Court Challenge of Emergencies Act Invocation Begins

Civil liberties groups argue that Emergencies Act usage wasn't justified

Thousands gather around Parliament Hill in support of the truckers' Freedom Convoy protest in Ottawa on Feb. 5, 2022. (Minas Panagiotakis/Getty Images)

The Canadian Civil Liberties Association (CCLA) and other civil liberties groups argued in a federal court Monday that the government did not have sound statutory grounds to invoke the Emergencies Act to deal with the Freedom Convoy protests.

“It was important to know if the legal threshold required to invoke the Emergencies Act was met, not only to assess a historical event, but also because it could serve as a guide for the government in the future. At the end of the day, this is a question that only the courts can answer,” Cara Zwibel, director of fundamental freedoms at the CCLA, said in a press release.

“We look forward to this week’s Federal Court hearing and look forward to its contribution to holding the government accountable for its decision to resort to extraordinary measures in response to disruptive civilian protests.”

From April 3 to 5, the federal court will hear from groups who filed actions contesting the use of the emergency measures, including the Canadian Constitutional Foundation, Canadian Frontline Nurses and Kristen Nagle, and individuals Jeremiah Jost, Edward Cornell, Vincent Gircys, and Harold Ristau.

The judicial review by a court is separate from the Public Order Emergency Commission, and will not be bound by its findings. The court will also make a formal legal finding on the question of whether using the act was justified, unlike the public inquiry.

The government said the measures it took to deal with the protests were targeted and proportional, while also remaining compliant with the Canadian Charter of Rights and Freedoms. The Public Order Emergency Commission, which reviewed the government’s invocation of the Emergencies Act, found that it met the “very high threshold” for using the law.

Groups Say Threshold Not Met

In a written submission to the court, the CCLA argues that the government’s invocation of the Emergencies Act on Feb. 14, 2022, did not meet the legal thresholds necessary. They said the protests did not, as the act requires, create a “threat to the security of Canada” within the meaning of section 2 of the Canadian Security Intelligence Service Act.

The organization claims that even if the emergency proclamation were sustainable on judicial review, the subordinate emergency measures did not hold up under charter scrutiny. By prohibiting various forms of participation in public assembly and allowing for the freezing of bank accounts without due process, the regulations interfered with Sections 2, 7, and 8 of the charter.

In her opening statement, CCLA lawyer Ewa Krajewska of Henein Hutchison LLP told the court that the government had other means to deal with the protests. She pointed out that the border blockades in Windsor, Ontario, and in Coutts, Alberta, had been solved without the invocation of the Emergencies Act.

She also argued that the measures in the act were overly broad and the process was done without due process or oversight, which led to sections 2, 7, and 8 of the charter being violated.

CCF Litigation Director Christine Van Geyn said in an April 3 press release that the government’s use of the Emergencies Act may have been the “most severe example of overreach and violations of civil liberties that was seen during the pandemic.” She also said the legal threshold was not met, as it can only be used when there is a national emergency and no other laws can address the situation.

“Parliament cannot use the Emergencies Act as a tool of convenience, as it did in this case. Canada’s past teaches us that emergency powers should never be used except as a last resort, and indeed, being a power of last resort is built into the language and threshold of the Act. Review through the courts is now the last remaining guardrail of accountability,” she said.