The Freedom Convoy protest originated as a demonstration against mandatory COVID-19 vaccinations for truckers traversing the Canada-U.S. border. The protest subsequently expanded into a broader movement opposing various pandemic-related mandates and restrictions, sparking parallel demonstrations at multiple Canada-U.S. border points.
The federal government invoked the Emergencies Act on Feb. 14 to deal with the protests, giving law enforcement expanded powers to arrest demonstrators, freeze the bank accounts of some protestors, and require towing companies to remove protesters’ vehicles from Ottawa. The act also made it illegal to attend any event deemed an unlawful assembly, such as the protest in downtown Ottawa.
Two Different Decisions
The Public Order Emergency Commission was created to determine if the federal government was justified in invoking the Emergencies Act. Over the course of several months, the commission poured over documents and interviewed dozens of witnesses, including cabinet members, police officers, officials from the city of Ottawa, protest organizers, and Ottawa residents.
Justice Rouleau, an Ontario Court of Appeal justice, said that in some instances it was “beyond doubt” that the conditions were met for invoking the act, but there were also other questions requiring “careful review.” Justice Rouleau said he came to the conclusion “reluctantly,” as the factual basis for his decision was not “overwhelming.” He added that “reasonable and informed people could reach a different conclusion than the one I have arrived at.”
Indeed, 11 months later, a different conclusion was reached. Justice Mosley, in his ruling, said at first he believed the invocation of the act was reasonable at the outset of the proceedings, but later came to the conclusion that the “proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility.”
Was The Emergencies Act Needed?
A prominent question raised in the aftermath of the Freedom Convoy was whether the different levels of government could have dealt with the matter in the absence of the Emergencies Act. Section 3 of the act requires that, for it to be invoked, the national emergency must “exceed the capacity or authority of a province to deal with it.”Both Justice Mosley and Justice Rouleau were in agreement that the protest in the nation’s capital evolved into an “occupation” that was beyond the ability of the Ottawa police alone to handle. Both Justices also acknowledged the border blockades were having impacts on Canada’s supply chains and trade with the United States.
Justice Rouleau wrote that Ottawa lacked jurisdiction to effectively address the protests, could offer only limited assistance to law enforcement, and that law enforcement had concerns about harms that could arise from enforcing existing Criminal Code laws. He also agreed with cabinet that using the military to quell the protests—which was considered preferable to using the Emergencies Act when it was first adopted—was not appropriate under the circumstances.
Justice Rouleau said, for those reasons, he concluded the federal government was “reasonably concerned” that the situation could become dangerous and unmanageable. He said that coupled with “credible and compelling evidence” supporting the belief that there existed a public order emergency, the decision to invoke the act was appropriate.
Charter Rights
When considering if the Emergencies Act invocation violated the Charter Rights of Canadians, Justice Rouleau wrote that Ottawa’s economic orders that froze bank accounts did not violate Section 8, which says everyone has the right to be secure against unreasonable search or seizure.Justice Rouleau determined that the freezing of assets was neither unreasonable nor a form of “seizure,” and the Supreme Court previously explained Section 8 promotes Canadians’ privacy interests but does not protect against restrictions on the enjoyment of property.
When addressing criticisms that the economic measures should have been limited to just Ontario, Justice Rouleau said the measures needed to be national in scope in order to be effective. “Seeking to prevent any funds from supporting the illegal protests was, in my view, a reasonable measure in the circumstances,” he said.
Justice Mosely took a different position, arguing that the invocation of the Emergencies Act infringed on Charter Sections 2(b), which deals with freedom of thought, belief, opinion, and expression, and Section 8, which was not justified under Section 1 of the Charter that puts “reasonable limits” on rights and freedoms.
The Justice argued that Ottawa’s decision to freeze the bank accounts of some protestors was “not minimally impairing,” because the regulations applied everywhere in Canada, and there were “less impairing alternatives available” to Ottawa.
Justice Mosley said the federal government’s economic orders violated protestors’ charter rights “by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts.”
Justice Mosely wrote in his decision that had he been a decision-maker in the federal government back in February 2022, he might have agreed it was necessary to invoke the Emergencies Act. But he said with the “benefit of hindsight” and possession of a more extensive record of the facts and law, he came to a different conclusion.
