Gov’t Didn’t Meet Requirement to Invoke Emergencies Act, Lawyer for Civil Liberties Group Argues in Federal Court

Protesters stand on the back of a truck during the Freedom Convoy demonstrations against COVID-19 vaccine mandates and other restrictions, on Parliament Hill in Ottawa on Jan. 29, 2022. (Adrian Wyld/The Canadian Press)

A lawyer for the Canadian Constitution Foundation argued Tuesday in Federal Court that the Liberal government needed more supporting information to invoke the Emergencies Act in response to the Freedom Convoy protests last winter.

“Cabinet’s determination that the protests and blockades were threats to the security of Canada was unreasonable, because it had insufficient evidence to reach that conclusion,” Sujit Choudhrsaid, a lawyer with the Canadian Constitution Foundation, said on the second day of a Federal Court review.

From April 3 to 5, the court is hearing from groups who filed legal challenges contesting the use of the emergency measures, including the Justice Centre for Constitutional Freedoms and Canadian Frontline Nurses.

The Public Order Emergency Commission, which reviewed the invocation of the Emergencies Act, found the government had met the “very high threshold” for using the measure. The judicial review is not bound by the Commission’s findings, and, unlike the public inquiry, will make a formal legal finding on the question of whether using the Emergencies Act was justified.

Choudhry argued that on Feb. 14 last year, the government decided to use the act to quell the protests, even though the Canadian Security Intelligence Service had determined that the protests did not amount to a threat to the security of Canada as defined by the CSIS Act.

The lawyer also said that an alternative detailed threat assessment was meant to follow “under separate cover” on Feb. 14, the day the Emergencies Act was invoked, but it was never prepared. Jody Thomas, national security and intelligence adviser, had sought that threat assessment but said it “fell through the cracks and we were overtaken by events,” according to the Globe and Mail.

Choudhry argued that this alternative threat assessment “wasn’t just nice to have, but was legally required” for the act to be invoked, given the CSIS assessment that there was no threat to the security of Canada.

Additionally, he said the justification from the government that “no other law in Canada” could deal with the emergency was only half a sentence in a 14-page long memo.

“The common law of judicial review requires that any administrative decision maker—including the cabinet—provide a real and genuine analysis of why a statutory requirement was compliant. Whatever deference might be given to a government acting quickly in a difficult situation, this half sentence is not enough,” he said.

Sections 2 and 8 of Charter Violated

Janani Shanmuganathan, a lawyer for the Canadian Constitution Foundation, said measures in the Emergencies Act violated Section 2 of the Charter of Rights and Freedoms, which deals with the fundamental freedoms of Canadians.

While the Emergencies Act prohibited protesters from publicly assembling in the downtown core, Shanmuganathan argued the overly-broad measures also applied to people simply walking to the protest site to hand out food and supplies.

“These are people who are engaged in peaceful political expression and whose only relationship with the people doing these so-called specific harms is simply being at the same event, and we say that the regulations clearly violate the freedom of expression of these peaceful protesters,” she said.

Blair Ector, a founding partner at Loberg Ector LLP appearing on behalf of an individual impacted by the Emergencies Act invocation, said the freezing of bank accounts violated Section 8 of the charter, which protects against unreasonable search and seizure. Some protesters had their bank accounts frozen after the Emergencies Act was invoked, in a move that Finance Minister Chrysita Freeland called “economic incentives” for people to leave Ottawa’s downtown.

Ector said the Attorney General’s argument that the freezing of accounts was reasonable and compliant with Section 8 was a “sweeping and startlingly broad statement that is incorrect in law.” He said the AG’s claim that freezing accounts did not count as a “seizure” of funds was “playing loosely” with the meaning of the word.

“We can say it’s not seized, but if they don’t have access to their funds, if they’re not allowed to use their credit cards, then what is it?” he said.

The lawyer also said while the freezing of banking accounts was temporary, the long-term consequences of such an action were not. He said some Canadians had their life insurance and corporate insurance policies cancelled, while others had their credit ratings impacted forever.

Federal lawyer Christopher Rupar argued that the court had heard in hindsight about what could have been done differently, but that this was “not how this matter should be reviewed.”

“This matter should be reviewed based on the context of what happened that day and the days leading up to it, and what the decision-making process was looking at,” he said.

Rupar said while the civil liberties groups argued that there was no serious violence during the protests, the government was concerned that if the protests weren’t soon resolved peacefully, it could have created a chain reaction of violence across the country.

The three-day hearing is set to conclude on Wednesday with arguments from federal lawyers and statements in reply.