What Constitutes an Emergency Is "Not in the Eye of the Beholder"
Federal Court Finds Emergencies Act for "Freedom Convoy" Unconstitutional
Police in Ottawa
clearing Freedom Convoy protest under Emergencies
Act, February 19, 2022
The Federal Court of Canada issued a decision on January 23 that the Trudeau government's invocation of the Emergencies Act on February 14, 2022 in response to the Freedom Convoy violated the Charter of Rights and Freedoms and was therefore unconstitutional. This refers to the series of protests and blockades in Canada against COVID-19 vaccine mandates and restrictions which began in early 2022 during the COVID pandemic.
The ruling followed a judicial review of the government's invocation of the Emergencies Act, conducted by Justice Richard Mosley of the Federal Court. Justice Mosley accepted applications for a review of the Proclamation Declaring a Public Order Emergency, issued on February 14, 2022; the Emergency Measures Regulations and Order in Council PC 2022-108; and the Emergency Economic Measures Order made on February 15, 2022 from four parties. The Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) were granted public interest standing. Two applications for review from individuals were also approved from a retired police officer and a Canadian military veteran, both of whom participated in the Convoy and whose bank accounts and credit cards were frozen.
In his decision, Justice Mosley expressed sympathy for the federal government, stating that he might have made the same decision at the time. "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," he stated. Nonetheless, he concluded that the decision did not meet the threshold required by law to invoke the Emergencies Act.[1]
"I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness -- justification, transparency and intelligibility -- and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration. In my view, there can be only one reasonable interpretation of EA [Emergencies Act] sections 3 and 17 and paragraph 2c of the CSIS Act [Canadian Security Intelligence Service Act] and the Applicants have established that the legal constraints on the discretion of the GIC [Government in Council] to declare a public order emergency were not satisfied."[2]
In short, Justice Mosley did not accept the Trudeau government's assertion that what he concluded was a breakdown of public order met the test of a "national emergency." That is, he did not accept that the situation exceeded the capacity or authority of a province to deal with it and could not have been dealt with by enforcing existing legislation. He further rejected the government's argument of a "threat or use of acts of serious violence."
Justice Mosley concluded however that the Charter right to freedom of association had not been violated, because it protects "the freedom to form and maintain associations, not the activity itself." He also found no breach of the Charter right of peaceful assembly, stating that he agreed with the federal government that "gatherings that employ physical force, in the form of enduring or intractable occupations of public space that block local residents' ability to carry out the functions of their daily lives, in order to compel agreement [with the protesters' objective] are not constitutionally protected."
However, he concluded that the regulations which banned participation in public assemblies violated the Charter right to free expression, because they captured people who were not engaged in any illegal actions, but "who simply wanted to join in the protest by standing on Parliament Hill carrying a placard." He also found that the federal government had failed to meet an "objective standard" in making orders to financial institutions to freeze bank accounts and credit cards, and that the RCMP basically made it up as they went along, thus breaching the Charter prohibition against unreasonable search and seizure.
Deputy Prime Minister Chrystia Freeland responded quickly to the findings of the Federal Court, stating that the government would appeal the decision. The appeal was subsequently filed on February 23. CBC News reported that in the appeal the federal government argues that the federal court applied the "reasonableness standard" of the Charter "in an incorrect manner" and that it adopted an "overly narrow articulation" of the Charter.
The decision of Justice Mosley for the Federal Court is certainly a rebuke of the Trudeau government's use of its police powers which are, by definition, above the rule of law. It is thus understood that the reasons a government gives of what constitutes an emergency must have a material basis and be persuasive for a government to invoke police powers -- which are tantamount to declaring a state of exception and entail the suspension of civil liberties and other draconian measures and are thus above the law.
The published decision includes the memo to Cabinet urging it to invoke the Emergencies Act. Even in its very heavily redacted form made available to the public, it is clear that powerful private interests and pressure from the Biden administration were directing the decision-making. This includes the definition of "national security" as including transportation and energy corridors and supply chains to feed the U.S. economy and war machine.
There was never any attempt to
respect freedom of speech and have a
rational national discussion about the measures taken by the federal
government during the COVID pandemic or why violence was the chosen
method to deal with serious differences which arose over COVID mandates
and
restrictions.
During the COVID pandemic, Canadians rose as one to fight on the front lines in the health care sector, in senior's homes and within the educational institutions and the measures they proposed were treated with utter contempt and dismissed despite calling front line workers heroes. Industrial, transportation, utility and other workers in the food industry who kept the country running were not even acknowledged. The demand of certain sections of the ruling class to criminalize the fight of any section of workers for their rights prevailed because it disrupted the aim of the rulers to make maximum profits no matter what and ensure the functioning of the war economy, one reason the Convoy was targeted. Their criminalization of speech and conscience, and actions emanating from it were the greatest casualties. Workers were forced to work in unsafe and untenable conditions due to years of the anti-social offensive coupled with losses from COVID-19 which especially made the health care sector very short staffed.
Health care workers
protest attacks on rights and working conditions during COVID-19,
Kenora,
August 27, 2020
Governments which base their decisions on what they call a rules-based system indulge their own prejudices and beliefs and then blame others for what they themselves do. Self-serving concerns are at the centre of decision-making while the rulers declare that they are protecting Canadian values, national security, the economy and so on. Far from uniting contending factions behind what are called national interests, the contradictions fester and violence is looked at as the only recourse.
Following the decision of the Federal Court finding the use of the Emergencies Act unconstitutional, the CCLA issued a press release titled, "Emergency is Not in the Eye of the Beholder: Federal Court Grants Victory to CCLA in Emergencies Act Challenge."
"From the moment the Emergencies Act was invoked, the CCLA raised our concerns," the press release said. "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. The threshold for invoking the Emergencies Act is extremely high. The government must demonstrate that there is an emergency arising from threats to the security of Canada and that that emergency truly has a national scope. The Federal Court agreed that this threshold was not met.
"The CCLA stood up to the government's use of the Emergencies Act and challenged the government in court. The Federal Court's decision sets a clear and critical precedent for every future government."
The CCF Executive Director Joanna Baron said the decision is good news for all Canadians. "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."
CCF Litigation Director Christine Van Geyn said she was thrilled with the decision. "These were very detailed reasons and a complete vindication of the position of civil liberties organizations who viewed the invocation of the Emergencies Act as illegal, unjustified and unconstitutional," she said. "We know the government has said that they plan to appeal, and with these reasons they now have a mountain to climb. We look forward to the fight."
Chris Barber, a trucker from Swift Current, Saskatchewan who owns a small independent trucking business and was one of the main organizers of the Freedom Convoy has launched a suit against the federal government for using the Emergencies Act to freeze his bank accounts. In his statement of claim, Barber states that the federal government's unprecedented move to invoke the Act constituted an abuse of power.
Barber's personal and business accounts were frozen without notice the day after the Emergencies Act was declared. He could not access money for daily living expenses such as food, fuel or medicine, and his salary and business revenue payments were going into frozen accounts which he could not access. According to the lawsuit, Barber states that he is still being rejected for business funding applications and has been told his bank accounts will be "marred indefinitely."
Barber and fellow organizer Tamara Lich were arrested on February 17, 2022, charged with mischief, obstructing police, counseling others to commit mischief and intimidation. Their lawyers point out that organizing a protest is not an illegal activity, and is protected under the Charter. In a press conference following Justice Mosley's decision, Barber also contested baseless media and government portrayal of the Freedom Convoy and its participants as law breakers and dangerous.
The Trudeau government's response to Justice Mosley's ruling indicates that it is going to continue defending the arbitrary use of executive powers to achieve the self-serving agenda of Canadian and foreign elites. This is coupled with a series of bogus "public consultations," surveys and polls to fabricate justifications for revising the CSIS Act which at present contains the definition of what constitutes a threat to national security which must be met to invoke the Emergencies Act.
While rejecting the government's claim of "serious violence" being committed, Justice Mosley himself, in his decision, suggested that the option of revising the definition of what constitutes a threat to national security was open to the government. He stated:
"It may be that Parliament will wish to revisit the question of whether the CSIS Act definition, which serves the several purposes of that statute, adequately covers the different harms that may result from an emergency situation when they may fall short of 'serious violence' to property. This Court can only apply the law as it finds it. It has no discretion to do otherwise...."
Justice Mosley reached a conclusion different to the one reached earlier by Justice Paul Rouleau in his Report of the Public Inquiry into the 2022 Public Order Emergency, released February 17, 2023. Justice Rouleau was appointed Commissioner of the Public Order Emergency Commission (POEC) into the invoking of the Emergencies Act enforced from February 14-23, 2022, and the measures taken for dealing with the emergency. The Order in Council 2022-0392 required that the report of the Public Inquiry be laid before each House of Parliament by February 20, 2023.
Rendering his conclusion, Justice Rouleau said that invoking the Emergencies Act was justified. However, in his final report, he also recommended that the legislation be revised to provide a new definition of what constitutes a public order emergency. He suggested that the definition no longer be coupled with the CSIS Act definition of a threat to national security. While he did not make specific recommendations regarding the CSIS Act, he stated, "The evidence presented during both the factual and policy phases of the Commission show that there is a need to consider whether Canada's national security and intelligence system is properly suited to modern realities." Further, Rouleau made a number of recommendations concerning the need to redefine the national interest and a public order emergency with the aim of protecting trade routes, supply corridors and critical infrastructure.
On the face of it, it looks as if Mosley and Rouleau reached different conclusions. Rouleau tried to square a circle by accepting the government's definition of what constitutes a national emergency. At the same time, he suggested that the law be "updated" as to what constitutes the national interest and a public order emergency. Mosley said the law is the law and if this is what you want to do, and perhaps need to do, then you should change the law.
In essence,
however, in the name of ensuring that current laws
address current realities, both justices endorse current practice of
using government majorities in Parliament to enact laws which lift all
hitherto accepted limits on ministerial powers. None of it addresses
the fundamental issue
raised by the CCLA that what constitutes an emergency is "Not in the
Eye of the Beholder." It does not address the fact that the more
governments give themselves arbitrary powers to achieve self-serving
aims of supranational elites, the more the measures they take and the
means they use to achieve
them silence discussion, criminalize opinion and disinform the
coherence of the body politic so as to make sure there is no organized
opposition to the conditions elites are imposing on society.
While Justice Mosley's decision seems to contradict that of Justice Rouleau, both provide justification for the use of arbitrary emergency powers, and both decisions prepare conditions to enact more draconian legislation whose aim is to enable a war government to be seen to act within the law, even as the rule of law lies in tatters.
The significance of the ruling by Justice Mosley is that
across the
country all of us need to discuss these matters, especially how to
fight to provide our rights with a guarantee on the basis of modern
definitions. Despite the rebuke to the government, it is clear that for
the working class and
people, their security lies in their own fight for the rights of all.
Notes
1. Section 3 of the Emergencies Act reads:
National emergency
For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that
(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
Section 17 reads:
Declaration of a public order emergency
17 (1) When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.
(2) A declaration of a public order emergency shall specify
(a) concisely the state of affairs constituting the emergency;
(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and
(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.
2. Section 2(c) of the CSIS Act identifies, as a threat to the security of Canada:
- activities within or relating to Canada 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 within Canada or a foreign state....
This article was published in
Volume 54 Number 22 - March 27, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54221.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca