Civil Liberties Groups in Federal Court to Challenge Invocation of Emergencies Act

Civil Liberties Groups in Federal Court to Challenge Invocation of Emergencies Act
Public Safety Minister Marco Mendicino, Deputy Prime Minister and Finance Minister Chrystia Freeland, Justice Minister and Attorney General of Canada David Lametti and President of the Queen's Privy Council for Canada and Emergency Preparedness Minister Bill Blair stand behind Canada's Prime Minister Justin Trudeau as he announces that the Emergencies Act will be invoked to deal with the Freedom Convoy protests, in Ottawa on Feb. 14, 2022. (Hailey Sani/Public Domain)
Andrew Chen

Two civil liberties groups are in the Federal Court to seek disclosure of unredacted documents that led to the federal government's decision to invoke the Emergencies Act to end the Freedom Convoy protest earlier this year.

The Canadian Constitution Foundation (CCF) and the Canadian Civil Liberties Association (CCLA) challenged the use of the act on Aug. 8.

In a statement, the CCF said it is seeking an order for the attorney general to disclose the documents, including minutes of the Incident Response Group (IRG) and cabinet meetings that led to declaration of the act.

“The government’s failure to disclose wide swaths of evidence that go to the question of whether it was justified in invoking the Emergencies Act is an attempt to evade meaningful judicial review," said Christine Van Geyn, the CCF’s litigation director, in the statement.

"Allowing these documents to remain secret would undermine the integrity of the proceedings in this historic matter if a litigant is pre-empted from arguing in court that the government acted unconstitutionally.”

Incident Response Group

The IRG, created by Prime Minister Justin Trudeau in August 2018, is a federal committee, described by the government as a "dedicated, emergency committee that will convene in the event of a national crisis or during incidents elsewhere that have major implications for Canada."

Trudeau convened the IRG, consisting of federal ministers and senior officials, on Feb. 10, amid the Freedom Convoy protest taking place in Ottawa's downtown core since late January against federal COVID-19 vaccine mandates and restrictions. The protest prompted several blockades at Canada-U.S. border crossings in solidarity with the convoy as the movement broadened to call for an end to other pandemic restrictions.

"The [IRG] discussed the significant federal support that the RCMP is providing to law enforcement partners both in Ontario and across Canada," a government statement said of the meeting.

Following the meeting, the Liberal government invoked the Emergencies Act on Feb. 14, giving the police additional powers to remove the demonstrators in escalated operations over the next few days.

The act also allowed financial institutions to freeze the bank accounts of individuals and entities that were believed to have donated to the protest, without the normal requirement of first obtaining a court order.
It was the first time the act has been invoked since it was introduced in 1988 to replace the War Measures Act, which has been brought into force only three times in Canadian history: during the two world wars and the 1970 October Crisis.

Emergencies Act Review

On Aug. 8, the CCLA also appeared at the Federal Court that is reviewing the federal government's invocation of the act.
According to the CCLA, the hearing is part of a broader legal challenge to the government’s unprecedented invocation of the Emergencies Act, which allowed the government to bypass typical democratic processes to limit constitutional rights across the country.  
"The arguments we are presenting today will highlight how—in this case and others—the federal government has been using cabinet privilege to try to shield an increasingly wide range of government information from meaningful scrutiny," the CCLA said in a news release on Aug. 8. 
The advocacy group said it recognized the disruption the Freedom Convoy protests had caused at the time but said the invocation of the Emergencies Act was "unlawful and unconstitutional."
"Since that time our pro bono counsel have been trying to get answers from the government. What evidence did the government have to ground its invocation of the Emergencies Act, and what evidence justified the emergency orders they passed limiting constitutional rights across the entire country?" the CCLA said.
"Getting answers hasn’t been easy."