The War Measures (Emergencies) Act, which we refer to here as the EA, was invoked on Valentine’s Day 2022 to disperse the truckers’ convoy in downtown Ottawa and a couple of blockaded border crossings with the US.It gave law enforcement extraordinary powers to arrest protesters and gave the Government of Canada the power to freeze bank and credit card accounts.Almost a year ago, the final report on the EA Inquiry, authored by Paul Rouleau of the Ontario Court of Appeal, found the Government of Canada had met the threshold of an emergency needed to invoke it. He said it was “a drastic move, but not a dictatorial one.”At the time, many Canadians disagreed. The Canadian Civil Liberties Association, for example, said the emergency threshold “was not met.” Even Rouleau said the whole thing could have been avoided.On January 23rd 2024, Mr. Justice Richard Mosley of the Federal Court in Ottawa found that most of the reasons provided by the Government of Canada to proclaim the EA were in fact unreasonable and illegal.His conclusions have been widely reported in the legacy media, though the most interesting part, Mosley’s 190-page Reasons for Judgment, which contain his argument why the implementation of the EA was illegal, have been almost ignored.And Mosley raised a very important question: did the Cabinet have a reasonable belief that reasonable grounds existed to declare a public order emergency? They had to have more than a hunch or a suspicion. Invoking the EA may be discretionary but it is not whimsical. It must be “reasonable,” where that term means justifiable in terms of relevant factual and legal constraints, transparent in the sense of being based on evidence and intelligible.According to the EA, a national emergency is said to exist in a situation that seriously endangers the lives of Canadians, that cannot be dealt with by already existing laws and that exceeds the ability of the provinces to deal with it.The EA legislation refers to the 1985 CSIS Act for a definition of a threat to the security of Canada, which included espionage, foreign interference, insurrection and, relevant for the truckers’ convoy, the threat or use of “acts of serious violence” to achieve a political, religious or ideological aim.The phrase 'serious violence' was inserted in the 1985 act in order to 'constrain' CSIS from exercising its intrusive powers regarding trivial nuisances — as its predecessor, which was part of the RCMP, did not do.Mosley noted the director of CSIS had advised Cabinet that the Service did not consider the protest a threat to the security of Canada. Canada’s National Security Intelligence Advisor warned that using the EA would “increase the number of Canadians” holding anti-Government opinions. Obviously, that would be a consequence of invoking the EA, not a reason to do so.Mosley found easily enough that the CSIS threshold was not met.In contrast, the Privy Council Office, which houses the elite of the federal bureaucracy, said that there was enough evidence to proclaim the EA, but that doing so “may be vulnerable to challenge.” It was. Indeed, Justice Mosley said that the evidence in support of the PCO recommendation “was not abundant” and was based primarily on evidence discovered at the border blockade at Coutts. So, what happened at Coutts?There the RCMP found weapons, ammo and body armour, one piece of which was adorned with a logo used by an organization called “Dialogon.” Mosley agreed that the discovery of the guns and ammo was “deeply troubling.” The events at Coutts seem to have completely freaked out the PCO and the cabinet.What caught their attention was Dialogon. This outfit, apparently, aspired to create a “diagonal” country from Alaska to Florida. Really?Pierre Poilievre called them a bunch of losers. The PCO and the Trudeau Cabinet saw them as a serious threat to Canada. Such an opinion says a great deal about their collective lack of common sense, but the important legal considerations lie elsewhere.Alberta, using the RCMP, the contracted provincial police force, along with the Alberta Sheriffs, dealt with the Coutts situation before the EA measures were proclaimed. That is, they acted without benefit of them. Alberta relied on the Criminal Code and the Alberta Critical Infrastructure Defence Act to clear the blockade.The Ottawa protest may have been objectionable and inconvenient to locals and the Ottawa Police Service — as is true of just about everything else in that city — and may have been monumentally incompetent, but that “did not amount to serious violence or threats of serious violence.” Most premiers agreed that the EA was not needed because provincial law enforcement agencies could take care of things, just as Alberta did at Coutts.The cabinet was as spooked as the PCO. They said that new blockades could emerge at any time. Mosley called this a “whack-a-mole scenario” and not surprisingly concluded that, as Alberta had shown, using existing laws and acting alone, there was “no national emergency” to justify the EA proclamation.Two additional comments may be in order. First, Mosley said he was “leaning” toward the view that the decision to invoke the EA was reasonable when the proceedings began but was persuaded by the arguments of the Canadian Civil Liberties Association and the Canadian Constitutional Foundation to change his mind. Good for him!Second, Deputy Prime Minister Chrystia Freeland said the government did not agree with the Mosley decision. “The public safety of Canadians was under threat,” she declared, as if words could make it so. Accordingly, Mosley’s decision would be appealed. Given the persuasive nature of his Reasons for Judgment and the irrationality of the Government of Canada, the high court should refuse to hear the appeal or failing that, dismiss it abruptly. Any other course would indicate once again that they have become little more than a branch of the executive.
