The Liberal government unreasonably invoked the Emergencies Act to clear the convoy protests that gridlocked the capital city and border points nearly four years ago, the Federal Court of Appeal ruled on Friday.
The court dismissed the government’s appeal of a 2024 ruling which deemed former prime minister Justin Trudeau’s decision to use the legislation unlawful and infringed on protesters’ Charter rights.
“As disturbing and disruptive the blockades and the convoy protests in Ottawa could be, they fell well short of a threat to national security,” wrote the three judges on the appeal court.
The Federal Court was initially asked to review the government’s deeply divisive proclamation of a public order emergency by the Canadian Civil Liberties Association (CCLA), the Canadian Constitution Foundation and other groups.
In that 2024 decision, Federal Court Justice Richard Mosley, since retired, said the government’s decision lacked justification, transparency and intelligibility.
The government appealed. During a hearing last February, its lawyers argued the court downplayed violence with “hindsight bias on full display.” The government has long argued the protests posed a security threat and the measures it took under the Emergencies Act were targeted, proportional and temporary.
But the appeal court’s decision agreed with Mosley’s finding that cabinet did not have reasonable grounds to believe that a threat to national security existed and fell short of the legal threshold needed to invoke the act.
Canadian Civil Liberties Association executive director Howard Sapers told CBC’s Olivia Stefanovich that it’s ‘tremendously important for all Canadians’ that the Federal Court of Appeal ruled Ottawa’s use of the Emergencies Act to clear the 2022 convoy protest was unreasonable.
“There was no evidence that the lives, health or safety of the people living in Ottawa were endangered (as annoying, stressful and concerning as the protests were),” reads the court’s decision.
Howard Sapers, the CCLA’s executive director, called Friday’s decision “a massive and historic victory for the rule of law and the rights and freedoms of all Canadians.”
“While the extraordinary powers granted to the federal government through the Emergencies Act may be necessary in some extreme circumstances, they also can threaten the rule of law and our democracy,” he said.
“Could a government use the act again? Yes. Could it be an appropriate use of the act? Yes. Could it be an inappropriate use of the act? Sadly, that’s possible. But now at least there’s some precedent decision.”
A spokesperson for the minister of public safety said the government is reviewing the ruling and assessing next steps, which could include appealing to the Supreme Court.
“The government remains steadfast in its commitment to ensuring the safety and security of Canadians in the face of threats to public safety and national security,” Simon Lafortune said in a statement. “
How we got here
What began as a protest largely against vaccine requirements attracted thousands of people to the capital for weeks, many in trucks, who had a slew of grievances aimed at Trudeau and his government.
In the face of blaring horns, big-rig blockades and makeshift encampments, some Ottawa businesses temporarily closed, while many residents complained of noise pollution and diesel fumes.
Protesters, some of whom had brought bouncy castles and an inflatable hot tub, pushed back, arguing it was a largely peaceful demonstration.
Trucks and protesters also clogged some border crossings, including the key trade route to the United States via Windsor, Ont.
Trudeau’s government invoked the Emergencies Act on Feb. 14, 2022, giving law enforcement extraordinary powers to remove and arrest protesters and giving the government the power to freeze the finances of those connected to the protests.
It was the first time the law had been invoked since it replaced the War Measures Act in 1988.
Mosley also found the economic orders infringed on protesters’ freedom of expression “as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace.”
Friday’s court of appeal decision found that there was a “lack of rigour” in identifying people whose bank accounts were frozen, saying financial institutions were expected to rely on information from news or social media reports.
Definition of a national emergency questioned
One of the pillars of the legal challenge, and the public inquiry that came before it, centres around the definition of “threats to the security of Canada.”
Under the Emergencies Act a national emergency exists if the situation “cannot be effectively dealt with under any other law of Canada.” Further, a public order emergency can be declared only in response to “an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency.”
The government has argued that encompasses economic disruption as well.
The act defers to the Canadian Security Intelligence Service’s definition of such threats — which includes serious violence against persons or property, espionage, foreign interference or an intent to overthrow the government by violence.
Prime Minister Justin Trudeau appeared before the Public Order Emergency Commission and defended his decision to invoke the Emergencies Act to disperse anti-COVID-19 mandate protesters who had spent almost one month occupying Ottawa.
Then CSIS director David Vigneault testified during the 2022 public inquiry that he supported invoking the Emergencies Act, even if he didn’t believe the self-styled Freedom Convoy met his agency’s definition of a threat to national security.
The Federal Court of Appeal justices were not convinced by the government’s argument that a less stringent definition of “threats to the security of Canada” could be inferred when invoking the act.
They also didn’t accept Ottawa’s reasoning that rendering critical infrastructure unusable amounts to serious violence.
“This expansive interpretation … could stifle all kinds of protests and demonstrations that blockade pipelines, nuclear plants, railway lines and other kinds of infrastructure to advance a cause,” the decision noted.
Public inquiry came to a different opinion
A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government’s use of the Emergencies Act and came to a different conclusion in early 2023 than the subsequent legal challenges.
Rouleau concluded the federal government met the “very high” threshold needed to invoke the Emergencies Act, citing a failure in policing and federalism.
In his final report, Justice Paul Rouleau concluded that the government’s decision to use the act was ‘appropriate’ and pointed to a series of failures in the police response to the convoy protests.
“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote.
Rouleau, an Ontario Court of Appeal justice, did say he reached his conclusion with some reluctance.
“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming,” he said in statements he gave after his report was made public.
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