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The Federal Court of Appeal is expected to give its decision Friday morning on whether the Liberal government unlawfully invoked the Emergencies Act to clear the convoy protests that gridlocked the capital city and border points nearly four years ago.
The appellate court has been reviewing a Federal Court decision that found the government’s 2022 decision to apply the never-before-used law was unreasonable and infringed on protesters’ Charter rights.
In that 2024 decision Federal Court Justice Richard Mosley wrote that while the protests “reflected an unacceptable breakdown of public order,” there “was no national emergency justifying the invocation of the Emergencies Act.”
Mosley said he reached his decision with “the benefit of hindsight” and a “more extensive record of facts and law” than the government had when it proclaimed a public order emergency.
The federal government swiftly appealed.
During a hearing last February, a lawyer for the federal government argued it was unfair for the judge to apply “20/20 hindsight” to find fault with the government’s decision.
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.
What began as a protest largely against vaccine requirements attracted thousands of people to the capital, many in trucks, who had a slew of grievances aimed at former prime minister Justin Trudeau and his government for weeks.
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 gave the government the power to freeze the finances of those connected to the protests.
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.”
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 — which was enacted in 1988 — 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 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. The government has argued it encompasses economic disruption as well.
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 government also cited the situation in the Alberta border town of Coutts, where a cache of weapons, body armour and ammunition were seized in the early hours of Feb. 14, as justification for invoking the act.
Mosley said the situation created by the protests did not meet the legal threshold.
“While these events are all concerning, the record does not support a conclusion that the convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada,” he wrote.
“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. “
Public inquiry came to a different opinion
A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government’s use of the Emergencies Act for weeks during the fall of 2022 and came to a different conclusion than Mosely.
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.
The Federal Court of Appeal is expected to publish its say on the matter around 11 a.m. ET.
