Hindsight 2022

"Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act." With the benefit of hindsight, however, Justice Richard Mosley ruled that the federal government's declaration of the emergency to end the "Freedom Convoy" in early 2022 was unjustified. The actions of the protesters did not meet the threshold required to declare a public order emergency, the Federal Court Justice found.

"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," Mosley wrote in his reasons.

He also emphasized that the conclusion of the public inquiry headed by Justice Paul Rouleau into the Emergencies Act — that the government was justified in its decision — cannot serve as a substitute for judicial review. Mosley noted that his ruling can be appealed, unlike the inquiry's verdict.

The government, noting that the Federal Court ruling is at odds with the conclusion of the Rouleau inquiry, has made it clear that it will appeal this decision.

"The public safety of Canadians was under threat," Deputy Prime Minister Chrystia Freeland told reporters. "Our national security, which includes our national economic security, was under threat."

Ewa Krajewska, a partner with Henein Hutchison Robitaille LLP in Toronto, represented the Canadian Civil Liberties Association who was among the parties challenging the invocation of the Emergencies Act. She says the ruling properly holds the government to account.

"The existing laws of Canada have to be insufficient to deal with a threat, and it has to be a threat to the national security of Canada," she says.

The court also agreed with the CCLA's position that the restrictions on freedom of expression and search and seizure measures allowing the RCMP to share information with banks to have the assets of certain protesters frozen were overly broad.

However, the court did rule the invocation of the Emergencies Act did not breach s. 2(c) on peaceful assembly and s.2(d) on freedom of association. Mosley agreed with the government that "gatherings that employ physical force, in the form of enduring or intractable occupations of public space that block local residents' ability to carry out the functions of their daily lives, in order to compel agreement [with the protestors' objective] are not constitutionally protected."

"I was a little disappointed that it was not a more robust discussion about freedom of peaceful assembly as being something distinct from freedom of expression, and what test, if any, we should employ to establish limitation on that Charter guarantee because right now there is no judicial test," says Kristopher Kinsinger, the national director of the Runnymede Society.

Kinsinger, who says he is not speaking on behalf of the CBA's Constitutional Law Section, which he chairs, was also struck by the fact that Section 7 was not engaged.

Leah West, a former national security lawyer and a professor at Carleton University, notes Mosley's remarks that he might have sided with the decision to invoke the Act, were it not for the benefit of "a more extensive record of the facts and law than that which was before" the government.

"This demonstrates the importance of considering things outside of a political context when you are talking about the application of legislation, and that will inform appropriately informed decisions about the Emergencies Act going forward because we know it's under review at the Department of Justice," West says.

She highlights Mosley agreed with her position, made before the Rouleau inquiry, that the CSIS Act threshold on the "threat to the security of Canada" was not met during the convoy.

"The main difference between Justice Mosley's decision and the Public Order Emergency Commission of Inquiry is on the issue of how they interpret the language of serious violence," West says. "There were no issues on whether what was happening was politically or ideologically motivated, but did it amount to threats or acts of serious violence to persons or property, and they each take a different tack in interpreting that term. The threshold applied by Justice Mosley is a higher one in terms of a legal test, and he points to the actual evidence of violence, and said it wasn't sufficient here."

West further notes that the only evidence of serious violence was in Coutts, Alberta, which was handled there, not in Ottawa.

A review of the Emergencies Act is expected to focus on the CSIS Act threshold. West says the government will likely want to broaden it to include threats to critical infrastructure being rendered unusable.

"That's fair, and we heard a lot of that at the commission," West says. 

Krajewska notes that when CSIS is determining whether or not there is a threat to Canada, it's asking itself whether it should undertake covert surveillance of Canadians.

"The threshold needs to be just as high or higher when you're considering not just doing covert surveillance of a few Canadians, but of declaring a national emergency," Krawjewska says. "If the government decides to re-open or amend the Emergencies Act, the CCLA will participate and make submissions on what the appropriate threshold should be, but that's the one we have right now."

University of Waterloo professor Emmett Macfarlane found Mosley's reasoning less compelling than that of the public inquiry report.

"In a context of a reasonableness review, I don't think that due deference was given to the situation facing the federal government," he says. "And on the Charter side, I was unimpressed by the assessment of what constitutes or not a reasonable limit on rights in that particular situation at least."

Macfarlane says the court's decision is overly formalistic in how it points to the capacity of provincial governments to deal with the issue. He takes issue with Mosley leaning on the argument the Coutts border situation was resolved before the Act was invoked. That doesn't address the matter of the occupation of downtown Ottawa, he says.

What's more, Mcfarlane says, Mosley's reasons sometimes suggest that "as long as the provinces say they've got this, then there's no problem." 

"There's an element to that that's an invitation to anarchy," he says, noting the weeks of ineffectiveness by the authorities to deal with the situation in Ottawa. "If you read the judicial decision, it's almost like reading an alternative history of whether or not the Emergencies Act was really required."

Macfarlane also questions the finding that the measures violated freedom of expression rights under s. 2(b).

"If that's not a reasonable limit on free expression, you might as well cross out section 1 out of the Charter altogether," Macfarlane says. "In my mind, some of the Charter analysis bordered on absurdity."