Judge rules that government decision to invoke Emergencies Act violated Charter

BY PAUL JUNOR

There have been many responses, reactions and concerns raised regarding the Federal government’s decision to invoke the Emergencies Act in response to the 2022 Freedom Convoy. There was much anticipation as to what would be the ruling after the Emergencies Act Inquiry in February 2023 found that the federal government was justified in invoking the act. Nevertheless: civil libertarians, parliamentarians, civil rights activists, lawyers and legal advocates have argued poignantly that the federal government was wrong.

On Tuesday, January 23^rd, 2024, Federal Court Justice Richard Mosley published a detailed ruling that found that the federal government’s decisions violated the Canadian Charter of Rights and Freedom. He wrote, “I have concluded that the decision to issue the Proclamation of the Emergencies Act) does not bear the hallmarks of reasonableness-justification, transparency and intelligibility – and was not justified.”

He observes that the implementation of the Act that resulted in the formation of a no-go zone in downtown Ottawa to remove demonstrators violated their freedom of expression. Furthermore, the decision to freeze the bank accounts of some of the protestors without examining the cumulative effects on other individual family members and joint account holders was problematic and troubling to some. It was a breach of their rights to secure against unreasonable search and seizures according to the Charter.

Justice Mosley notes further, “Someone who had nothing to do with the protests could find themselves without the means to access necessaries for household and other family purposes while the accounts were suspended. There appears to have been no effort made to find a solution to that problem while the measures were in effect.”

He disagreed with those who believed that there were reasonable grounds to invoke the Emergencies Act as a threat to the security of Canada as defined by law. He states, “The record does not support a conclusion that the Convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada. The harm being caused to Canada’s: economy, trade, and commerce, was real and concerning, but it did not constitute threats, or the use of serious violence to persons or property.”

Justice Mosley’s ruling was in response to four legal challenges that were launched by the Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF). They presented the case that the federal government overstepped its legal powers in its decision to invoke the Emergency Act and called for a judicial review.

It was on February 14^th, 2022, that the federal government made that decision in response to blockades in Ontario and Alberta that had impeded free flow of goods and services.

CCLA released a statement in response to Justice Mosley’s ruling, “Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy. They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws.”

Joana Baron, Executive Director of the CCF, responded to Justice Moseley’s ruling. She states, “The invocation of the Emergencies Act is one of the worst examples of government overreach during the pandemic and we are very pleased to see Justice Mosley recognize that Charter rights were breached, and that cabinet must follow the law and only use the act as a tool of last resort.”

Pierre Poilievre, leader of the Conservative Party tweeted on X (formerly Twitter). It reads, “He caused the crisis by dividing people. Then he violated Charter rights to illegally suppress citizens. As PM, I will unite our country for freedom.”

Chrystia Freeland, Deputy Prime Minister of Canada disagreed with the ruling. She states, “The public safety of Canadians was under threat; our national security, which includes our national economic security, was under threat. I was convinced at the time it was the right thing to do. It was the necessary thing to do.”