In a long-awaited decision, the Federal Court has ruled that the measures Prime Minister Justin Trudeau invoked under the Emergencies Act were unreasonable and unconstitutional.
The decision follows an application for judicial review launched by the Canadian Constitution Foundation, the Canadian Civil Liberties Association, and several other applicants in 2022 after the emergency measures were used to end the Freedom Convoy protests in Ottawa.
The measures controversially allowed the government to freeze the bank accounts of protesters, conscript tow truck drivers, and arrest people for participating in assemblies the government deemed illegal.
The court declared that the decision to issue the Proclamation and associated Regulations and Order was unreasonable and beyond the scope of the Emergencies Act.
The court order highlighted that the government’s regulations had violated Charter rights, specifically encroaching upon freedom of thought, opinion, and expression. Additionally, the Emergencies Act order was found to infringe on the right to security against unreasonable search or seizure.
“It is declared that the decision to issue the Proclamation and the association Regulations and Order was unreasonable and ultra vires the Emergencies Act,” the Federal Court ruled.
“It is declared that the decision that the Regulations infringed section 2 (b) of the Charter and declared that the Order infringed section 8 of the Charter and that neither infringement was justified under section 1.”
Conservative leader Pierre Poilievre addresses the ruling on X, accusing the Prime Minister of breaking “the highest law in the land” by resorting to emergency powers.
The Canadian Constitution Foundation had initiated the judicial review, expressing concerns over what they deemed as a severe example of government overreach and violations of civil liberties during the pandemic.
“The Trudeau government’s use of this extraordinary law may be the most severe example of overreach and violations of civil liberties that was seen during the pandemic,” said Van Geyn at the time.
“The use of this powerful law was unauthorized because the legal threshold to use the law was not met. The Emergencies Act contains a last resort clause: it can only be used when there is a national emergency and there are no other laws at the federal, provincial and/or municipal levels which can address the situation. Parliament cannot use the Emergencies Act as a tool of convenience, as it did in this case.”
In his ruling Justice Richard Mosley emphasized that the Emergencies Act should be viewed as a last resort, deployed only when all other options have been exhausted. He found that the evidence indicated most provinces were capable of managing the situation using existing laws, such as the Criminal Code, as argued by Alberta.
The government contended that the ongoing protests created a national crisis requiring the Emergencies Act, asserting that alternative laws were insufficient. However, the court disagreed, acknowledging the gravity of the situation but maintaining that existing laws, as demonstrated in Alberta, could have been effective
In essence, the court concluded that the government failed to demonstrate the absolute necessity of invoking the Emergencies Act, emphasizing the importance of exhausting other available tools before resorting to it.
Part of the decision also addressed the special economic measures taken by the Trudeau government to freeze the bank accounts of Freedom Convoy organizers and protestors. Justice Mosley rejected the Liberal government’s claim that freezing bank accounts related to the Freedom Convoy under the Economic Measures represented minimum impairment.
Despite recognizing the government’s goal to disperse blockades, the judge argued that the freezing of accounts was far from minimally impairing, impacting individuals nationwide, even in regions without illegal protests.
The judge recommended a more restricted scope for the measures in the ruling, expressing concerns about the lack of clear standards for targeting individuals and the absence of a proper process for challenging such decisions. The unintended consequences of the account suspensions, affecting joint account holders and family members with issued credit cards, were emphasized.
Ultimately, the judge concluded that the violations of Charter sections 2(b) and 8 were not minimally impairing and were not justified under section 1 of the Emergencies Act.