Ottawa Appeals Court Decision Finding Its Use of Emergencies Act Was Unreasonable

Police move in to clear downtown Ottawa near Parliament hill of protesters after weeks of demonstrations on Feb. 19, 2022. The Canadian Press/Cole Burston

Ottawa has filed to appeal a Federal Court decision that found its invocation of the Emergencies Act in response to the 2022 Freedom Convoy protests was unjustified.

The government is asking the Federal Court of Appeal to overturn a January decision that found the government’s use of emergency law led to the infringement of constitutional rights.

The federal Liberals invoked emergency powers in response to thousands of protesters who entrenched themselves in downtown Ottawa for weeks and spinoff protests that blockaded border crossings.

The Canadian Civil Liberties Association and others argued in court that Ottawa ushered in the emergency measures without sound statutory grounds.

Federal Court Justice Richard Mosley’s decision, which the Liberals immediately promised to appeal, differed from the conclusion of the Public Order Emergency Commission.

That inquiry found the government met the very high legal standard for using the law.

In the documents filed Feb. 22, the government outlined arguments including that the Federal Court erred by reviewing the decision to invoke the act “with the benefit of hindsight” and based on information not available to the government in 2022.

The court also made a mistake in substituting its own opinion about the decision the government should have made, it said.

Instead, it said, the court should have looked at whether it was reasonable for the government to “decide that it had reasonable grounds to believe” that a public order emergency existed and needed to be dealt with through special temporary measures.

The court was also wrong to decide the invocation of the Emergencies Act was a violation of the Canadian Charter of Rights and Freedoms, the government argued.