The Federal Court of Appeal is hearing a once-in-a-generation civil liberties case Feb. 4 and 5 — the appeal in the legal challenge to the Emergencies Act. This is the appeal of a landmark decision of the federal court from January 2024. In that lower court decision, Justice Richard Mosley sided with the legal charity, the Canadian Constitution Foundation, which had challenged Prime Minister Justin Trudeau’s invocation of that extraordinary legislation in response to the 2022 Freedom Convoy.
Justice Mosley found that there was no national emergency and no threat to the security of Canada, which are legal requirements built into the act to prevent it from being abused. He also found that the orders freezing bank accounts violated the constitutional right to be secure against unreasonable searches and seizures, and that the restrictions on protests violated the right to freedom of expression.
The decision was a blow to the Trudeau government, which announced its intention to appeal within minutes of the release of the nearly 200-page decision. The Trudeau government had spent over $2.2 million fighting the CCF in that case, only to lose on almost every measure. For the appeal, the government has hired new private-sector lawyers whose high hourly rates will be paid with taxpayer money.
This appeal will be heard by a three-judge panel in Toronto. The focus of the CCF’s argument to dismiss the appeal is the fact that the definition of “threats to the security of Canada,” which the Emergencies Act makes clear means the same thing that it means under the CSIS Act, was not met. Then-CSIS director David Vigneault had informed the government that the definition was not met, and cabinet failed to wait for an alternative assessment of the facts before invoking the act. Another focus of the appeal is the level of deference owed to cabinet in its decision to invoke the act. The government is claiming that cabinet essentially has unfettered discretion. This goes against the actual text of the Emergencies Act as well as the history and context of the legislation, which was enacted to ensure there were proper guardrails on the legislation so it could not be abused like its predecessor, the War Measures Act.
The Trudeau government’s decision to invoke this law, and its argument on appeal, shows wilful historic blindness. While Justin Trudeau is no constitutional scholar, the decision to invoke the Emergencies Act shows an unsettling ignorance of not just Canadian history but his own family history. The Emergencies Act was created to replace the War Measures Act, a piece of legislation that was abused by Justin Trudeau’s own father, Pierre Elliott Trudeau, when he was prime minister.
Trudeau Senior used the War Measures Act to suspend basic civil rights and liberties in the wake of the FLQ crisis. In contrast to the Freedom Convoy, which was a group of stubborn, noisy, but non-violent protesters on the steps of Parliament and at some border towns, the Front de libération du Québec crisis in 1970 involved bombings, kidnapping and murder. In response, Trudeau Sr. invoked the War Measures Act, allowing for police searches and arrests without warrants, and prolonged detentions without charges and without the right to see a lawyer. A few hours after the War Measures Act came into effect, almost 500 Quebecers were arrested and many more were searched without warrants. In the end, even in the context of actual violence, the use of the War Measures Act was an overreaction. The Duchaine Report concluded there were only 35 active members of the FLQ when the Quebec government had suggested the existence of thousands.
When the Emergencies Act was introduced to replace the discredited War Measures Act, it was designed intentionally to prevent abuse. To be used for public order emergencies, the threshold for use is especially high. It requires a “threat to the security of Canada,” which is defined to have the same meaning as the CSIS Act, which had been debated and passed by Parliament. This definition had been thoroughly vetted. So when CSIS director Vigneault found that there was no threat to the security of Canada, the federal government needed to pay attention. CSIS said no threat existed, and even confirmed this assessment after the cache of weapons was found at Coutts, Alta. — which was the only real “whiff of danger” during the entire Freedom Convoy. The Coutts cache was discovered through regular policing and arrests were made, and the CSIS threat assessment did not change. If Trudeau and his cabinet reached a different decision than CSIS, they needed to explain why. Instead they have hidden behind cabinet confidentiality, claimed they cannot disclose why they reached any different conclusion from CSIS, and demanded the public accept the use of this extraordinary legislation to freeze the bank accounts of Canadian protesters for unknown mysterious reasons.
The Canadian Constitution Foundation argued in federal court that this is not good enough, and the federal court agreed. For the sake of our country’s civil liberties, for transparency, and for government accountability, this decision must be upheld by the Federal Court of Appeal.
National Post
Christine Van Geyn is Litigation Director for the Canadian Constitution Foundation.