Federal Court finds Emergencies Act invocation violated rights, was unreasonable

OTTAWA: The Canadian Constitution Foundation (the “CCF”) is thrilled that Justice Mosley of the Federal Court of Canada has accepted the CCF’s arguments that the invocation of the Emergencies Act in response to the Freedom Convoy protests was unreasonable and violated the Charter rights to expression and security against unreasonable searches and seizures.

In a judicial review decision released Tuesday, Justice Mosley agreed with the CCF that Cabinet’s invocation of the Act in February 2022 was not reasonable for two reasons.

First, Cabinet did not properly account for the requirement under section 3 of the Act that emergencies only be declared where a situation cannot be effectively dealt with under any other law of Canada.

“Due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort,” Justice Mosley wrote. “The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces.”

Second, the requirement of reasonable grounds to believe that Canada faced “threats to the security of Canada” had not been met. Section 17 of the Act states that “threats to the security of Canada” has the same meaning as it has under section 2(c) of the Canadian Security Intelligence Service Act (the “CSIS Act”), which includes threats like terrorism, espionage and attempts to overthrow the government. Justice Mosley said that this does not include the “economic disruption that resulted from the border crossing blockades, troubling as they were.”

When cross-examined by CCF Counsel Sujit Choudhry, Prime Minister Justin Trudeau said that Cabinet made the decision that the definition of threats to the security of Canada existed based on a novel legal opinion. The prime minister refused to make that legal opinion public.

“My preliminary view of the reasonableness of the decision may have prevailed following the hearing due to excellent advocacy on the part of counsel for the Attorney General of Canada had I not taken the time to carefully deliberate about the evidence and submissions, particularly those of the CCLA and CCF,” Justice Mosley wrote.

Justice Mosley found violations of Charter sections 2(b) and 8, and said that those violations were not minimally impairing and therefore not justified under section 1 of the Charter, the reasonable limits clause.

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 added. “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.”

The CCF would like to thank its excellent counsel, Sujit Choudhry of Hāki Chambers and Janani Shanmuganathan of Goddard & Shanmuganathan, for their excellent advocacy on this file.

“We are pleased that the Court accepted our arguments that the public order emergency was illegal, and that the emergency measures violated the Charter,” Mr. Choudhry said.

Ms. Shanmuganathan added: “It was also nice to see Justice Mosley recognize the efforts of counsel and highlight the value of public interest litigants such as the Canadian Constitution Foundation. In his words, the case may not have turned out the way it has without our involvement.”

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EMERGENCY IS NOT IN THE EYE OF THE BEHOLDER: FEDERAL COURT GRANTS VICTORY TO CCLA IN EMERGENCIES ACT CHALLENGE

TORONTO — The Federal Court of Canada has just issued its decision allowing the Canadian Civil Liberties Association (CCLA)’s challenge to the federal government’s invocation of the Emergencies Act. The CCLA’s challenge was joined with that of a few other parties.

Noa Mendelsohn Aviv, Executive Director and General Counsel of the CCLA, made the following statement:

The Court concluded that:

The federal government’s decision to declare a public order emergency under the Emergencies Act in early 2022, as well as the associated regulations that it enacted, were unreasonable and were not justified on the facts or the law.

The regulations violated the Charter right to freedom of expression and the right to be secure against unreasonable search or seizure.

From the moment the Emergencies Act was invoked, the CCLA raised our concerns.

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.

We are deeply grateful to our excellent legal team of Ewa Krajewska and Brandon Chung at Henein Hutchison Robitaille LLP for their superb legal work and dedication to this challenge.

We will have more to say in the coming days as we fully digest the contents of the decision.

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