Inside a spectacular courtroom at the Supreme Court of Canada building on April 3, Justice Richard Mosley of the Federal Court began hearing arguments from national civil liberties organizations about why the Government of Canada’s invocation of the Emergencies Act last year was illegal and unconstitutional. The Federal Court is now the last guardrail of accountability for the Justin Trudeau government’s use of the extraordinary and powerful legislation.
The report by Commissioner Paul Rouleau for the Public Order Emergencies Commission, released in mid-February, amounted to a massive and disappointing exercise of deference to the Liberal government. The Parliamentary Committees investigating the use of the Emergencies Act face inherent procedural and political limits to their effectiveness. And Canada’s ostensible fourth estate, the mainstream media, have shown a disturbing level of spoon-fed acceptance of the government’s rationale for invoking the successor to the War Measures Act.
Justice Mosley heard the case in the Supreme Court of Canada’s imposing grey edifice perched on the cliff overlooking the Ottawa River. There were 14 counsel present as well as members of the public, so for space reasons the hearing was held in an impressive room just to the side of the Supreme Court’s main chamber. The courtroom is two-and-a-half storeys tall, with detailed wood panelling, two-storey-high gold curtains and plush red carpeting. The ceiling is coffered with detailed rosettes. The wooden benches for the public are tortuously uncomfortable.
A trucker, yes, but a Freedom Trucker? Federal Court Justice Richard Mosley heard the case challenging the use of the Emergencies Act to crush the Freedom Convoy protests in February 2022. Mosley revealed that as a young man he had worked as a commercial trucker. (Sources of photos: (left) Balfour/www.fct-cf.gc.ca; (right) The Canadian Press/Sean Kilpatrick)
Freezing rain pummelled the leaded windows on the last day of the hearing. During the break, counsel lamented their cancelled flights out of Ottawa. There was thunder and lightning, perhaps an ominous portent, although no one was quite sure of what. Justice Mosley had surprised the court on the second day of hearings by telling those present, and the hundreds observing online via live stream, that he has a Class A trucker’s licence. For a period as a young man, he told those listening, he had worked as a commercial trucker in southern Alberta. The irony, he said, was that he was probably the only one in the hearing room, in a case about the truckers’ Freedom Convoy, who had ever actually worked as a trucker.
The applicants in the judicial review included two national civil liberties organizations: the Canadian Constitution Foundation (CCF) and the Canadian Civil Liberties Association (CCLA). There were also individual litigants who had been directly involved in the protests, including some who had their bank accounts frozen by the Emergency Economic Measures Order enacted under the Emergencies Act. Another group was also represented, the Canadian Frontline Nurses.
The applicants sought to convey two major themes over the three days of arguments. First was that it was unreasonable for Prime Minister Trudeau and his Cabinet to invoke the Emergencies Act because its legal standards were not met. They did not have reasonable grounds to believe a threat to the security of Canada existed, and the requirement that the law only be used as a “last resort” was not met. The second line of argument was that the special regulations created under the Emergencies Act violated the Canadian Charter of Rights and Freedoms. These regulations included a national prohibition on assemblies that “could lead to a breach of the peace” as well as the requirement that banks freeze accounts and share customer information with police without a warrant.
The Government Tried to Prevent this Hearing
The approach taken by the four lawyers representing the Attorney General of Canada was breathtaking. They began the hearing by arguing that the case should not be heard at all. This, they claimed, was because the case was moot, and because all applicants except the two individuals who had had their bank accounts frozen lacked standing to even bring the case. In particular, the public interest organizations should be excluded from the hearing. The Attorney General argued that the emergency had been revoked more than a year ago and so any court declaration concerning its merits would have no practical utility.
It is shocking that the first two hours of the hearing on a powerful and never-before used law were spent by the government saying, in effect, ‘Nothing to see here.’
To accept such a line of argument would make a government’s use of this powerful legislation, which acts as a de facto amendment to the Canadian Constitution, evasive of any review. During a back-and-forth with the government’s lawyers, Justice Mosley asked if there is not some value in knowing how terms in the Emergencies Act should be interpreted, since the law has never been used before and has never been legally interpreted.
The Attorney General’s representatives replied that there is no value in a legal interpretation because we don’t know how the facts of a future case may play out. A future emergency could last much longer and a judicial review in such a case could happen in real time, so the court should defer to a future scenario and not bind a future court with any legal interpretation. This argument is deserving of serious scepticism; if accepted, the practical result would be that declarations of emergency would almost always be evasive of review.
Quash these hearings: Civil liberties groups argued that Prime Minister Justin Trudeau’s invocation of the Emergencies Act was unreasonable, illegal and unconstitutional; lawyers sent by Justice Minister David Lametti (pictured) argued that the case should not be heard at all. (Source of right photo: Government of Canada)
Justice Mosley told the parties he would reserve a decision on mootness and so the court proceeded with the three days of hearings on the merits. But it is shocking that the first two hours of the hearing on a powerful and never-before used law were spent by the government saying, in effect, “Nothing to see here.”
It was Unreasonable for Cabinet to Invoke a Public Order Emergency
On the merits, the Attorney General addressed the dispute over the meaning of the term “threats to the security of Canada,” which is a part of the threshold for invoking a public order emergency. The Emergencies Act imports the definition of this term from the Canadian Security Intelligence Service Act, and CSIS in this case had a very different interpretation of this term than Cabinet did. Quite notably, CSIS did not believe a threat to the security of Canada existed, and briefed Cabinet on that assessment. But strangely, Cabinet reached a different conclusion, that there was such a threat, and decided to declare a public order emergency.
This question formed the centre of the Public Order Emergencies Commission, and it was at the heart of this hearing as well. The Attorney General had a mountain to climb. In the first two days of the hearing, the CCF and CCLA went over the legislative history that led to the incorporation of the CSIS Act definition of “threat to the security of Canada” in the Emergencies Act. When debating the legislation in the House of Commons in 1987, Perrin Beatty, the Emergencies Act’s sponsor, explained that the CSIS Act definition had recently been debated and received Parliament’s blessing.
The Emergencies Act draws its definition of “threats to the security of Canada” from the act that created the Canadian Security Intelligence Service (left); notably, CSIS told the Cabinet it did not think the truckers’ protest met the threshold, and nobody else in government provided a contrary assessment. (Source of right photo: The Canadian Press/Cole Burston)
Parliament’s decision to incorporate the CSIS Act definition of “threats to the security of Canada” in the Emergencies Act was a deliberate choice to rely on a definition that had been exhaustively scrutinized by Parliament in the recent past. The CSIS understanding of whether a threat to the security of Canada exists is weighty. While it is perhaps short of determinative, if a federal Cabinet wish to depart from the CSIS assessment they must provide a credible explanation of why they are doing so in order for that departure to be reasonable.
The CCLA and CCF argued that Trudeau’s Cabinet lacked that explanation in this case. For one thing, it seemed apparent that the government did initially believe more was necessary to justify departing from CSIS’s assessment and invoking a public order emergency. In a widely-reported-upon memo from the Clerk of the Privy Council to Trudeau, the Clerk gave advice about invocation to Trudeau, relying on various inputs from different government departments. In that memo, the Clerk wrote that the government would prepare an additional threat assessment given that CSIS said there was no threat to the security of Canada. But no additional threat assessment was ever prepared.
The government’s explanation before the Rouleau Commission – and again before Justice Mosley – was to argue that even though the memo said an additional threat assessment would be prepared, the Clerk of the Privy Council didn’t really mean it, and none was required. But if a government is going to depart from CSIS’s assessment it must show why or that departure is unreasonable. The government’s failure to produce this assessment, which the evidence shows the Clerk of the Privy Council (Canada’s top bureaucrat) initially believed was necessary, makes Cabinet’s decision to invoke the Emergencies Act against the truckers’ protest in Ottawa unreasonable, and therefore illegal.
Another crucial area lacking justification concerns the so-called “last resort” clause. This is a statutory requirement specifying the Emergencies Act can only be invoked if there are no other laws available to deal with the situation. Section 58 of the Emergencies Act requires the government to explain how and why the Emergencies Act is the last resort. The Trudeau government’s explanation tabled in Parliament for invoking the Act reveals how little thought it had put into this requirement.
The government simply stated that the situation “cannot be dealt with under the law of Canada.” This half-sentence rephrases an assertion; it does not come close to furnishing an explanation. The common law of judicial review of any decision maker, including Cabinet, requires the decision maker to provide a real and genuine analysis of why the statutory criteria were met. Accordingly, the government’s determination that the last resort clause was met was unreasonable.
Demanding Deference Worthy of a Dictatorship
The Attorney General’s response to this mountain of evidence was to assert that Cabinet is deserving of a special and heightened level of deference. At the Federal Court hearings, the Attorney General argued that Cabinet is an apex decision-maker; accordingly, its authority is almost unlimited and, in particular, mostly unconstrained by the language of the Emergencies Act. The mere assertion by Cabinet that it believes itself to be acting reasonably is itself all that is required. The Attorney General argued that the decision to invoke the Emergencies Act was “quintessentially executive in nature, unconstrained” and that its decisions should be considered “very difficult to set aside.”
“A friendly dictatorship” is what Globe and Mail columnist Jeffrey Simpson (left) once called Canada’s system of government, given how much authority rests in the hands of the Prime Minister and Cabinet (right). At the recent Federal Court hearing, Lametti’s lawyers were demanding even more. (Source of right photo: pm.gc.ca)
Canada’s brand of Parliamentary democracy already grants enormous authority to the executive. Columnist Jeffrey Simpson famously called Canada’s system of government a “friendly dictatorship” that places more power in the hands of the Prime Minister than any other democracy. The Attorney General’s position that courts owe deference to Cabinet for the mere fact that the decision was made at the “apex” of government is a shocking claim that would create a dangerous precedent and erase one of the few checks and balances in our system: judicial review by the courts.
It cannot be that just because the decision maker is Cabinet, it is automatically deserving of a special, heightened degree of deference – deference so broad as to allow it to ignore the clear wording of a law. It is not the decision maker that determines the deference the same decision maker is due for reasonableness; that would make the decision maker a law unto itself. It is the statutory language, which in this case has clear criteria.
Economic harm cannot possibly be what Parliament intended when creating the definition of threats to the security of Canada and linking these to the CSIS Act. To use that as part of the basis for invoking a public order emergency is unreasonable.
The Attorney General also doubled down on the disturbing claim made by Deputy Prime Minister Chrystia Freeland in testifying before the Public Order Emergency Commission that threats of economic harm constitute a “threat to the security of Canada.” Freeland took the position that Canada’s security is built on economic security, both as a country and for individuals, and that a threat to Canada’s economy is a threat to our national security. Her claim was challenged on cross-examination by lawyers for the CCF and CCLA, and even prompted the CCLA to follow up with a press release stating that, “The Emergencies Act and the CSIS Act do not contemplate economic harm as a national emergency.”
Yet during this month’s Federal Court hearing, the Attorney General continued to make this claim, arguing that cutting off crucial supply chains could also lead to serious unrest and violence. The Attorney General suggested that blocking borders causes the same harm as physical damage to infrastructure. The associated potential shortages of food and medicine could cause harm to Canadians and to Canada’s international reputation.
It is dangerous reasoning to say that economic harm is a form or threat of “violence” that justifies a federal government declaring a public order emergency. Think of how this might be applied in other protests, labour strikes or pipeline protests in particular, where economic harm is precisely the goal. Economic harm cannot possibly be what Parliament intended when creating the definition of threats to the security of Canada and linking these to the CSIS Act. To use that as part of the basis for invoking a public order emergency is unreasonable.
Charter Arguments
The applicants argued that the restrictions on assembly and the financial measures allowing for the sharing of information between banks and police and the freezing of accounts violated various sections of the Charter in unjustified ways. The assembly restrictions in the Emergency Measures violated the right to freedom of assembly (Charter section 2(c)) and freedom of expression (section 2(b)), and the Economic Measures violated the right to be free from an unreasonable search and seizure (section 8). They also violated section 7, the right to life, liberty and security of person, because they came with a term of imprisonment of up to five years.
The Emergency Measures restricting assemblies were drafted so broadly they captured people who did not create any blockades, had no intention to create a blockade and might not even support blockades. They prohibited assembly that could “reasonably lead” to a breach of the peace, as well as travelling to such assemblies or materially supporting them. They covered people bringing food or water to a protest, or walking to a protest that hadn’t even yet begun. This breadth captured Freedom Convoy truck drivers parked on Wellington Street in Ottawa who refused to move, but also could capture a person standing peacefully on Parliament Hill holding a sign, even if they opposed the disruption of traffic. And that peaceful protester could risk five years’ imprisonment.
If the Trudeau government had a valid concern about gatherings, the associated measures could have been more narrowly tailored. Instead of prohibiting assembling where a blockade could happen, regulations could have prohibited actual blockades. This was the approach taken by the Ontario and Nova Scotia governments.
The CCF and CCLA also argued that section 8 of the Charter was violated by the Emergency Economic Measures Order. The disclosure provisions required the sharing of information between banks and police and allowed for the freezing of bank accounts. This likely met the legal definition of a seizure, as it left bank accounts and credit inaccessible to the account owners. But at a bare minimum, this was a search, and people have a reasonable expectation of privacy about their financial accounts.
Emergencies Act measures restricting assemblies were so broad they could put a person peacefully holding a sign on Parliament Hill – or even someone bringing that person food or water – at risk of imprisonment. (Source of photo: djackson539/Shutterstock))
The Economic Measures were directly tied to the Emergency Measures. As stated, the Emergency Measures prohibited people from participating in, aiding or travelling to an assembly where a breach of the peace could reasonably happen. This obviously captured more than just people who participated in blockades, as the Attorney General claimed. Meanwhile, the Economic Measures were not limited to those participating in blockades, but covered any “designated person.” Consequently, these regulations would permit the disclosure of banking information to police about people just standing on Parliament Hill holding a sign, or walking to the area to hold a sign, or even giving water to someone walking to Parliament Hill to hold a sign. They were unreasonably broad.
The Federal Court case involves never-before-considered legislation that is incredibly powerful. It is what lawyers call ‘sui generis’ – of its own class. The decision requires careful study of the Parliamentary intent around the Emergencies Act as well as extensive case law on statutory interpretation, the standard of review and the Charter.
The Attorney General claimed the disclosure of so-called “simple banking information” did not constitute a serious violation of privacy. This cannot possibly be correct. Banking information is deeply personal. It includes information about types of accounts, how much money is in them and what is being done with the money. The Economic Measures were not time-limited, but instead demanded disclosure of all past and future transactions. This is a tremendous amount of information that provides a picture of the person’s life. It reveals how they spend their money, or how they waste it. It reveals whether they see a therapist, and who the therapist is. It identifies the types of organizations they support. Where they eat lunch, have coffee, or go to the gym. Or how much they might spend on medications.
The Economic Measures instructed banks to provide all this information to the police, without a warrant. This is profoundly intrusive and goes to what the Supreme Court has described as the “biographical core” of section 8 of the Charter. Imagine how you might feel if a friend or neighbour could look through your bank statements. Let alone if the police and the government could. And under the Trudeau government’s use of the Emergencies Act, all of this information was obtained and shared with police without a warrant.
Mosley’s Ruling
The outcome of this case will be studied by law students and politicians for decades if not generations to come. Justin Trudeau’s invocation of the Emergencies Act will have longstanding impacts, just as his father’s invocation of the War Measures Act did.
The Federal Court decision will not come soon. At the conclusion of the hearing Justice Mosley warned the parties not to “hold your breath” for his ruling. The case involves never-before-considered legislation that is incredibly powerful. It is what lawyers call sui generis – of its own class. The decision requires careful study of the Parliamentary intent around the Emergencies Act as well as extensive case law on statutory interpretation, the standard of review and the Charter. Not only that, but the decision will need to be translated before it can be released, and no doubt Justice Mosley will want to minimize grounds for appeal. But this decision is worth waiting for. It will guide courts and politicians in future emergencies, both real and – perhaps even more importantly – imagined.
Christine Van Geyn is litigation director at the Canadian Constitution Foundation.
Source of main photo: The Canadian Press/Justin Tang.
