Emergencies Act: Federal Court Rules Invocation Against Freedom Convoy ‘Unreasonable,’ Unjustified

Police confront participants of the Freedom Convoy protest after the Emergencies Act was invoked, on Feb. 19, 2022. Scott Olson/Getty Images

A federal judge has declared that the invocation of the Emergencies Act in response to the Freedom Convoy protest was “unreasonable” and that related regulations infringed on Canadians’ charter rights.

“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration,” wrote Justice Richard Mosley in a Jan. 23 decision.

The judge said while he had initially believed the Emergencies Act invocation was justified in response to an “unacceptable breakdown of public order,” arguments by the Canadian Constitution Foundation and Justice Centre for Constitutional Freedoms led him to see otherwise.

The two civil liberties organizations had argued in court that the Liberal government did not meet the legal threshold to invoke the legislation in response to the protest. They supported lawsuits filed by five plaintiffs who participated in the protest, two of whom had their bank accounts frozen as a result of the Emergencies Act.

The Freedom Convoy protest was started in response to a mandate requiring COVID-19 vaccination for truck drivers crossing the Canada–U.S. border, and resulted in encampments of trucks in the nation’s capital. The protest evolved into a larger movement against pandemic mandates and restrictions, with similar protests being held at several Canada-U.S. border crossings.

In response to the protests, the federal government ultimately invoked the Emergencies Act on Feb. 14, which gave law enforcement expanded powers to arrest demonstrators, freeze the bank accounts of some protestors, and require towing companies to remove protesters’ vehicles from Ottawa’s downtown core. This latter power was not used, according to evidence presented during the Public Order Emergency Commission.

‘Other Tools’ Available

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

While the judge agreed with Ottawa’s claim that the situation was “critical” and required an urgent resolution by governments, he did not agree with the conclusion that other laws in Canada could not have dealt with the protests, pointing out that the provincial governments of Quebec and Ontario had been able to deal with the protests on their own.

“For these reasons, 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 [beyond lawful authority],” he wrote.

Justice Mosley wrote 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 deals with the right to be secured from unreasonable seizure.

In relation to Section 8, the judge said Ottawa’s decision to freeze the bank accounts of some protestors was “not minimally impairing,” as the regulations applied everywhere in Canada—including in areas where protests were not happening—and because 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.”

The judge said the applicants had established that Ottawa’s decision to invoke the act was “unreasonable and led to infringement of Charter rights not justified under Section 1.” That section of the Charter guarantees Canadians the rights and freedoms set out in it, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Reactions to Ruling

In a press conference following the ruling, Deputy Prime Minister Chrystia Freeland said that the Liberal government would be appealing the decision.

“We respect very much Canada’s independent judiciary. However, we do not agree with this decision. And respectfully, we will be appealing,” she told reporters in Montreal. Ms. Freeland said Canada was facing a crisis and that her government took the right approach.

Conservative Leader Pierre Poilievre said on social media platform X that the judge ruled Prime Minister Justin Trudeau “broke the highest law in the land” by invoking the Emergencies Act.

“He caused the crisis by dividing people. Then he violated Charter rights to illegally suppress citizens. As prime minister, I will unite our country for freedom,” Mr. Poilievre said.

Edward Cornell, one of the plaintiffs in the lawsuit, said the Federal Court decision was a “great win” for all Canadians. The Federal Court judge ruled that Mr. Cornell and Vincent Gircys had standing, whereas the application by the three other plaintiffs was dismissed. Mr. Cornell had his financial accounts frozen during the public order emergency.

“I think we cracked the door open in the justice system today and it gives hope to a lot of Canadians across the country that have been persecuted during this COVID lockdown in this whole era for the past three years,” he told The Epoch Times.

Chris Barber, one of the lead organizers of the trucker protest, told The Epoch Times that the judge’s ruling was “amazing news” on the two-year anniversary of the Freedom Convoy’s arrival in Ottawa. “The truth will come out, and we will be victorious,” he said.

Mr. Barber and fellow organizer Tamara Lich are currently on trial for mischief, obstructing police, counselling others to commit mischief, and intimidation for their role in the protest.

Public Order Emergency Commission

Justice Mosley’s decision contradicts that of the Public Order Emergency Commission, which was created to examine whether the federal government was justified in invoking the Emergencies Act. That commission heard from dozens of witnesses over the course of several months, including members of the federal government, police officers, officials from the city of Ottawa, and protest organizers.

Commissioner Paul Rouleau, an Ontario Court of Appeal justice, determined on Feb. 17, 2023, that cabinet had met the “very high” threshold to invoke the act, arguing it had “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.”

According to the legislation, the Emergencies Act can be invoked if there is a threat to the security of Canada so serious that it constitutes a national emergency. The specific threats are defined in Section 2 of the Canadian Security Intelligence Service (CSIS) Act and include espionage and sabotage, foreign-influenced activities, threats or acts of serious violence with ideological motives, and violent revolution.

When Mr. Trudeau testified before the inquiry on Nov. 25, 2022, he said there was a threat to Canada’s national security as defined under Section 2, citing the seizure of firearms and arrest of four men at a border protest site in Coutts, Alta., who had allegedly planned to kill RCMP officers.

The commission had heard that the Canadian Security Intelligence Service (CSIS) did not believe the Freedom Convoy constituted a threat to national security according to the CSIS Act. Mr. Trudeau’s National Security and Intelligence Advisor Jody Thomas had testified on Nov. 17 that she believed the CSIS Act’s definition of a security threat to Canada was “too narrow,” adding that a broader definition could be used to invoke the Emergencies Act.

In his final report, Mr. Rouleau recommended that the definition of “threats to the security of Canada” in the CSIS Act should be removed from the Emergencies Act.