Liberal government appeals ruling against use of Emergencies Act to Supreme Court
OTTAWA — The Liberal government is honking its final horn in its legal battle to validate its use of the Emergencies Act to deal with the 2022 Freedom Convoy protests.
Prime Minister Mark Carney’s government filed its application for leave to appeal to the Supreme Court of Canada (SCC) on Tuesday in the hopes that the highest court in the land will overturn two earlier decisions that ruled the use of the draconian act was unjustified as a way to stop the protests .
In its filing, the federal government argued that the Federal Court and Federal Court of Appeal applied the “wrong principles” and a “flawed approach” when they ruled that the government’s unprecedented decision to invoke the Emergencies Act on Feb. 12, 2022 was unconstitutional.
The government is also arguing that the SCC needs to make a final decision after the courts came to a different conclusion than the government-convened Public Order Emergency Commission (POEC), which found in 2023 that the invocation was reasonable.
“While the nature and purpose of the POEC differed from those of the court proceedings … their opposite conclusions create inconsistency and underscore the need for this Court’s intervention and guidance,” reads the application.
In January, the Federal Court of Appeal upheld a lower court decision that the Liberal government’s invocation of the Act to deal with lingering Freedom Convoy protests was unreasonable, unjustified and violated the Charter.
The challenge to the use of the act was brought forward by civil liberties groups such as the Canadian Civil Liberties Association (CCLA) and the Canadian Constitutional Foundation (CCF) as well as the provinces of Saskatchewan and Alberta.
The protest had lasted for weeks in Ottawa, with many large trucks parked on streets to protest the government’s pandemic lockdowns and vaccine mandates. At the time, the government argued it needed the exceptional powers granted by the act to freeze some convoy participants’ bank accounts, compel tow truck companies to co-operate with local police clearing out the trucks, and mark parts of downtown Ottawa as a no-go zone.
Within one week of the act’s invocation, police forces from across Canada had assembled in Ottawa to push out protesters..
But in 2024, the Federal Court ruled that the powers were unnecessary to deal with the Ottawa protest as well as sympathetic blockades at two border crossings in Coutts, Alta. and the Ambassador Bridge in Windsor, Ont.
In fact, Federal Court Justice Richard Mosley determined that existing provincial and municipal powers were sufficient to address the disruptive protests.
In his decision, Mosley agreed with the government that the pan-Canadian protests in early 2022 were causing harm to Canada’s economy, trade and commerce. But he concluded that the damages did not rise to the level of a threat to national security as defined by the law to invoke the exceptional and heavy-handed powers of the Emergencies Act.
“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,” he wrote.
“The harm being caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property,” he added.
RCMP had resolved the Coutts blockade prior to the invocation of the act.
In January, the Federal Court of Appeal upheld Mosley’s decision , also finding that Prime Minister Justin Trudeau’s cabinet did not have reasonable grounds to believe that the convoy created a national emergency.
“We are of the view that Cabinet did not have reasonable grounds to believe that a national emergency existed, taking into account the wording of the Act, its constitutional underpinning and the record that was before it at the time the decision was made,” wrote the court’s Chief Justice Yves de Montigny.
Now, the Supreme Court of Canada must decide if it will hear the case.
But the federal government faces a high bar for its appeal to be heard because there was no disagreement between the Federal Court and Federal Court of Appeal, meaning there are no major legal questions to be answered by the SCC.
Critics of the court are also likely to raise questions about SCC Chief Justice Richard Wagner’s comments months after the Freedom Convoy when he said that type of protest should “never happen again”.
During his annual press conference in 2022, Wagner described the impact of the Freedom Convoy’s blockades on many Ottawa business and individuals (particularly “the most vulnerable”) as “deplorable”.
In 2023, the head of the public inquiry looking into the government’s use of the Emergencies Act powers concluded that the invocation was reasonable, but barely.
“I have concluded that cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable,” wrote Commissioner Paul Rouleau.
But he noted that the evidence was not “overwhelming,” and “reasonable and informed” people could reach a different conclusion.
National Post
cnardi@postmedia.com
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