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Federal court rules Emergencies Act invocation 'not justified'

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The federal government says it plans to appeal a ruling by the Federal Court stating that its use of the Emergencies Act to shut down the so-called Freedom Convoy protests in Ottawa two years ago was “not justified.”

Representatives of both the Canadian Constitution Foundation and the Canadian Civil Liberties Association — the two groups who brought the case to the Federal Court — posted about the ruling on X, formerly known as Twitter.

The protests gridlocked downtown Ottawa for three weeks and blockaded some key Canada-U.S. border crossings in early 2022 in opposition to COVID-19 vaccine mandates. 

 

On Feb. 14, 2022, the federal government invoked the Emergencies Act for the first time in its history, arguing at the time that the national security risks stemming from the protests justified its use.

The move allowed the federal government to enact wide-sweeping but temporary powers to help officials crack down on protesters’ access to funds, grant the RCMP jurisdiction to enforce local laws, designate critical infrastructure and services, and impose fines and imprisonment on participants who refused to leave the protest zone.

“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration,” stated Federal Court Justice Richard Mosley.

Mosley added that “there can be only one reasonable interpretation” of the Emergencies Act and CSIS Act, and that he believes “the legal constraints on the discretion of the GIC to declare a public order emergency were not satisfied.”

Mosley also stated that, factoring for the definition of a “national emergency” under the Act, “there was no national emergency” to justify its use, and that “the decision to do so was therefore unreasonable” and beyond the powers of the law.

“This case was not about the constitutionality of the (Emergencies Act) but, rather, how it was applied in this instance,” Mosley added.

Canadian government to appeal: Freeland

At a press conference from the cabinet retreat in Montreal on Tuesday, Deputy Prime Minister Chrystia Freeland said the federal government plans to appeal the decision.

“I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision,” she said. “The public safety of Canadians was under threat. Our national security, which includes our national economic security, was under threat.”

“It was a hard decision to take,” she added. “We took it very seriously after a lot of hard work after a lot of careful deliberation. We were convinced at the time — I was convinced at the time — it was the right thing to do, it was the necessary thing to do.”

“I remain and we remain convinced of that,” she continued.

The public inquiry led by Commissioner Paul Rouleau last year — which heard from more than 70 witnesses over six weeks in addition to the submission of more than 7,000 documents — found Prime Minister Justin Trudeau met the threshold to invoke the act.

Conservative Leader Pierre Poilievre also weighed in on the decision on X, writing that “Trudeau broke the highest law in the land with the Emergencies Act.”

“He caused the crisis by dividing people,” Poilievre wrote, adding that if elected prime minister, he will “unite our country for freedom.”

NDP Leader Jagmeet Singh, who supported Trudeau’s invocation of the Emergencies Act, was asked Tuesday if he regrets backing the government. Singh said his party was always reluctant in its support.

“From the beginning, we've said, and we maintain that the reason we were in that crisis was a direct failure of Justin Trudeau, his leadership, and also other levels of government that failed to act to take the challenge presented seriously,” Singh said.

“I understand there will be an appeal of that ruling, and we will follow closely to see the outcome of that appeal,” he said.

Emergencies act ruling ‘sets a precedent’: professor

University of Ottawa associate professor of criminology Michael Kempa told CTV News the Federal Court decision — unlike that of the Public Order Emergency Commission under Rouleau — is “legally binding.”

“Anywhere we go from here, this sets a legal precedent,” he said. “It does make the government vulnerable.”

Kempa also pointed out similarities between Mosley’s assessment and Rouleau’s, namely that certain municipalities and their law enforcement agencies failed to act to dismantle the protests.

“They did not use the powers that were at their disposal to properly manage the freedom convoy protests, which started off completely legal, and ultimately did spiral into certain problems,” he said. “The difference is Rouleau says that that failure to act justified the federal government stepping in with the Emergencies Act, whereas the Federal Court now says failure to use powers that are on the books is not a reason to invoke the most extreme power in the country, which is the Emergencies Act.”

With files from CTV News’ Annie Bergeron-Oliver and CTVNews.ca’s Senior Digital Parliamentary Reporter Rachel Aiello 

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