Judge Says Feds Shouldn’t Have Used Emergencies Act—What Now?

Police face off with Freedom Convoy demonstrators in Ottawa on Feb. 19, 2022. Alex Kent/Getty Images

Federal Court Justice Richard Mosley ruled on Jan. 23 that the federal government’s use of the Emergencies Act in 2022 was “unreasonable.” Although in February 2023, the so-called Rouleau Inquiry found that use of the act in response to the Freedom Convoy was justified, the recent ruling is the first legal decision on the matter.

“This decision is important because it’s a legal determination,” lawyer Alexander Boissonneau-Lehner, who represents some of the applicants in the case, told The Epoch Times. The inquiry report written by Justice Paul Rouleau, on the other hand, was only “a report to Parliament,” he said.

“I think the public thought that was the ultimate determination of this issue, but it’s not,” Mr. Boissonneau-Lehner said.

The federal government has said it will appeal the decision, but either way, the political fallout is what could have the greatest impact here, says lawyer and policy expert Aaron Wudrick.

“It’s going to make it a lot easier for critics of this government to say, ‘you violated the charter and used the most draconian law on the books, and a court has confirmed you did that,’” Mr. Wudrick, director of the Domestic Policy Program at the Macdonald-Laurier Institute, told The Epoch Times.

Conservative Leader Pierre Poilievre and Alberta Premier Danielle Smith were both quick to comment publicly on the decision.

“[Prime Minister Justin Trudeau] caused the crisis by dividing people. Then he violated Charter rights to illegally suppress citizens,” Mr. Poilievre said in a post on X. “As PM, I will unite our country for freedom.”

“Since Day 1, Alberta has been clear that the federal government’s decision to invoke the Emergencies Act during the COVID-19 pandemic violated the constitutionally guaranteed rights of Albertans and gave the federal government the ability to seize property without due process of law,” Ms. Smith said in a joint statement with Alberta Justice Minister Mickey Amery.

Ms. Smith and Mr. Amery likened it to other federal actions that courts have recently found unconstitutional. Those include the feds’ use of the Impact Assessment Act to exert power over development projects, and their classification of plastic goods in such a way as to bring them under federal control. Alberta challenged the federal government on both matters.

Deputy Prime Minister Chrystia Freeland told reporters on Jan. 23 that the government would appeal the decision.

“I was convinced at the time, it was the right thing to do,” she said. “I remain, and we remain convinced of that.”

She said public safety and national security were under threat at the time, “which includes our national economic security.”

One of the reasons for Justice Mosley’s decision was that he found the government lacked “reasonable grounds to believe that a threat to national security existed within the meaning of the [Emergencies] Act.”

What the Decision Says

Several applicants applied for judicial review in February 2022. They include participants in the Freedom Convoy who had their bank accounts and credit cards frozen, such as military veteran Edward Cornell and retired police officer Vincent Gircys.

Other applicants include organizations such as the Canadian Constitution Foundation (CCF) and the Canadian Civil Liberties Association (CCLA), which brought their applications on the basis of public interest.

Josh Dehaas, CCF counsel, explained the main legal points in Justice Mosley’s decision.

“He’s reviewing the decision to invoke the Emergencies Act for what’s called ’reasonableness,' so basically looking at the text of the act, did cabinet essentially follow the law,” Mr. Dehaas told The Epoch Times.

Justice Mosley found that there was not a significant enough “threat to the security of Canada” to invoke the act.

“That doesn’t include, you know, that we’re going to lose money if the border is blockaded,” Mr. Dehaas said.

He also found there were other laws in place that could have been used to handle the situation without invoking the act. Applicants argued that other, similar situations had been handled using existing laws. For example, Alberta was able to deal with the border blockade in Coutts without Emergencies Act special measures.

Justice Mosley also found that actions taken as a result of the act being put in place, including freezing bank accounts, were unconstitutional. He said they were unjustified violations of charter section 2(b), pertaining to freedom of expression, and section 8, which protects against unreasonable search and seizure.

Although Justice Mosley’s decision came down against the use of the Emergencies Act, the justice noted that at the outset of the proceedings, he was leaning toward saying it was justified. He said he sympathizes with the position of the government officials who made the decision to use it.

“Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act,” he wrote. He said he now has the advantage of hindsight. He concluded that the use of the act “was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration.”

Impacts of the Ruling

The impacts of the decision will mainly be political, said lawyers including Mr. Dehaas and Mr. Wudrick.

“It’s probably very unwelcome for a government that’s desperately trying to find some good news. They’ve got enough bad news on their plate,” Mr. Wudrick said. The Liberals have seen a dip in the polls with the Conservatives on the rise.

In terms of public opinion on the matter, Mr. Wudrick said people who didn’t like the Freedom Convoy tend to support the use of the Emergencies Act and those who liked the Freedom Convoy are likely to be against the use of the act.

However, “I think that’s the complete wrong way to look at this,” he said. “This is really about whether a government acted within the law. ... It doesn’t matter what they’re using this tool for, if they’re breaking the law to use it, it’s still wrong.”

Constitutional lawyer Leighton Grey of Alberta compared the decision to other rulings against federal overreach, as Premier Smith did.

“It’s part of a series of legal decisions that are forming a body of law in this country, and I’m very pleased to see it,” Mr. Grey told The Epoch Times. “Governments—especially the federal government, but not exclusively them—have been really ruling by emergency,” he said.

“It seems as though everything today is an emergency, whether it’s COVID or it’s climate,” he continued. “That’s a very dangerous thing, because it grants to governments a power to basically rule by fiat.”

John Carpay, president of the Justice Centre for Constitutional Freedoms, told The Epoch Times that the decision will restrain officials who may consider such actions in the future.

“It’s a warning to governments in the future,” he said.