Headline: The Emergencies Act was illegal

Or, was it?

If you wake up to headlines, the headline you will wake up to this morning is that the Government’s decision to use the Emergencies Act (EA) to bring an end to the Freedom Convoy protests of early 2022 was illegal.

In turning to the Emergencies Act, the Government had to get creative with an old piece of legislation that had sat on a high shelf since its passage in 1988. It used the Act in the face of failures of intelligence and of policing which left the Government blindsided by major acts of disruption to critical border crossings, with significant economic consequences, and a protest in Ottawa, the nation’s capitol, that turned into an occupation. RCMP penetration of an armed cell present at one of the border crossing blockades, at Coutts, Alberta, left the government fearful of the future and of the possibility that a never-ending protest movement would spawn serious violence and other harms to national security.

In the stunning ruling handed down by Justice Richard Mosley of the Federal Court, the Government’s effort to be ‘creative’ in adapting a 1988 piece of legislation  to circumstances in 2022 is decried. Justice Mosley also puts no stock in the Government’s fear of where the Freedom Convoy was trending. He is unconcerned as to whether there was a solution short of using the Emergencies Act to end the protests, a matter that took up a lot of time for the Public Order Emergency Commission.

The lesser morning headline from the Mosley ruling involved breaches of the Charter. Here, the Justice was even-handed. He sided with the Government on some of the Charter claims, arguing that the actions taken under the EA did not infringe on the right of peaceful assembly, or freedom of association, but he did find that the freedom of expression of some who took part in the Freedom Convoy protests with peaceful intent was infringed, and that there were Charter breaches involved in the freezing of persons’ bank accounts.

Before digging into some elements of Justice’s Mosley’s decision, it is worth asking how it matters, beyond the major political embarrassment caused to the Government and the ammunition it gives to critics, including those in the Conservative Party who openly supported the Freedom Convoy. Pierre Poilievre has taken to X to crow.  Government Ministers immediately said the decision to invoke the EA was hard but right and that the Government will appeal.

I think there are some easy answers to the so-what question, even before we know the outcome of any appeal of the decision.

Judicial review, especially of something like the Emergencies Act, matters because it provides a forum for encouraging ongoing public debate about something that the Canadian public does not debate or think about enough—namely our understanding of national security threats and our expectations of how government will respond to them. Judicial review considers national security threats through a strict and narrow legal lens, which is a challenge if an old law such as the Emergencies Act (and the CSIS Act on which it partly hinges) does not do an especially good job of defining national security threats, as Justice Mosley avers.

The Mosley ruling also underscores the important role that judicial review plays in holding government to account. It’s a vital democratic tool. Yes, there are other checks built into the use of the Emergencies Act, including the need for Parliamentary approval, a Parliamentary review of the measures taken under the EA, and a retrospective statutory inquiry (conducted by the Public Order Emergency Commission headed by Justice Paul Rouleau). Judicial review may seem piling on, but it isn’t. Judicial review uniquely puts the use of legislation under a legal microscope in ways that Parliament or an inquiry cannot.

Judicial review also demonstrates the importance of public interest advocates like the Canadian Civil Liberties Association in keeping the system honest through contestation, and in pushing debate on causes, even those that may be unpopular or outside the mainstream.

Where I would put less ‘so-what’ emphasis is on the notion that judicial review of the use of the Emergencies Act will temper any future use of the Act. In reality, no government in its right mind would regard invocation of the Emergencies Act as anything other than a last resort, which is precisely the intention.  There is nothing, incidentally, in Justice Mosley’s reasons that suggests that Trudeau Government saw the use of the EA as anything less than a last resort measure to meet a desperate circumstance. Still, Justice Mosley finds their use of the EA unwarranted.

In setting up his argument, Justice Mosley points out three things: first, that his will not be the last word. He also acknowledges that his inclination at the outset of the case was to see the use of the Emergencies Act as reasonable. He states that:

“I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order.” 

He goes on to say that he has considerable sympathy for government decision-makers and that “had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act…”

Justice Mosley acknowledges that that his conduct of judicial review has the “benefit of hindsight.” I am no lawyer, but I can’t help wondering whether that statement might land his decision in some difficulty when the case goes to appeal.  

So, now to the meat. Justice Mosley finds that the Government did not meet the high legal threshold required for use of the Emergencies Act. That high legal threshold has a two-part test (with branches, as they say). Bear with me for a second on this, as the legal thresholds are important.

One part concerns the legal definition of a national emergency, specified in the EA as “an urgent and critical situation of a temporary nature that…(I am only quoting the relevant provision) “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it…and that cannot be effectively dealt with under any other law of Canada.”

In other words (amateur legal interpretation alert), the federal government has to take great care not to overstep its authority in regard to the provinces (and territories), and that it cannot use the EA as merely an expedient or convenient tool—the circumstance has to be one where it is used a demonstrable last resort law.

The second part of the test defines a public order emergency, which is to be meant as “an emergency that arises from threats to the security of Canada…” The definition of threats to the security of Canada was imported into the EA in 1988 from its recent cousin, the CSIS Act, passed in 1984. The CSIS Act, section 2, has, in turn, a four-part provision, referring to espionage or sabotage threats, foreign influenced activities, ‘subversion’ of government, and the part relied on in invoking the EA in 2022:

“activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective…”

To cut to the chase, Mosley determines that the Freedom  Convoy protest did not constitute a national emergency as spelled out in the Emergencies Act and did not meet the definition of a threat to the security of Canada.

Two big strikes (but recall that Justice Rouleau found differently in his report of the Public Order Emergency Commission). What does Mosley base his conclusions on?

One of the requirements of the Emergencies Act is that a Government that invokes it has to issue a “Declaration” specifying the reasons why it believes use of the Act is necessary (or why it believes the legal thresholds have been met). This is also referred to as the “Section 58 (from the EA) explanation.”  In essence the Declaration is the summation of the Government’s legal and policy conclusions about the crisis it faces.

This is the test and Justice Mosley’s ruling flatly denies the legal validity of the Government’s Declaration.  

Wow.

That declaration had five components. Two of them spoke directly to economic security issues: the adverse effects on the Canadian economy resulting from border blockades; and the breakdown of supply chains, “and the risk that this breakdown will continue as blockades continue and increase in number…” A third component also reflected economic security concerns, as it talked about damage to Canada’s relationship with its trading partners, especially the United States.

On these three elements of the EA Declaration, Justice Mosley basically argues that concerns about economic security, whether warranted or not, are not reflected in the language of the Emergencies Act.  The Government was wrong to get ‘creative’ about the Act—my words, not his. Change the Act in future, he suggests. But his ruling had to deal with the letter of the law as he understands it and as existed at the time.

Then there is a fourth element of the Declaration (actually first in the list promulgated on February 14, 2022). I should state it in full:

“the continuing  blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried out in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada.”

On this element, Justice  Mosley’s argument is that the blockades were mostly dealt with by law enforcement action just prior to the invocation of the Emergencies Act—other, of course, than the “blockade” in Ottawa.  On this point he says:

“I understand that the concern was that new blockades could emerge at any pressure point across the country but the evidence available to Cabinet was that these were being dealt with by local and provincial authorities, through arrests and superior court injunctions, aside from the impasse which remained in Ottawa.” [paragraph 249 of the ruling]

This seems to me a critical argument, and I don’t find it fully plausible, not least because Justice Mosley appears to be asserting a superior judgement of the state of affairs versus that held by the Cabinet (which a Justice is not meant to do)  and because he appears to dismiss the “concern” about an ongoing disruptive dynamic from the Freedom Convoy protests. It also downplays, to my mind,  the “impasse” presented by the occupation in Ottawa and the potential it held to generate future action in other parts of the country.

Justice Mosley also dismisses the idea that there were threats of serious violence or that the concern about future threats of serious violence was warranted. He calls the evidence of this “speculative” and “vague” apart from the arrest of the armed cell at Coutts, Alberta. Justice Mosley does not acknowledge  threats made to federal politicians and Cabinet Ministers, which was part of the evidence introduced during the Public Order Emergency Commission. He does not analyse the threat reporting presented by CSIS and the Integrated Terrorism Assessment Centre (ITAC). He does not analyse the best intelligence available at the time, that generated by the OPP’s Project Hendon. He does not discuss the over-stretch of policing resources across the country or the impact of intelligence failures, not least the failure to predict border blockades, understand early enough the intentions of the Freedom Convoy, or paint an accurate picture of the Ottawa protest.

What else? Justice Mosley finds that the Emergencies Act cannot be read, as the Government wished to, to equate border blockades and threats to critical infrastructure as a form of threat or use of violence against property. At paragraph 281 of the ruling he states:

“Absent any authority in support of the proposition, I am unable to find that the term encompasses the type of economic disruption that resulted from the border crossing blockades, as troubling as they were.”

I expect this issue may come up as a major question of law at appeal. (But what do I know).

Then, and I think this is really the crux of the matter, there is the fifth element of the EA Declaration:

“the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians.”

The Government, it is clear to me, took the future threat seriously and it was the driver behind the decision to invoke the Emergencies Act. The Coutts, Alberta arrests were a tipping point.

On this, Justice Mosley states that the Government had a valid reason for concern but that  “it did not meet the test required to invoke the Act.” Why? Because there was no evidence.  But how can you have evidence about a future threat? You can have only a threat assessment, a judgement call based on the best available intelligence and predictions about what the future might hold. Maybe it was a bad judgement call, granted. But there is no “evidence” for that either.  No one, including Justice Mosley, can say what the future would have held if the Emergencies Act had not been invoked and the Ottawa occupation swiftly dismantled and without any loss of life.  Here we hit the limits of a legal judgement.

Justice Mosley has produced a ruling that demands our attention and respect. It is a ruling about the limits of the Emergencies Act and the problems in importing the CSIS Act definition of threats to the security of Canada into the Act. It leaves untouched the question of whether the use of the Emergencies Act was the right policy decision and denies the ability of the Government to put any novel interpretation around  economic and future security threats into play.

Whatever happens at appeal, the ruling is a forceful reminder that governments have a public responsibility to keep national security legislation evergreen, to meet a changing threat environment. There was a failure to do so with the Emergencies Act, and it is as yet unclear how the Government intends to address changes to the EA. Equally, there has been a failure to modernize the CSIS Act, which the Government is now tackling, though with only modest and under-powered suggestions.

Justice Mosley’s ruling is also a reminder of the need for a more coherent public understanding of threats to national security. Reasonable people can debate whether or not the Freedom Convoy presented a threat to national security.  Justice Mosley finds it did not. But the debate floats in the ether without a proper definition in law, policy and public understanding.

I encourage all so inclined to read this important ruling.

You can find it here:

Decision https://www.fct-cf.gc.ca/Content/assets/pdf/base/2024.01.23-306-22-T-316-22-T-347-22-T-382-22.pdf 

Brief:  https://www.fct-cf.gc.ca/Content/assets/pdf/base/2024-01-23-News-Bulletin-Public-Order-Emergency.pdf