On Tuesday, the Federal Court ruled that Ottawa’s decision to invoke the Emergencies Act in February 2022 was unreasonable and unjustified.
“I find that the reasons provided for the decision to declare a public order emergency do not satisfy the requirements of the Emergencies Act and that certain of the temporary measures adopted to deal with the protests infringed provisions of the [Charter] and were not justified under section 1 of the Charter,” Justice Richard Mosley wrote in his decision.
The Freedom Convoy had its origins in a November 2021 decision by the Public Health Agency of Canada to require certain groups of foreign nationals, including truck drivers, to be fully vaccinated against Covid to perform their work duties.
This decision led to thousands of individuals and hundreds of vehicles from across Canada converging in Ottawa to protest the vaccine requirement, according to the decision. The demonstrators’ activities overwhelmed the capacity of local police and led to Cabinet invoking the Emergencies Act on February 14, 2022 to end the disruptions and blockades occurring across the country.
Unusually, the judge acknowledged that at the “outset of these proceedings” he had been “leaning to the view that the decision to invoke the [Emergencies Act] was reasonable. I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order.”
But the judge credited the two public interest litigants in the case, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, for presenting “informed legal arguments” that changed his position.
The judge accepted that the definition of “threats to the security of Canada” in the Emergencies Act must be interpreted with reference to the Canadian Security Intelligence Service Act. That act refers to four types of activities which can be considered threats to security, only one of which was considered relevant to the proceeding — the threat or use of acts of serious violence against persons or property.
The judge determined that the activities of the demonstrators in Ottawa did not amount to serious violence or threats of the same. He noted as well that the RCMP had arrested 11 individuals and seized a cache of weapons in Coutts, Alberta, using provisions under the Criminal Code and had not needed the Emergencies Act to act.
While the judge accepted that the demonstrators posed a “real and concerning threat” to Canada’s economy, trade and commerce — which had been one of Ottawa’s key justifications for invoking the act — he held that these threats did not pose security threats as defined in the Emergencies Act.
Cabinet’s decision ultimately failed to bear the “hallmarks of reasonableness” and was not justified given the factual and legal constraints that were required to be considered in declaring a public order emergency, the judge concluded.
The court’s ruling comes one year after a commission of inquiry led by former judge Paul Rouleau found the reverse — that Cabinet’s use of the Emergencies Act was “appropriate” and “a drastic move, but… not a dictatorial one.”
Judicial review is a process by which courts review the decisions of executive, legislative or administrative bodies to ensure they are fair, reasonable and lawful. Judicial review differs from appeals of court decisions, where a higher court reviews a decision of a lower court.
Speaking to reporters in Montreal after the court’s decision was handed down, Deputy Prime Minister Chrystia Freeland said “they respect very much Canada’s independent judiciary. However, we do not agree with this decision, and respectfully, we will be appealing it.”
“I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision,” she said.
This story was updated with additional reporting on January 24.
