds federal use of Emergencies Act during Freedom Convoy protests unreasonable
OTTAWA --
The Federal Court of Appeal has ruled it was unreasonable for the Liberal government to use the Emergencies Act four years ago to quell protests in the national capital and at key border points.
The decision issued Friday affirms a 2024 Federal Court ruling that rejected use of the emergencies law and found invocation of the act led to the infringement of constitutional rights.
The Federal Court of Appeal said the government lacked a basis to declare that the events across Canada posed a threat to national security or amounted to a national emergency -- requirements that must be satisfied to invoke the Emergencies Act.
For about three weeks in January and February 2022, downtown Ottawa was filled with protesters, including many in large trucks that blocked streets around Parliament Hill.
The usually placid city core was beset by blaring horns from big rigs, diesel fumes, makeshift encampments and even a hot tub and bouncy castle as protest participants settled in.
The influx of people, including some with roots in the far-right movement, prompted many businesses to temporarily shut down and aggravated residents with noise, pollution and harassing behaviour.
Public anger mounted over a lack of enforcement action by Ottawa police.
While many people demonstrated against COVID-19 health restrictions, the gathering attracted some with a variety of grievances against then-prime minister Justin Trudeau and his government.
Trucks also jammed key border crossings to the United States, including routes at Windsor, Ont., and Coutts, Alta.
On Feb. 14, 2022, the government invoked the Emergencies Act, which allowed for temporary measures, including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets, and a ban on support for protest participants.
It was the first time the law had been used since it replaced the War Measures Act in 1988.
In a Feb. 15 letter to premiers, Trudeau said the federal government believed it had reached a point “where there is a national emergency arising from threats to Canada’s security.’’
The Public Order Emergency Commission, which carried out a mandatory review after the use of the act, concluded in early 2023 that the federal government had met the very high legal standard for using the law.
The Trudeau government’s move was also scrutinized in Federal Court.
The Canadian Civil Liberties Association and several other groups and individuals argued in court that Ottawa lacked sound statutory grounds to usher in the emergency measures.
The government contended the steps taken to deal with the turmoil were targeted, proportional and time-limited, and complied with the Charter of Rights and Freedoms.
Richard Mosley, the judge who heard the case, concluded the federal decision to issue the proclamation did not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not supported in relation to the relevant factual and legal constraints.
Ultimately, there “was no national emergency justifying the invocation of the Emergencies Act,” Mosley said in his January 2024 ruling.
He also found the regulations barring participation in public assemblies violated the Charter guarantee of free expression. He said the scope of the regulations was overbroad and captured people “who simply wanted to join in the protest by standing on Parliament Hill carrying a placard.”
He also cited the federal government’s failure to require that “some objective standard be satisfied” before bank accounts were frozen, concluding this breached the Charter prohibition against unreasonable search or seizure.
The federal government appealed the decision, saying it was unfair to fault federal decision-making using “20/20 hindsight.”
The three-judge Federal Court of Appeal panel said that as disturbing and disruptive as the blockades and the “Freedom Convoy” protests in Ottawa could be, “they fell well short of a threat to national security.”
The Court of Appeal said this was borne out by the Canadian Security Intelligence Service’s own assessment, and the judges pointed to the fact that although an alternative threat assessment was requested, the Emergencies Act was invoked before it could be completed.
The Emergencies 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, exceeds the capacity or authority of a province to deal with it and cannot be effectively dealt with under any other law of Canada.
The Court of Appeal concluded the government “did not have reasonable grounds to believe that a national emergency existed,” taking into account the wording of the act, its constitutional underpinning and the record that was before it at the time the decision was made.
The judges said the failure to meet the requirements to declare a public order emergency led them to conclude the federal proclamation “was unreasonable” and exceeded the bounds of legal authority.
Conservative Leader Pierre Poilievre said on social media Friday that by upholding the Federal Court’s decision, the Federal Court of Appeal is upholding Charter rights.
“When this Liberal government divides people and violates their freedoms of thought, belief, opinion and expression, it loses,” Poilievre said. “A Conservative Government will ensure the Emergencies Act can never be used again to silence political opposition.”
Canadian Civil Liberties Association executive director Howard Sapers said the court decision will force governments to consider in future how they meet the legislative thresholds in the Emergencies Act.
“This decision provides some guidance and some guardrails in terms of interpreting the legislation, refining the understanding of it,” he said during a media conference Friday. “The act could still be used and a government could still try to abuse it, but at least now there’s some there’s some precedent decision.”
It was not clear Friday whether the federal government would seek leave to appeal the ruling to the Supreme Court of Canada.
Simon Lafortune, a spokesman for Public Safety Minister Gary Anandasangaree, said the government was reviewing the ruling and assessing next steps.
He said the government “remains steadfast in its commitment to ensuring the safety and security of Canadians.”
The Federal Court of Appeal has ruled it was unreasonable for the Liberal government to use the Emergencies Act four years ago to quell protests in the national capital and at key border points.
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