Inside a spectacular courtroom at the Supreme Court of Canada building in early April, Justice Richard Mosley of the Federal Court heard arguments from national civil liberties organizations about why the Government of Canada’s invocation of the Emergencies Act last year was illegal and unconstitutional. The Federal Court is the last guardrail of accountability for the Trudeau government’s use of the extraordinary and powerful legislation.
The applicants in the judicial review included two national civil liberties organizations: the Canadian Constitution Foundation and the Canadian Civil Liberties Association. They sought to convey two major arguments.
The first was that it was unreasonable for Prime Minister Justin Trudeau and his cabinet to invoke the Emergencies Act because its legal standards were not met. Cabinet did not have reasonable grounds to believe a threat to the security of Canada existed, and the requirement that the law only be used as a “last resort” was not met. The second line of argument was that the special regulations (like the prohibition on assemblies and the freezing of bank accounts) created under the Emergencies Act violated the Canadian Charter of Rights and Freedoms.
The approach taken by the four lawyers representing the attorney general (the government side) was breathtaking. They began by arguing that the case should not be heard at all because, they claimed, it was moot (i.e., the event in question was over and done with). But to accept such a line of argument would make a government’s use of this powerful legislation, which acts as a de facto amendment to the Canadian Constitution, evasive of any review (because by the time the next challenge got to court, that emergency would also be over).
Justice Mosley told the parties he would reserve a decision on mootness and so the court proceeded with the three days of hearings on the merits. But it is shocking that the first two hours of the hearing on a powerful and never-before-used law were spent by the government saying, in effect, “Nothing to see here.”
On the merits, the attorney general was tasked with responding to a mountain of evidence from the civil liberties groups about the Emergencies Act’s legislative history as well as the events leading up to its invocation in response to a largely peaceful and non-violent (though highly disruptive) protest.
The attorney general’s response was to assert that cabinet deserves a special and heightened level of deference. The attorney general argued that cabinet is an apex decision-maker; accordingly, its authority is almost unlimited and mostly unconstrained by the Emergencies Act’s language. The mere assertion by cabinet that it believes itself to be acting reasonably is itself all that is required. The attorney general argued that the decision to invoke the Emergencies Act was “quintessentially executive in nature, unconstrained” and that its decisions should be considered “very difficult to set aside.”
Canada’s system of parliamentary democracy already grants enormous authority to the executive. The attorney general’s position that courts owe deference to cabinet for the mere fact that the decision was made at the “apex” of government is a shocking claim that would create a dangerous precedent and erase one of the few checks and balances in our system: judicial review.
The applicants also argued that the emergency measures and the economic measures were too broadly drafted and violated charter rights. The emergency measures prohibited gatherings that might reasonably lead to a breach of the peace, as well as travelling to or materially supporting those gatherings. They were drafted so broadly they captured people who did not create any blockades, had no intention to create a blockade, and might not even support blockades. They covered people bringing food or water to a protest, or walking to a protest that hadn’t even yet begun. And that peaceful protester could risk five years’ imprisonment.
The economic measures, which required the sharing of banking information about “designated persons” involved in the protests between the RCMP, CSIS, and banks, violated the charter-protected right to be free from unreasonable search and seizure. The economic measures were not limited to those participating in blockades, but covered any “designated person,” permitting the disclosure of banking information to police about people just standing on Parliament Hill holding a sign, or walking to the area to hold a sign. Banking information is deeply personal. Imagine how you might feel if a friend or neighbour could look through your bank statements, let alone if the police and the government could, all without a warrant.
The Federal Court decision will not come soon. The case involves never-before-considered legislation that is incredibly powerful. But this decision is worth waiting for. It will guide courts and politicians in future emergencies, both real and—perhaps even more importantly—imagined.
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