The Federal Court of Appeal on Tuesday opened a two-day hearing on the federal government’s pursuit to overturn a 2024 decision that ruled the invocation of the Emergencies Act unlawful.
Justice Richard Mosley in January 2024 ruled Prime Minister Justin Trudeau’s Liberal cabinet’s use of the historical Emergencies Act (originally named the War Measures Act — which was only ever used once in the history of Canada: under Trudeau’s father, former Prime Minister Pierre Elliot Trudeau) on peaceful protesters in Ottawa was “unlawful” and “unnecessary.”
Trudeau’s lawyers immediately submitted an appeal in the Canadian Constitution Foundation (CCF) legal challenge to the Emergencies Act case, to be heard Tuesday and Wednesday of this week by a panel of three judges in Toronto.
The Emergencies Act has two legal requirements to prevent authoritarian abuse: the situation must meet the criteria of a “national emergency” and a “threat to national security.”
Mosley found there was no national emergency and no threat to national security.
The Attorney General in arguing the government's appeal on Tuesday justified the invocation of the Emergencies Act with the following claims (which have not been upheld by the court):
• The Freedom Convoy fuelled fear, unrest and harassment of citizens
• Protesters brought their children to serve as "human shields," The AG claimed 25% of protesters brought their kids, without providing evidence for either claim
• The Convoy had links to "white supremacy" and "anti-vaccine" groups, claiming there were yellow Star of David flags (with the word "unvaxxed" written across them), Nazi flags, SS-affiliated flags and Confederate flags.
• Economic damage, in the form of $400M in Canada-US trade (and a claim there were "now border blockade popping up every other day," listing Coutts, Manitoba, Windsor, Sarnia and Lake Eerie.
Despite all these allegations, CSIS did not deem any of it a national security threat.
The Emergencies Act was declared on February 14, 2022, during the 2022 Freedom Convoy in Ottawa, where Canadians from across the country gathered to protest COVID-19 mandates.
In invoking the act, Trudeau’s Liberals instructed Canadian banks to freeze the accounts of anyone who participated, or even donated to, the Freedom Convoy.
Mosley found the orders to freeze bank accounts were a violation of the “constitutional right to be secure against unreasonable searches and seizures, and that the restrictions on protests violated the right to freedom of expression,” according to CCP Litigation Director Christine Van Geyn.
Van Geyn says the Trudeau government spent more than $2.2 million fighting the CCF legal challenge against the invocation of the Emergencies Act, “only to lose on almost every measure.”
“For the appeal, the government has hired new private sector lawyers whose high hourly rates will be paid with taxpayer money,” said Van Geyn.
The CCF argues the appeal in case A-73-24 Attorney General of Canada v. Canadian Civil Liberties Association et al. should be dismissed because the Emergencies Act legal requirements were not met, rendering the invocation unlawful.
The definition of “threats to the security of Canada” under the Emergencies Act is the same as that under the CSIS Act.
CSIS Director David Vigneault in February 2022 had informed the Trudeau government the definition was not met and cabinet “failed to wait for an alternative assessment of the facts before invoking the Emergencies Act,” wrote Van Geyn.
The CCF challenge also focuses on the “level of deference owed to cabinet in their decision to invoke the act … the government is claiming that cabinet essentially has unfettered discretion.”
“This goes against the actual text of the Emergencies Act as well as the history and context of the legislation, which was enacted to ensure there were proper guardrails on the legislation so it could not be abused like its predecessor, the War Measures Act,” said Van Geyn.
“The Trudeau government’s decision to invoke this law, and their argument on appeal, shows willful historic blindness. While Justin Trudeau is no constitutional scholar, the decision to invoke the Emergencies Act shows an unsettling ignorance of not just Canadian history but his own family history. The Emergencies Act was created to replace the War Measures Act, a piece of legislation that was abused by Justin Trudeau’s own father, Pierre Elliott Trudeau, when he was Prime Minister.”
Due to the abuse by Pierre Trudeau’s use of the War Measures Act, the Emergencies Act was designed with an especially high threshold — one vetted and voted on by Parliament.
Vigneault’s conclusion that there was no threat to the security of Canada was pivotal — an assessment that was confirmed even after the “cache of weapons” was found at Coutts, AB.
“If Trudeau and his cabinet reached a different conclusion from CSIS, they needed to explain why,” said Van Geyn.
“Instead they have hidden behind cabinet confidentiality, claimed they cannot disclose why they reached any different conclusion from CSIS, and demanded the public accept the use of this extraordinary legislation to freeze the bank accounts of Canadian protesters for unknown mysterious reasons.”
