From the Brownstone Institute

BY BRUCE PARDY

Trucks blocked border crossings in Coutts, Alberta and at the Ambassador Bridge in Windsor, Ontario. Local and provincial law enforcement dealt with those protests and cleared the borders.

The Canadian government’s use of the Emergencies Act was unlawful. The Trucker Convoy did not constitute a national emergency. So said a judge of the Federal Court. The decision may help to pull Canada back from the brink of authoritarian rule.

The Federal Court decision contains four conclusions. Two prerequisites for invoking the Emergencies Act, said Justice Richard Mosley, were not met. Moreover, the two regulations issued under it were unconstitutional. Predictably, the government has promised to appeal. For the government to prevail, an appeal panel would have to overturn all four. But there is a wrinkle, which I will get to momentarily.

Between 1963 and 1970, the Front de libération du Québec (FLQ), a separatist organization in Quebec, committed bombings, robberies, and killed several people. In October 1970, they kidnapped British trade commissioner James Cross, and then kidnapped and killed Pierre Laporte, a minister in the Quebec government. In response, Pierre Trudeau’s government invoked the War Measures Act, the only time it had been used in peacetime. In the years that followed, the invocation of the Act became regarded as a dangerous overreach of government powers and breach of civil liberties.

The Emergencies Act, enacted in 1988 to replace the War Measures Act, had higher thresholds. It was supposed to be more difficult for governments to trigger. Before Covid and the trucker convoy, it had never been used.

The Freedom Convoy arrived at Parliament Hill in Ottawa on January 29, 2022 to protest Covid vaccine mandates. The truckers parked unlawfully in downtown Ottawa. They violated parking bylaws and probably the Highway Traffic Act. Authorities could have issued tickets and towed the trucks away. But they didn’t.

In the meantime, protests in other parts of the country emerged. Trucks blocked border crossings in Coutts, Alberta and at the Ambassador Bridge in Windsor, Ontario. Local and provincial law enforcement dealt with those protests and cleared the borders. By February 15, when Justin Trudeau’s government declared a public order emergency and invoked the Emergencies Act, only the Ottawa protests had not been resolved.

The government issued two regulations under the Act. One prohibited public assemblies “that may reasonably be expected to lead to a breach of the peace.” The other outlawed donations and authorized banks to freeze donors’ bank accounts. On February 18 and 19, police brandishing riot batons descended on the crowd. They arrested close to 200 people, broke truck windows, and unleashed the occasional burst of pepper spray. By the evening of the 19th, they had cleared the trucker encampment away. Banks froze the accounts and credit cards of hundreds of supporters. On February 23, the government revoked the regulations and use of the Act.

Governments cannot use the Emergencies Act unless its prerequisites are met. A public order emergency must be a “national emergency” and a “threat to the security of Canada,” both of which are defined in the Act. A national emergency exists only if the situation “cannot be effectively dealt with under any other law of Canada.” “Threats to the security of Canada” can be one of several things. The government relied upon the clause that requires activities “directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”

The trucker protests were neither a national emergency, Mosley concluded, nor a threat to the security of Canada.

There was no national emergency:

Due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. [Cabinet] cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces.…in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation…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.

A threat to the security of Canada did not exist:

Ottawa was unique in the sense that it is clear that [Ottawa Police Services] had been unable to enforce the rule of law in the downtown core, at least in part, due to the volume of protesters and vehicles. The harassment of residents, workers and business owners in downtown Ottawa and the general infringement of the right to peaceful enjoyment of public spaces there, while highly objectionable, did not amount to serious violence or threats of serious violence…[Cabinet] did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Act and the decision was ultra vires.

Nor were the regulations constitutional. The prohibition on public assemblies infringed freedom of expression under section 2(b) of the Charter of Rights and Freedoms. Empowering financing institutions to provide personal financial information to the government and to freeze bank accounts and credit cards was an unconstitutional search and seizure under section 8. Neither was justified, Mosley concluded, under section 1 of the Charter, the “reasonable limits” clause.

To prevail on appeal, the government would have to reverse all four conclusions. Justice Mosley did not make obvious errors of law. But there are a couple of odd bits. In particular, Mosley admits to doubts about how he would have proceeded had he been at the cabinet table himself:

I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law…

Which brings us to the wrinkle. In April 2022, Richard Wagner, the Chief Justice of the Supreme Court of Canada, gave an interview to Le Devoir. Speaking in French, he characterized the protest on Wellington Street in Ottawa, where Parliament and the Supreme Court are located, as “the beginning of anarchy where some people have decided to take other citizens hostage.” Wagner said that “forced blows against the state, justice and democratic institutions like the one delivered by protesters…should be denounced with force by all figures of power in the country.” He did not mention the Emergencies Act by name. But his comments could be interpreted as endorsing its use.

The government’s appeal will go first to the Federal Court of Appeal but then to the Supreme Court of Canada. Its chief justice appears to have already formed an opinion about the dispute. Having made his public comments, the chief justice should announce that he will recuse himself from the case to avoid a reasonable perception of bias. That too would help bring Canada back from the brink.