Lawyers for the Trudeau government were back in the Federal Court of Appeal this week to challenge the Mosley Decision, which declared the invocation of the Emergencies Act in 2022 unlawful and unjustified.
The consequences of the Trudeau government’s appeal are significant.
If upheld, Mosley’s decision that the use of the Emergencies Act was unjustified would establish a clear precedent regarding the conditions under which the act could be invoked in the future.
Perhaps more importantly, those who were victims of search and seizure—and perhaps even arbitrary detention—could seek personal damages stemming from the unconstitutional nature of invoking the act..
Michael Feder, defence counsel representing the government, contended that Mosley erred in his decision-making by approaching the Act’s lawfulness with “20/20 hindsight.”
“Who, outside of a courtroom,” Feder rhetorically asked the Court of Appeal, “would seriously suggest the situation was going to get better in the absence of emergency measures?”
Feder cited two hospital bomb threats in Vancouver, the “conspiracy to commit murder” charges in Coutts, and someone “throwing rocks at an ambulance in Ontario” as specific examples of “violence” and “threat to public safety” justifying the invocation of the Emergencies Act.
Sujit Choudhry of the Canadian Constitution Federation rejected the government’s argument.
“If taken to its absurd conclusion,” Choudhry explained, “you could use the [Emergencies] Act anytime, just by having understaffed policing resources.”
The freezing of bank accounts was another theme running through the proceedings.
Government defence counsel asserted the freezing of bank accounts during the Emergencies Act did not qualify as “unwarranted search and seizure” as the funds in the bank accounts were never held in the government’s control for the purposes of a criminal investigation.
Appeals judge Yves de Montigny pushed back: “If someone can no longer use their funds, how is that not a seizure?”
