It was refreshing to see a Canadian court rule against the government, for a change.
The Federal Court of Canada on Jan. 23 ruled that the use of emergency powers to shut down the peaceful Freedom Convoy protest in Ottawa in February 2022 was unreasonable and “not justified in relation to the relevant factual and legal constraints” required by the Emergencies Act.
The decision comes after a spate of Canadian court rulings in 2022 and 2023 that affirmed government violations of Charter rights and freedoms, including the freedoms of expression, religion, conscience, association, mobility, and peaceful assembly.
This court ruling in Jost v. Canada (Attorney General) suggests that Justice Richard Mosley was not sympathetic to the truckers or their cause.
Without a hint of irony, he accuses the Freedom Convoy “blockaders” of inflicting “very real harm” to Canada’s economy, trade, and commerce. He does this seemingly without considering how much “very real harm” governments inflicted on thousands of small businesses by imposing lockdown measures that drove so many Canadians into bankruptcy and poverty, not to mention isolation, loneliness, anxiety, depression, and despair.
But whatever his personal opinions about the Freedom Convoy might be, Justice Mosley ruled against the federal government because “the record does not support a conclusion that the Convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada”—which is what the Emergencies Act requires to justify its use.
Expounding further, Justice Mosley pointed out that the “situation at Coutts was dealt with by the RCMP employing provisions of the Criminal Code. The Sûreté du Québec dealt with the protests in that province and the Premier expressed his opposition to the Emergencies Act being deployed there. Except for Ottawa, the record does not indicate that the police of local jurisdiction were unable to deal with the protests.”
Without referencing specific evidence, Justice Mosley asserts that “residents, workers and business owners in downtown Ottawa” were victims of some undefined “harassment” and had lost their right to peaceful enjoyment of public spaces. Yet, in keeping with the requirements set out in the Emergencies Act, he concludes that these “highly objectionable” events “did not amount to serious violence or threats of serious violence.”
Justice Mosley states that various concerns about the protests may well have met a vague and general threshold as being “threats to the security of Canada” had those words remained undefined in the Emergencies Act. But he notes the legal requirement of relying on definitions imported from the CSIC Act, and concludes that the prime minister and his cabinet did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Emergencies Act, such that their decision was ultra vires (outside of the powers) of the legislation.
Regarding the freezing of bank accounts, Justice Mosley notes that the RCMP provided names to financial institutions, without any objective standard to protect the innocent. Accounts were frozen based only on “bare belief” of the RCMP, without the normal standard of either reasonable grounds or a standard of reasonable suspicion. Therefore, the failure to require that some objective standard be satisfied before the accounts were frozen breached the Charter Section 8 protection against unreasonable search and seizure.
Justice Mosley rejects the Applicant’s argument that the emergency measures violated the protesters’ Charter-protected freedoms of association and peaceful assembly, and their right to life, liberty, and security of the person. But he does find that freedom of expression and the right to be free from unreasonable search and seizure were unjustifiably violated.
He concludes that the federal government’s decision to issue the proclamation of a national emergency does not bear the hallmarks of reasonableness: justification, transparency, and intelligibility.
The federal government has announced its intention to appeal the decision. It may well succeed, but it faces an uphill fight against a carefully considered and meticulously reasoned decision, which includes extensive and detailed references to facts.
More significantly, the decision is written by a judge who clearly displays no sympathy for the Freedom Convoy or its raison d'être, yet still rules against the federal government.
