John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca).The Federal Court of Appeal has thankfully affirmed a powerful 2024 ruling in which the Federal Court’s Trial Division declared that the federal government acted illegally when freezing bank accounts and inflicting violence on peaceful protesters in 2022.The federal government’s decision to issue the Proclamation of a national emergency in February 2022 did not bear the hallmarks of reasonableness: justification, transparency, and intelligibility. The lower court’s ruling was a great victory for truth, justice, freedom, and the rule of law. The Federal Court of Appeal’s affirmation of the lower court ruling is another victory.The lower court ruling from January 2024 was a firm denunciation of Prime Minister Trudeau’s use of emergency powers to shut down the peaceful Freedom Convoy protest in Ottawa in February of 2022. The lower court ruled that freezing bank accounts and using violence against peaceful protesters was “not justified in relation to the relevant factual and legal constraints” required by the Emergencies Act.The Justice Centre provided lawyers for four Canadians who participated in the Freedom Convoy and who challenged the invocation of the Emergencies Act in Federal Court. These court applicants were Jeremiah Jost, Edward Cornell, Rev. Harold Ristau, and Vincent Gircys, all of whom suffered serious harm as a result of the emergency measures, including the freezing of bank accounts.The lower court found that the prime minister and his cabinet did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Emergencies Act, so therefore their decision was ultra vires (outside of the powers) of the legislation. In 2022 in downtown Ottawa, there was no “serious violence or threats of serious violence” as defined by the Emergencies Act. The protesters’ Charter-protected right to be free from unreasonable search and seizure was unjustifiably violated when the federal government froze their bank accounts. Noting that “protests are inherently disruptive and are constitutionally protected political expression that goes to the core of the freedom,” and that “political speech is granted the highest level of protection because of its essential role in democratic life,” the lower court also found that the emergency powers unjustifiably violated Charter-protected freedom of expression. Regarding the freezing of bank accounts, the lower court noted that the RCMP provided names to financial institutions, without any objective standard to protect the innocent. Accounts were frozen based only on “bare belief” of the RCMP, without the normal standard of either reasonable grounds or a standard of reasonable suspicion. Therefore, the failure to require that some objective standard be satisfied before the accounts were frozen breached the Charter section 8 protection against unreasonable search and seizure..The federal government has faced an uphill battle in appealing the lower court ruling. In January 2024, Chrystia Freeland announced on behalf of the federal government that it would appeal the ruling. She did so in less than an hour after the judgment was released. The lower court ruling exceeds 53,000 words laid out on more than 100 pages. There is no way that Ms. Freeland, or other cabinet ministers, or even Justice Department lawyers, could have finished reading the ruling prior to the government announcing its intention to appeal. They had no knowledge of what might possibly be wrong with the ruling, or what might justify appealing it. The appeal was based purely on arrogance, not on legal analysis.The federal government also faced an uphill fight because the lower court judge, Richard Mosley, was not at all sympathetic to the Freedom Convoy protest in Ottawa in January and February of 2022. He ruled against the federal government’s use of the Emergencies Act even while intensely disliking the protest. For example, Justice Mosley made several references to the inconsequential (and likely non-existent) “Diagolon” group, as though it was relevant and influential. He refers to Nazi swastika flags as though they represented the sentiments of peaceful truckers in Ottawa, when in fact only one such flag was ever displayed, once, briefly, by an anonymous individual, who could have been someone who sought to discredit Freedom Convoy. He claimed that “symbols of hate” characterized the heart or the nature of a peaceful protest that was (unlike many protests) devoid of arson, assault, vandalism, threats, and violence. He accused the Freedom Convoy “blockaders” of inflicting “very real harm” to Canada’s economy, trade, and commerce, without mentioning how years of government lockdowns caused far more damage to far more people.The lower court’s negative attitude towards the Freedom Convoy made it all the more difficult for the federal government to appeal this ruling. Justice Mosley ruled against the federal government because “the record does not support a conclusion that the Convoy had created a critical, urgent, and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada” – which is what the Emergencies Act requires to justify its use.Four years after the federal government used violence against peaceful protesters and froze Canadians’ bank accounts, it is refreshing and encouraging to see a higher court rebuking and denouncing this conduct.John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca), which provided lawyers to Jeremiah Jost and other Freedom Convoy applicants in their court challenge to the federal government’s use of the Emergencies Act to crush a peaceful protest.
