Federal Court Rejects AG’s Attempt to Dismiss Motion Seeking to Admit More Evidence Concerning Emergencies Act Invocation

Armed police officers deploy to remove demonstrators against COVID-19 mandates, in Ottawa on Feb. 18, 2022. (Dave Chan/AFP via Getty Images)

A Federal Court judge has ruled against an attempt by Canada’s attorney general to dismiss a motion seeking to allow admission of more evidence that would help the court understand how cabinet made decisions regarding invocation of the Emergencies Act and whether it broke the law.

In his ruling on Jan. 27, Justice Richard Mosley ruled in favour of the joint motion filed by the Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF).

The motion sought to add “a selection of documents, transcripts and witness summaries” to the judicial review applications filed by the two organizations last February against the feds for its invocation decision that quashed the Freedom Convoy movement.

The records had already been disclosed during the Public Order Emergency Commission (POEC) proceedings from October to December of 2022. Justice Minister and Attorney General of Canada David Lametti contended that they should be kept out of court on grounds of confidentiality and cabinet privilege, noting that the CCLA and CCF had “selectively chosen” the proposed evidence to support their arguments, the court heard.

The records proposed in the motion include an email from the Clerk of the Privy Council to Prime Minister Justin Trudeau attaching a memo in which the clerk provided advice on invoking the Emergencies Act and reasons why Trudeau should use those powers.

They also include evidence relating to a policing plan relevant to the issue of whether the situation could have been “effectively dealt with under any other law of Canada,” as well as documents relating to threat assessments by the Canadian Security Intelligence Service (CSIS) finding that “at no point did CSIS assess that the protests in Ottawa and elsewhere constituted a threat to the security of Canada,” among many other records.

“The underlying applications involve questions of significant public importance regarding the first invocation of legislation that grants the Government extraordinary powers to deal with a public emergency,” Mosley ruled.

“The addition of admissible and relevant evidence to the record would help the Court to understand how that decision was made and whether it was lawful.”

Decision-Maker Argument ‘Ignores the Reality’

The convoy began as a protest by cross-border truck drivers opposed to the federal COVID-19 vaccine mandate. It turned into a much larger movement after thousands of Canadians across the country began joining in or voicing their support for ending the various COVID-19 mandates and restrictions.

On Feb. 14, 2022, Trudeau became the first prime minister in Canadian history to invoke the Emergencies Act, giving the government temporary powers to end the protests in Ottawa and elsewhere in Canada and to allow banks to freeze the accounts of convoy organizers and supporters without a court order.

Lametti argued that the decision-maker in invoking the act was “not any individual minister or a collective of ministers” but the governor-in-council (GIC), the judge heard.

“The respondent argues the GIC convened on February 14 and 15, 2022 and made the orders that are the subject of the Applications separately from Cabinet, which met on February 13, 2022.”

Mosley said Lametti also contested that none of the documents proposed in the motion, particularly the memo and recommendations sent to Trudeau by the Clerk of the Privy Council, “were in front of the decision-maker.”

“The Respondent argues that the Court cannot assume that documents prepared for the purpose of individual consideration and use by a single minister were brought before or considered by the collective,” Mosley wrote.

In November 2022, when Trudeau testified before the POEC, he established that he read the memo and explained how it was “essential to him” in his decision-making, the judge wrote.

Mosley said even though Lametti’s position regarding the decision-maker was constitutionally correct, it “ignores the reality” that cabinet was the decision-maker responsible for declaring a public order emergency.

“Decisions of the GIC are de facto made by Cabinet and not by the GIC itself,” he wrote. “To conclude otherwise would effectively prevent any Court from reviewing materials relied upon by the Cabinet in making its decisions under any circumstances.”

‘Despite Repeated Requests’

Mosley said he accepts the argument by CCLA and CCF that none of the evidence they sought to introduce in the motion was available to them when they commenced the judicial review applications.

“Evidence of the Cabinet proceedings that led to the decision to invoke the Act was not disclosed despite repeated requests over the course of these proceedings,” he wrote.

The judge agreed with CCLA and CCF that the proposed evidence will provide the relevant background and context for the judicial review.

“The evidence, as the Applicants contend, goes directly to the questions of whether the applicable legislative thresholds were met [for invoking the Emergencies Act],” he said.