“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration,” wrote Justice Richard Mosley in a Jan. 23 decision.
The judge said while he had initially believed the Emergencies Act invocation was justified in response to an “unacceptable breakdown of public order,” arguments by the Canadian Constitution Foundation and Justice Centre for Constitutional Freedoms led him to see otherwise.
The two civil liberties organizations had argued in court that the Liberal government did not meet the legal threshold to invoke the legislation in response to the protest. They supported lawsuits filed by five plaintiffs who participated in the protest, two of whom had their bank accounts frozen as a result of the Emergencies Act.
The Freedom Convoy protest was started in response to a mandate requiring COVID-19 vaccination for truck drivers crossing the Canada–U.S. border, and resulted in encampments of trucks in the nation’s capital. The protest evolved into a larger movement against pandemic mandates and restrictions, with similar protests being held at several Canada-U.S. border crossings.
‘Other Tools’ Available
In his decision, Justice Mosley wrote that the Emergencies Act was meant to be a tool of last resort, and Ottawa could not invoke it because “it is convenient, or because it may work better than other tools at their disposal or available to the provinces.”
While the judge agreed with Ottawa’s claim that the situation was “critical” and required an urgent resolution by governments, he did not agree with the conclusion that other laws in Canada could not have dealt with the protests, pointing out that the provincial governments of Quebec and Ontario had been able to deal with the protests on their own.
“For these reasons, I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires [beyond lawful authority],” he wrote.
Justice Mosley wrote 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 deals with the right to be secured from unreasonable seizure.
In relation to Section 8, the judge said Ottawa’s decision to freeze the bank accounts of some protestors was “not minimally impairing,” as the regulations applied everywhere in Canada—including in areas where protests were not happening—and because 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.”
Reactions to Ruling
In a press conference following the ruling, Deputy Prime Minister Chrystia Freeland said that the Liberal government would be appealing the decision.“We respect very much Canada’s independent judiciary. However, we do not agree with this decision. And respectfully, we will be appealing,” she told reporters in Montreal. Ms. Freeland said Canada was facing a crisis and that her government took the right approach.
Conservative Leader Pierre Poilievre said on social media platform X that the judge ruled Prime Minister Justin Trudeau “broke the highest law in the land” by invoking the Emergencies Act.
Edward Cornell, one of the plaintiffs in the lawsuit, said the Federal Court decision was a “great win” for all Canadians. The Federal Court judge ruled that Mr. Cornell and Vincent Gircys had standing, whereas the application by the three other plaintiffs was dismissed. Mr. Cornell had his financial accounts frozen during the public order emergency.
“I think we cracked the door open in the justice system today and it gives hope to a lot of Canadians across the country that have been persecuted during this COVID lockdown in this whole era for the past three years,” he told The Epoch Times.
Chris Barber, one of the lead organizers of the trucker protest, told The Epoch Times that the judge’s ruling was “amazing news” on the two-year anniversary of the Freedom Convoy’s arrival in Ottawa. “The truth will come out, and we will be victorious,” he said.
Public Order Emergency Commission
Justice Mosley’s decision contradicts that of the Public Order Emergency Commission, which was created to examine whether the federal government was justified in invoking the Emergencies Act. That commission heard from dozens of witnesses over the course of several months, including members of the federal government, police officers, officials from the city of Ottawa, and protest organizers.Commissioner Paul Rouleau, an Ontario Court of Appeal justice, determined on Feb. 17, 2023, that cabinet had met the “very high” threshold to invoke the act, arguing it had “reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.”
In his final report, Mr. Rouleau recommended that the definition of “threats to the security of Canada” in the CSIS Act should be removed from the Emergencies Act.
