ANALYSIS: How the Federal Court Decision on the Emergencies Act Differs From Public Order Commissioner’s Finding

People participate in a Freedom Convoy rally protesting the federal vaccine mandate for truckers and other pandemic restrictions, in Ottawa on Jan. 29, 2022. The Canadian Press/Justin Tang

Nearly two years after the Freedom Convoy first began, a federal judge has ruled that Ottawa’s invocation of the Emergencies Act in response to the cross-country protest was “unreasonable.” But that decision contrasted with the conclusion of a federal inquiry report from early 2022, which found the government was justified in invoking the act for the first time in Canadian history.

The Liberal cabinet has said it will be appealing Justice Richard Mosley’s Jan. 23 decision, with Deputy Prime Minister Chrystia Freeland saying during a press conference that invoking the act was a “hard decision to take,“ but also ”the necessary thing to do” at the time.

The Freedom Convoy protest originated as a demonstration against mandatory COVID-19 vaccinations for truckers traversing the Canada-U.S. border. The protest subsequently expanded into a broader movement opposing various pandemic-related mandates and restrictions, sparking parallel demonstrations at multiple Canada-U.S. border points.

The federal government invoked the Emergencies Act on Feb. 14 to deal with the protests, giving law enforcement expanded powers to arrest demonstrators, freeze the bank accounts of some protestors, and require towing companies to remove protesters’ vehicles from Ottawa. The act also made it illegal to attend any event deemed an unlawful assembly, such as the protest in downtown Ottawa.

The Emergencies Act was revoked shortly after on Feb. 23, but its ramifications have been long-lasting. Civil liberties organizations have argued in court that the Liberal government did not meet the legal threshold to invoke the legislation in response to the protest, saying that Canadians’ charter rights were violated.

Two Different Decisions

The Public Order Emergency Commission was created to determine if the federal government was justified in invoking the Emergencies Act. Over the course of several months, the commission poured over documents and interviewed dozens of witnesses, including cabinet members, police officers, officials from the city of Ottawa, protest organizers, and Ottawa residents.

Those efforts culminated in Commissioner Paul Rouleau releasing his final report on Feb. 17, 2023, which found that cabinet had met the “very high” threshold to invoke the act. He argued there were “reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.”

Justice Rouleau, an Ontario Court of Appeal justice, said that in some instances it was “beyond doubt” that the conditions were met for invoking the act, but there were also other questions requiring “careful review.” Justice Rouleau said he came to the conclusion “reluctantly,” as the factual basis for his decision was not “overwhelming.” He added that “reasonable and informed people could reach a different conclusion than the one I have arrived at.”

Indeed, 11 months later, a different conclusion was reached. Justice Mosley, in his ruling, said at first he believed the invocation of the act was reasonable at the outset of the proceedings, but later came to the conclusion that the “proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility.”

Justice Mosley also wrote that the Emergencies Act was meant to be a tool of last resort, and it was not for Ottawa to invoke because “it is convenient, or because it may work better than other tools at their disposal.”

Was The Emergencies Act Needed?

A prominent question raised in the aftermath of the Freedom Convoy was whether the different levels of government could have dealt with the matter in the absence of the Emergencies Act. Section 3 of the act requires that, for it to be invoked, the national emergency must “exceed the capacity or authority of a province to deal with it.”

Both Justice Mosley and Justice Rouleau were in agreement that the protest in the nation’s capital evolved into an “occupation” that was beyond the ability of the Ottawa police alone to handle. Both Justices also acknowledged the border blockades were having impacts on Canada’s supply chains and trade with the United States.

Justice Rouleau wrote that Ottawa lacked jurisdiction to effectively address the protests, could offer only limited assistance to law enforcement, and that law enforcement had concerns about harms that could arise from enforcing existing Criminal Code laws. He also agreed with cabinet that using the military to quell the protests—which was considered preferable to using the Emergencies Act when it was first adopted—was not appropriate under the circumstances.

Justice Rouleau said, for those reasons, he concluded the federal government was “reasonably concerned” that the situation could become dangerous and unmanageable. He said that coupled with “credible and compelling evidence” supporting the belief that there existed a public order emergency, the decision to invoke the act was appropriate.

Justice Mosley had a different view. He disagreed with cabinet’s conclusion that the situation had escalated to the point where other laws in Canada could not have dealt with the protests. He pointed out that the border protest in Coutts, Alta., had been handled without the use of the Emergencies Act, and said for that reason he concluded there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore “unreasonable.”

Charter Rights

When considering if the Emergencies Act invocation violated the Charter Rights of Canadians, Justice Rouleau wrote that Ottawa’s economic orders that froze bank accounts did not violate Section 8, which says everyone has the right to be secure against unreasonable search or seizure.

Justice Rouleau determined that the freezing of assets was neither unreasonable nor a form of “seizure,” and the Supreme Court previously explained Section 8 promotes Canadians’ privacy interests but does not protect against restrictions on the enjoyment of property.

When addressing criticisms that the economic measures should have been limited to just Ontario, Justice Rouleau said the measures needed to be national in scope in order to be effective. “Seeking to prevent any funds from supporting the illegal protests was, in my view, a reasonable measure in the circumstances,” he said.

On the question of whether the Emergencies Act violated Canadians’ Section 2 Charter Rights, which involves freedom of thought, belief, opinion, and expression, Justice Rouleau noted that they are subject to reasonable limits and the federal government can limit them to further another important goal. “While protected, political protest can still be restricted. Protesters who are expressing themselves, even peacefully, may still be restricted, so long as the restriction in question constitutes a reasonable limit on section 2 of the Charter,” he said.

Justice Mosely took a different position, arguing that the invocation of the Emergencies Act infringed on Charter Sections 2(b), which deals with freedom of thought, belief, opinion, and expression, and Section 8, which was not justified under Section 1 of the Charter that puts “reasonable limits” on rights and freedoms.

The Justice argued that Ottawa’s decision to freeze the bank accounts of some protestors was “not minimally impairing,” because the regulations applied everywhere in Canada, and there were “less impairing alternatives available” to Ottawa.

Justice Mosley said the federal government’s economic orders violated protestors’ 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.”

Justice Mosely wrote in his decision that had he been a decision-maker in the federal government back in February 2022, he might have agreed it was necessary to invoke the Emergencies Act. But he said with the “benefit of hindsight” and possession of a more extensive record of the facts and law, he came to a different conclusion.