Goldstein: How the Liberals broke the law while claiming to defend it
· Toronto Sun
It’s easy to see why the Carney government wants to overturn the unanimous decision by a three-judge panel of the Federal Court of Appeal condemning the Trudeau government’s use of the Emergencies Act (EA) during the trucker convoy demonstrations in February 2022.
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The appeal court’s Jan. 16 ruling – upholding the 2024 judgment of Justice Richard Mosley that the government’s actions were unconstitutional and unlawful – is a devastating indictment of what the Liberal government did, reflecting many of the arguments made by the protesters.
The feds, having lost twice in court on this issue , are now appealing to the Supreme Court of Canada , saying they must have “the tools needed to protect the safety and security of Canadians in the face of threats to public order and national security.”
(In 2023, Justice Paul Rouleau, head of the public inquiry into the government’s use of the EA, concluded it was justified, but added he did so with reluctance, because the factual basis for its use was not “overwhelming,” and, “reasonable and informed people could reach a different conclusion.”)
The Supreme Court has yet to decide whether to hear the government’s appeal.
Appeal court ruling upholds Justice Mosley’s findings
As things stand, here are the conclusions of the appeal court’s ruling upholding Justice Mosley’s findings.
“The Federal Court of Appeal confirms that the federal government’s invocation of the EA was unreasonable and ultra vires (beyond their legal authority), and that it infringed paragraph 2(b) and section 8 of the Canadian Charter of Rights and Freedoms.”
“The government did not demonstrate that it had reasonable grounds to believe that a threat to national security, or a national emergency, existed within the meaning of the (EA), or that existing laws were unable to resolve the situation.”
“The symbolic location of protests at border crossings and in front of Parliament, disruptive though they were, did not fall outside the (Charter) protection of paragraph 2(b) (on freedom of expression). Because they criminalize(d) these protests, whether or not participants were breaching the peace, the (EA) Regulations infringed the protesters’ freedom of expression and were not justified under section 1 of the Charter (guaranteeing ‘the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’).”
“While the government had a pressing and substantial objective in enacting the Economic Order (a set of temporary financial powers enacted by the government under the EA), its implementation was ad hoc and fraught with confusion, requiring financial institutions to disclose the existence of property they had ‘reason to believe’ was owned, held or controlled by a ‘designated person’ without a warrant or specific procedures. Accordingly, the searches authorized by sections 5 and 6 of the Order were not reasonable within the meaning of Section 8 of the Charter (the right against unreasonable search and seizure) and were not justified under section 1 because they did not minimally impair the right to be free from unreasonable searches and seizures.”
“The most egregious problem with the Economic Order,” the court said, “is that personal banking information belonging to individuals who were suspected of having committed offences under the Regulations could be shared with the RCMP and CSIS without a warrant or any form of prior authorization.
“The risk of innocent individuals being wrongfully identified as ‘designated persons; could … have been reduced be ensuring that financial institutions had a reliable source of information regarding the activities of their customers, such that they were not expected to rely on news stories and the internet to decide whether their disclosure obligations had been triggered.”
The appeals court said the only evidence of a serious threat of violence during the trucker protest – the discovery of a cache of firearms and ammunition in Coutts, Alberta – was effectively dealt with under existing criminal laws, “for all intents and purposes before the Proclamation (of the EA) and there is no explanation as to how the Regulations enacted in its wake contributed in any way to restoring public order.”
Similarly, charges that were laid against protest organizers and demonstrators were made under the Criminal Code, without the need for the EA.
While the appeal court found “some protesters did breach the peace by blockading downtown Ottawa, disturbing the peace with incessant noise from truck horns, train-type whistles, late-night street parties, fireworks and constant megaphone-amplified cries of ‘freedom'” and that these protests were “undoubtedly disruptive and very annoying to residents of downtown Ottawa”, this could have been addressed through existing laws and better policing.
Invoking EA ‘also caught peaceable protesters’
Invoking the EA, the appeals court said, “did not just catch people involved in non-peaceful activities … they also caught peaceable protesters expressing their “dissatisfaction with the federal government’s Covid policies.”
“Such individuals would violate section 2 of the Regulations through their mere presence at a protest in a non-violent capacity … subject to enforcement actions as much as someone who parked their truck on Wellington Street, or otherwise engaged in conduct that could lead to a breach of the peace.”
The court found that while the Ottawa protests and highway blockades were “disturbing and disruptive” and damaging to the economy, they did not reach the level of a “threat to the security of Canada” as defined by the EA, nor was there any national threat.
The Canadian Civil Liberties Association, which along with the Canadian Constitution Foundation, successfully challenged the federal government’s invoking of the EA in court, said this did not mean it was endorsing tactics of trucker convoy protesters and that given the timelines and extent of the disruption, it agreed the police needed to dismantle the blockades.
“However … there was no ‘public order emergency’ as contemplated under the Act and certainly not one extended across the entirety of Canada. Existing laws could have – and should have – been used to address the situation, rather than the EA.”