On Final Day of Court Challenge, Government Lawyers Argue Cabinet was Justified in Invoking Emergencies Act

Thousands gather on Parliament Hill on the first day of the Freedom Convoy protest against COVID-19 mandates and restrictions, in Ottawa on Jan. 29, 2022. (Limin Zhou/The Epoch Times)

A lawyer for the Attorney General argued in court on April 5 that civil liberties’ lawyers were engaging in “revisionist history” by asserting that the Freedom Convoy was under control when cabinet invoked the Emergencies Act to quell the protest last winter.

“You’ve heard from my friends that the situation was getting under control by February 14 when the Public Order Emergency was declared. This is a little short of revisionist history, or at the very least an interpretation of a state of affairs that benefits from hindsight bias,” said lawyer for the Attorney General John Provart.

“Without the ability to know how things would have ended up if emergency measures had not been taken, it’s not unreasonable to speculate that they would have been far worse.”

From April 3 to 5, the court heard from groups who filed legal challenges contesting the use of the emergency measures. They include the Canadian Constitution Foundation, the Justice Centre for Constitutional Freedoms, and Canadian Frontline Nurses, as well as individuals Jeremiah Jost, Edward Cornell, Vincent Gircys, and Harold Ristau.

The Civil liberties groups have argued that the situation was already being resolved when the government invoked the Emergencies Act on Feb. 14, 2022.

The recent Public Order Emergency Commission, which reviewed the invocation of the Emergencies Act, found the Liberal government met the “very high threshold” for using the measure.

Lawyers for the Attorney General have argued that the government acted lawfully when invoking the Emergencies Act in response to the Freedom Convoy protests.

Provart said the act needed to be examined at in the context of the “dramatic” situation unfolding on the ground. Measures that law enforcement had taken against the protesters had “proven ineffective,” he said, and claimed they had faced violence from the protesters.

The lawyer said the border blockade at Windsor in Ontario was disrupting $390 million in trade with the United States every day, which “imperiled the welfare of Canadians” by disrupting the transport of crucial medical supplies, food, and fuel. Additional blockades were also being threatened across the country, he said.

On April 4, CCLA lawyer Ewa Krajewska pointed out that the border blockades in Windsor and in Coutts, Alberta, had been solved without the Emergencies Act.

Provart also highlighted the weapons cache that the RCMP found in Coutts, Alberta, which “underscored the potential for serious violence amongst certain participants of groups within the convoy movement,” especially given the “unpredictability and the volatility of the threats leading up to it.”

He said it would have been inappropriate for the government to wait for there to be a loss of life to act. “Parliament did not intend for the government to have to wait until it was too late,” he said.

The lawyer also addressed the civil liberties groups’ claim that 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.

Provart said the CSIS Act and Emergencies Act are “different regimes” that “serve different purposes involve different actors and implicate different considerations.” He said while the input of CSIS was an important consideration for the government, it should not have been a determinant for invoking the Emergencies Act.

Charter Rights Not Violated, Say Lawyers

Lawyer for the Attorney General David Aaron said the freezing of the bank accounts of protesters following the Emergency Act’s invocation did not violate Section 8 of the charter, which protects against unreasonable search and seizure, contrary to the arguments of civil liberties lawyers the previous day.

Aaron argued that Section 8 does not give constitutional protection on property rights, and that the prohibition on unreasonable search and seizure protected privacy and not property.

“This undermines the applicants argument that the temporary freezing of their assets by financial institutions pursuant to Section 2 of the economic order violated their Section 8 rights,” he said.

“In any event, it’s our submission that no seizures occurred,” he added, saying there was no evidence that any funds from protesters were taken or retained. He said the two applicants before the court who had had their funds frozen confirmed their funds were unfrozen shortly after they stopped participating in the protest.

Lawyer for the Attorney General Christopher Rupar argued the Emergencies Act did not violate Section 2 charter rights—which deal with the fundamental freedoms of Canadians—by prohibiting them from protesting in downtown Ottawa.

Rupar said in Canada, some freedoms are subject to limitations “as are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” He said while the Emergencies Act prohibited Canadians from protesting downtown, it was a “very specific, very targeted” prohibition.

“If you want to have a peaceful protest... all you have to do is step outside of the designated area you can have that peaceful protest,” he said.

April 5 was the final day of the proceedings. The judicial review is not bound by the Public Order Emergency 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.