Friday, 23 February 2024

Ottawa's use of Emergencies Act against convoy protests was unreasonable, violated Charter, court rules

 
 

No response from Ottawa as deadline set by Emergencies Act commission passes

Findings from a year ago included 56 recommendations for the future

The Liberal government has missed a deadline to respond to the findings and recommendations of Justice Paul Rouleau, who headed a federal inquiry into the government's first and only use of the Emergencies Act in 2022.

One year ago, Rouleau issued his final report on the government's decision to declare a public order emergency during the self-styled "Freedom Convoy" protests, which gridlocked the streets around Parliament and blocked international border crossings.

Rouleau found the government was justified in invoking the act on Feb. 14, 2022, but made 56 recommendations for the future, including several suggested amendments to the law itself.

He ordered the government to respond to those recommendations within 12 months, to say which of them will be implemented and provide a timeline.

Rouleau didn't impose any penalties for missing the deadline, and it wasn't legally binding.

The public safety minister's office says it will have more information about the government's response "soon" and didn't offer a justification for missing Rouleau's deadline.

One possible wrench in the response is a Federal Court decision in January that contrasted Rouleau's conclusions. It called the government's invocation of the Emergencies Act a violation of the Canadian Charter of Rights and Freedoms.

Prime Minister Justin Trudeau declared the emergency just over two years ago, after thousands of protesters entrenched themselves in downtown Ottawa streets for weeks. They used big rigs and other vehicles in a demonstration of opposition to Trudeau's government and COVID-19 public health restrictions.

WATCH | Court ruling on Emergencies Act:
 

Emergencies Act: Why a judge ruled the feds got it wrong | About That

Duration 13:48
A federal judge says the Canadian government's use of the Emergencies Act in early 2022 to clear self-described Freedom Convoy protesters from Ottawa was unreasonable and infringed on their Charter rights. Andrew Chang breaks down the government's reasoning for invoking the law and the judge's argument against it.

Spinoff protests also blockaded border crossings with the United States and various provincial legislatures.

The emergency declaration granted extraordinary powers to governments, police and banks to limit the protesters' rights to freedom of assembly, freeze bank accounts and compel the co-operation of private companies, all in an effort to put a stop to the demonstrations.

It was the first time the legislation was invoked since it replaced the War Measures Act in 1988, which means the various inquiries and court challenges that have followed will set a precedent for the legal threshold to use it in the future.

Man with concerned expression, white hair and wearing suit and tie speaks into a microphone in front of Canada flag Justice Paul Rouleau released a report on the Liberal government's use of the Emergencies Act last year. (Adrian Wyld/The Canadian Press)

When Trudeau invoked the Emergencies Act, it triggered two investigations that were built into the legislation: a federal inquiry and a parliamentary committee, tasked with studying how the extraordinary powers granted to the federal government were used.

The committee was struck in March 2022 and has met more than two dozen times but has yet to file a substantial report. Its work has been stymied by a massive backlog of documents that must be translated into both official languages before they can be considered.

The translation work is expected to cost hundreds of millions of dollars, and MPs have expressed frustration about the delays.

The Federal Court ruling complicated matters further this week, as Conservative MP Glen Motz called for several ministers to be grilled by the committee for a second time.

He also asked for more information about the legal advice cabinet used to make its decision to use the legislation to try to quell the protests.

"Was this legal, did they follow the rules of law, was it Charter compliant? Those are all things that we need to examine as a committee," Motz said at a meeting of the committee Tuesday.

ABOUT THE AUTHOR


Laura Osman

Reporter

Laura Osman is a reporter for The Canadian Press.

 
 
 
 

'Freedom Convoy' organizer from Sask. suing federal government for using Emergencies Act to freeze accounts

Lawsuit says Chris Barber couldn't withdraw cash, deposit money or use credit cards

A main organizer of the "Freedom Convoy" is suing the federal government for using the Emergencies Act to freeze his bank accounts, arguing it breached his Charter rights to protest COVID-19 mandates.

Chris Barber, who owns a trucking company in southwestern Saskatchewan, filed last week a statement of claim in Court of King's Bench in Saskatoon, claiming the federal government's unprecedented move to invoke the act constituted an abuse of power.

"This disruption deprived [Barber and his wife] of the ability to conduct basic financial transactions and live normal lives, leading to severe inconvenience, hardship, embarrassment, exclusion from modern society, and damaged personal and business relationships," says the claim, which also names his wife and trucking business as plaintiffs.

None of the allegations have been proven in court.

The federal government has not filed a statement of defence. A spokesperson said in an email, "We will review the claims in order to determine next steps."

Barber and Tamara Lich, who is from Medicine Hat, Alta., spearheaded protests in opposition to COVID-19 vaccine mandates that gridlocked downtown Ottawa and key border points in 2022.

The two are on trial for mischief and other charges. The case has been in an Ottawa court for months.

A man led toward a police vehicle by two officers. Chris Barber, one of the organizers of the Freedom Convoy, is seen arrested by Ottawa police officers in downtown Ottawa on Feb. 17, 2022. (Kirk Hill/Facebook)

Barber's lawsuit comes weeks after Federal Court Judge Richard Mosley ruled it was unreasonable for the federal government to use the Emergencies Act to quell the protests.

The judge said invocation of the act led to the infringement of constitutional rights. He specifically cited a federal failure to require that "some objective standard be satisfied" before bank accounts were frozen, concluding it breached the Charter prohibition against unreasonable search or seizure.

The government has said it would appeal the decision to the Supreme Court of Canada.

Many protesters in large trucks rolled into Canada's capital in January 2022. For about three weeks, residents endured unrelenting horns from big rigs, diesel fumes and even a hot tub and bouncy castle.

Trucks also clogged key border crossings, including routes to the United States at Windsor, Ont., and Coutts, Alta.

On Feb. 14, 2022, Ottawa invoked the Emergencies Act. It allowed for temporary measures, including regulation of public assemblies and a ban on support for participants. It also directed banks to freeze assets for participants.

It was the first time the law had been used since it replaced the War Measures Act in 1988.

Protesters and police standing face to face in Ottawa, with the parliament building in the background. Police move in to clear downtown Ottawa of protesters after weeks of demonstrations on Feb. 19, 2022. (Cole Burston/The Canadian Press)

The statement of claim says all of Barber's personal and business bank accounts were frozen the next day without notice. He couldn't withdraw cash, deposit money or use credit cards, and automatic payments were blocked, it says.

One account was frozen for nine days and another was blocked until the next month, the document says.

Barber couldn't access money for daily living expenses like food, fuel or medicine, says the lawsuit. He also "suffered and experienced fear and anxiety due to the anticipated loss of income," because his salary, wage, and business revenue payments were going to the frozen accounts, it says.

That resulted in missed payments and defaults on loans and credit card bills, damaging his credit score, the document says. Barber is still being rejected for business funding applications and has been told his bank accounts will be "marred indefinitely," says the lawsuit.

It alleges the federal government froze bank accounts for the "improper purpose of dissuading and punishing" protesters for exercising fundamental Charter rights.

A separate but similar statement of claim against the federal government was also filed in Saskatoon court by Lauralee Mizu.

The lawsuit alleges Mizu's Charter rights were violated when her bank accounts were frozen. Mizu, who lives in a rural municipality south of Saskatoon, previously worked as a branch manager for a financial services company, says the document.

Invoking the Emergencies Act triggered an automatic federal commission to review the government's decision. Commissioner Paul Rouleau concluded last year that the federal government was justified in using the legislation.

A proposed class-action lawsuit against convoy organizers on behalf of Ottawa residents, workers and business owners is still working its way through court.

ABOUT THE AUTHOR


Kelly Geraldine Malone

The Canadian Press

Kelly Geraldine Malone is a reporter for The Canadian Press.

CBC's Journalistic Standards and Practices
 
 
 
 

2 years later, 'Freedom Movement' plans return to Parliament Hill

Ottawa police have 'robust plan' to deal with planned weekend gathering

Two years after police moved in to end the protest movement that became known as the Freedom Convoy, some of the same people who took part say they'll return to Parliament Hill to mark the anniversary.

While organizers of the reunion hesitate to put a figure on the number of protesters they're expecting this weekend, the Ottawa Police Service (OPS) said it's aware of social media posts and other activity related to a demonstration on Saturday.

In a statement to CBC, police said they've consulted with municipal, provincial and federal partners and are preparing accordingly.

"We are monitoring information and intelligence, and have a robust plan in place to deal with any demonstrations and to ensure public safety," OPS said.

"We also have an operational plan to address the possibility of a vehicle-based demonstration that will ensure that there is no vehicle-based protest in the Downtown core."

One of the organizers, Chris Dacey, told CBC he's been in contact with police to plan a "safe, lawful and peaceful event," and is unaware of any planned protest actions involving vehicles. 

A man points a cellphone toward a group of police officers in a city on a summer day. Organizer Chris Dacey, right, argues with police during a rally against LGBTQ-inclusive education policies on Sept. 20, 2023, in Ottawa. (The Canadian Press)

Police confirmed their planning includes communication with some of the organizers.

"We provide them with our expectations and direction on what is lawful and what will not be permitted," OPS said. "We appreciate the cooperation of organizers and participants as well as the patience of nearby residents and businesses that may be impacted by temporary road closures."

Gathering at biker church

Protest organizers say a convoy of vehicles is expected to travel to Ottawa from southern Ontario, with plans to gather at the Capital City Bikers' Church in Vanier before moving to Parliament Hill. 

A poster advertising the event has been widely shared on social media platforms.

Melissa McKee, co-pastor of the church, said one of the organizers coming from out of town has asked people to bring donations. 

"We had nothing to do with that," McKee said. "We didn't even know it was happening."

Three officers stand on Parliament Hill. Parliamentary Protective Service officers stand watch on Parliament Hill on Jan. 28, 2022, as the protest began to take shape. (Ivanoh Demers/CBC)

Nevertheless, McKee said she'll be on Parliament Hill this weekend because "it belongs to us."

"A lot has transpired in the last two years and when I think of what happened there, during convoy and after, I feel like it's the battleground," she said. "To go there and plant the Canadian flag, that's what I feel like we'll be doing."

Bethan Nodwell, who helped organize the Freedom Convoy in 2022 that blocked large swaths of the city's downtown core and was ended only after the federal government invoked the Emergencies Act, is expecting the anniversary event to be "particularly positive and light-hearted."  

Nodwell said she's expecting "a couple hundred" people to attend the event. 

"It's gonna be fun and playful, and there'll be speeches and music," she said. "I don't expect anything too crazy, to be honest. But I think that there'll be a really celebratory energy in the crowd."

The backs of two people on a snowy street. One wears a sweater saying 'Freedom Fighter.' 'Freedom Convoy' supporters leave Parliament Hill on Jan. 29, 2023, after marking the first anniversary of the protest's start. (Justin Tang/The Canadian Press)

Court decision gives hope

She cited a recent Federal Court decision that found the Liberal government's use of the Emergencies Act in early 2022 to clear convoy protesters was unreasonable and infringed on their Charter rights as one reason for optimism. The federal government is appealing that decision.

Nodwell and other supporters are also encouraged by a lawsuit launched this week by a Calgary-based firm on behalf of 24 people and businesses alleging they were "subjected to the unreasonable use of the Emergencies Act."

The lawsuit, which names Prime Minister Justin Trudeau, cabinet ministers, banks and others as defendants, seeks compensation of up to $1.75 million for each plaintiff.

Protesters and police standing face to face in Ottawa, with the parliament building in the background. Police move in to clear downtown Ottawa of protesters after three weeks of demonstrations on Feb. 19, 2022. (Cole Burston/The Canadian Press)

A federal committee that decides how Parliament Hill is used confirmed Thursday afternoon it had received and approved four event requests for Friday and Saturday, but said the details of those application are confidential. 

In a statement, Krista Tanaka, associate director of traffic services for Ottawa, said the city had not received any permit requests for a demonstration related to the "Freedom Movement" on Feb. 16 or 17, but confirmed three permits had been issued for unrelated demonstrations, including one near the Chinese Embassy and another in the city's west end. 

"Organizers of demonstrations do not technically require a permit to protest," Tanaka noted in a statement. "The right to peacefully demonstrate falls under the Canadian Charter of Rights & Freedoms."  

The planned event comes days after the public release of a CSIS report describing the movement as one that's against "perceived government overreach."

"While this perceived tyranny is widespread across the movement, other narratives are becoming increasingly common among adherents," according to the the April 2023 brief titled Defining the Freedom Movement. 

While the protesters' main motivation two years ago was their opposition to COVID-19 mandates, the report says the movement has turned its attention to several other issues, including gender politics, globalization and communism.

ABOUT THE AUTHOR


David Fraser

Reporter

David Fraser is an Ottawa-based journalist for CBC News who previously reported in Alberta and Saskatchewan.

CBC's Journalistic Standards and Practices
 
 
 
 

Convoy organizers want Ottawa police board to pay any damages in class action

3rd-party claim in ongoing lawsuit issued by Superior Court this week

If downtown Ottawa residents and businesses who say they suffered through loud honking and diesel fumes during the self-styled "Freedom Convoy" are awarded any money in their ongoing class action against organizers of the 2022 protest, the convoy organizers want Ottawa's police board to pay it.

It's a potentially big tab for the Ottawa Police Services Board that governs the force and approves its budgets. The plaintiffs in the Zexi Li class action, which has not yet been certified, are seeking $290 million.

Lawyers for Tamara Lich, Chris Barber and 10 other defendants in the class action have filed a third-party claim against the police board. It was issued by Superior Court this week.

They allege the police response to the protest was negligent and that because of the force's negligence, the police board should be on the hook for any losses or damages.

They claim that except for "a small number" of fewer than 40 tractor-trailers on Wellington Street in front of Parliament Hill, there was no plan to clog Ottawa's downtown with vehicles.

According to the claim, it was Ottawa police who directed them to park on residential downtown streets.

Three people with lanyards walk on a sidewalk. Convoy organizers Tamara Lich, left, and Chris Barber, right, make their way to the Public Order Emergency Commission in Ottawa in November 2022. They're among the defendants in an ongoing class action. (Adrian Wyld/The Canadian Press)

Police 'decided to change the plan'

The original plan was to stage the vehicles on Wellington and on "lengthy designated stretches" of the Sir John A. Macdonald Parkway (now renamed Kichi Zībī Mīkan) to the west and the Sir George-Étienne Cartier Parkway to the east, the claim states.

"But for some reason, the Ottawa police decided to change the plan," said James Manson, one of the lawyers representing the convoy organizers, this week.

"And so our argument will be that if that had not taken place, if the trucks had parked where they all had understood they were going to park, then there wouldn't have been any trucks downtown, and therefore there couldn't have been a nuisance caused the way that the plaintiffs are claiming it."

The third-party claim also alleges police were negligent when they:

  • Became overwhelmed with the number of vehicles despite organizers' efforts to warn them.
  • Failed to read intelligence reports, watch the news or review other reporting that "widely recognized the size and scale of the protest (or, that police were aware but chose to disregard it).
  • Failed to mount an adequate plan.
  • Put "inexperienced officers in leadership positions."
  • And did not direct vehicles to leave downtown "when it became known they would not leave" on their own (or that police didn't do so in a timely manner).

Both the Ottawa Police Services Board and Ottawa Police Service declined to comment. The board has 20 days to respond to the third-party claim once it's served, which could take up to 30 days.

Vehicles, some of them large and many with Canada flags, are parked on a city's residential street in winter. Trucks and other vehicles are parked on a residential stretch of Kent Street in Ottawa's Centretown neighbourhood on Feb. 13, 2022. (Joanne Chianello/CBC)

'An interesting legal manoeuvre'

Paul Champ, the lawyer representing Zexi Li and the other plaintiffs in the class action, thinks the arguments in the claim are a bit rich.

It's true that Ottawans were angry with police during the protest and repeatedly said they felt the force wasn't protecting them, he said.

"But I'm not sure if it necessarily is the place of the protesters themselves to say, 'Well, [police] made me do it,'" Champ added.

"We did see a little bit of that in the Public Order Emergency Commission, that the police had in fact escorted them downtown and given them areas to park. And no doubt the people of Ottawa were very upset about that, so it's an interesting legal manoeuvre.

"I'm not sure if it necessarily flies to blame someone else for your own unlawful activity, but we'll see how the Ottawa police respond."

A lawyer poses for a photo in a hallway. Paul Champ is the lawyer representing plaintiffs in a class action against organizers of the self-described 'Freedom Convoy.' (CBC)

As for the allegation that police didn't direct protesters to leave, Champ said it's "patently untrue" that no one did.

"I don't think it could have been any clearer that these these folks were behaving unlawfully and that they had passed the threshold of a peaceful assembly," he said.

Manson, the lawyer for the convoy organizers, said he's not aware of any evidence suggesting Ottawa police "directed the truckers to leave in the same way that they directed them to park," and that if such evidence exists, police can raise it in discovery if they choose.

ABOUT THE AUTHOR


Kristy Nease

Reporter

CBC Ottawa multi-platform reporter Kristy Nease has covered news in the capital for 15 years, and previously worked at the Ottawa Citizen. She has handled topics including intimate partner violence, climate and health care, and is currently focused on justice issues and the courts. Get in touch: kristy.nease@cbc.ca, or 613-288-6435.

CBC's Journalistic Standards and Practices
 
 
 
 

Lawsuit against convoy organizers moves forward

Decision pitted Ottawa residents' property rights against protesters' right to use pressure tactics

A $300-million class-action lawsuit filed against Freedom Convoy protesters, donors and organizers on behalf of downtown Ottawa residents and businesses is moving forward after a judge ruled against a motion filed by the defendants.

Superior Court Justice Calum MacLeod heard arguments in December for and against a motion brought under anti-SLAPP (strategic lawsuit against public participation) legislation. 

The legislation serves to protect people from vexatious lawsuits filed to silence opponents through legal and financial intimidation. Convoy organizers filed the motion in an attempt to have the lawsuit tossed, arguing it amounted to an attack on freedoms of expression. 

Lawyers representing the defendants, who include Tamara Lich and Chris Barber, argued political expression is fundamental to society. 

But in his decision released Tuesday, MacLeod sided with residents and businesses by dismissing the motion. 

He wrote that the case pitted the rights of individuals to use their property and public streets against the rights of protestors to make their grievances heard by using pressure tactics against the government. 

A map showing the zone considered the "occupation zone" in the class action lawsuit brought by residents of Ottawa against convoy protest organizers.     The shaded areas on the map of downtown Ottawa were added to the 'occupation zone' outlined in the class action. (Simon Smith/CBC)

Plaintiffs' case 'meritorious,' judge finds

The defendants argued that because their use of free expression was in the public interest, the plaintiffs did not meet the threshold required to launch a lawsuit.

MacLeod disagreed, writing in his decision that the plaintiffs have a "meritorious case." 

"There is evidence that certain plaintiffs were subjected to what they contend to have been extreme amounts of noise, horn honking, incessant diesel fumes and other pollution, blockage of the streets and intimidation. There is evidence that plaintiffs had difficulty accessing their properties and that business was disrupted, reservations cancelled, and revenue negatively impacted," the decision reads.

While recognizing the defendants deny having had a common intention to block streets or pressure government by creating hardship on residents, MacLeod wrote it could still be concluded that disrupting daily life in the city is what organizers and participants were after. 

"It cannot be said on the limited evidentiary record available on this motion that any of the potential defences are likely to prevail," the decision says. 

Paul Champ, the lawyer who is bringing forward the class action, said in a statement he was "pleased" with the outcome. 

"Another attempt by the defendants to derail this litigation has proven unsuccessful," his statement read. "We remain committed to obtaining justice and redress for the people of downtown Ottawa."

Lawyers representing the defendants say they are reviewing the decision and did not have any immediate comment.

ABOUT THE AUTHOR


David Fraser

Reporter

David Fraser is an Ottawa-based journalist for CBC News who previously reported in Alberta and Saskatchewan.

CBC's Journalistic Standards and Practices
 
 
 
 

Ottawa's use of Emergencies Act against convoy protests was unreasonable, violated Charter, court rules

Government says it plans to appeal the decision

A federal judge says the Liberal government's use of the Emergencies Act in early 2022 to clear convoy protesters was unreasonable and infringed on protesters' Charter rights.

In what's already turning into a divisive decision, Federal Court Justice Richard Mosley wrote that while the protests "reflected an unacceptable breakdown of public order," the invocation of the Emergencies Act "does not bear the hallmarks of reasonableness – justification, transparency and intelligibility."

Ultimately, there "was no national emergency justifying the invocation of the Emergencies Act," he wrote.

WATCH | Federal government plans to appeal court ruling 
 

'We will be appealing,' Freeland says after court ruling on Emergencies Act

Duration 1:35
Deputy Prime Minister Chrystia Freeland says that she remains ‘convinced’ that invoking the Emergencies Act in early 2022 was ‘the necessary thing to do.’ A federal judge ruled Tuesday that the government’s use of the act was unreasonable.

The Federal Court case was argued by two national groups, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, and two people whose bank accounts were frozen. They argued Ottawa did not meet the legal threshold when it invoked the legislation, which had never been used before.

The federal government says it already plans to appeal.

Prime Minister Justin Trudeau's government invoked the Emergencies Act on Feb. 14, 2022 after thousands of protesters angry with the Liberals' response to the COVID-19 pandemic, including vaccine requirements, gridlocked downtown Ottawa for nearly a month and blocked border points elsewhere across the country. The protests gained international attention for bringing parts of the capital city to a halt.

The act gave law enforcement extraordinary powers to remove and arrest protesters and gave the government the power to freeze the finances of those connected to the protests. The temporary emergency powers also gave authorities the ability to commandeer tow trucks to remove protesters' vehicles from the streets of the capital.

Under the Emergencies Act, a national emergency only exists if the situation "cannot be effectively dealt with under any other law of Canada." Further, a public order emergency can be declared only in response to "an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency." 

The act defers to the Canadian Security Intelligence Service's definition of such threats — which includes serious violence against persons or property, espionage, foreign interference or an intent to overthrow the government by violence.

A line of semis can be seen on the highway, driving away from the protest. On top of the first truck sits a red and white sign reading "end all mandates." Anti-COVID-19 vaccine mandate demonstrators leave in a truck convoy after blocking the highway at the busy U.S. border crossing in Coutts, Alta. on Tuesday, Feb. 15, 2022. (Jeff McIntosh/The Canadian Press)

The government cited the situation in the Alberta border town of Coutts when it invoked the act. In the early hours of Feb. 14, before the act was invoked, Mounties in Coutts seized a cache of weapons, body armour and ammunition. 

Four men are now awaiting trial, accused of conspiring to murder RCMP officers.

Economic orders infringed on Charter rights: judge 

Mosley said the situation created by the protests across the country did not meet the legal threshold.

"The potential for serious violence, or being unable to say that there was no potential for serious violence was, of course, a valid reason for concern," he wrote. "But in my view, it did not satisfy the test required to invoke the Act, particularly as there was no evidence of a similar 'hardened cell' elsewhere in the country, only speculation, and the situation at Coutts had been resolved without violence."

Mosley's decision also examined one of the most controversial steps taken by the government in response to the protests — the freezing of participants' bank accounts.

"I agree with the [the government] that the objective was pressing and substantial and that there was a rational connection between freezing the accounts and the objective, to stop funding the blockades. However, the measures were not minimally impairing," he wrote.

The judge said the economic orders infringed on protesters' freedom of expression "as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace."

He also concluded the economic orders violated protesters' Charter rights "by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts." 

The two men whose bank accounts were frozen also argued that their rights under the Canadian Bill of Rights were violated, but Mosley disagreed.

He also concluded that the government's actions did not infringe on anyone's right to freedom of peaceful assembly.

Government plans to appeal

Noa Mendelsohn Aviv, executive director of the CCLA, said their win sets a clear and critical precedent for future governments.

"Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy," she said. "They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws."

Joanna Baron, executive director of the Canadian Constitution Foundation, said the decision is a "huge vindication for many people."

"[Mosley] also mentioned that economic disruption cannot form the basis for the invocation of extraordinary measures such as those contained in the Emergencies Act, which I think would lead to a very disturbing precedent across Canada, for example in the event of labour strikes and disruptions," she said. 

The government has long argued the measures it took under the Emergencies Act were targeted, proportional and temporary.

A row of protesters yells at a row of police officers in front of a legislature in winter. Police move in to clear downtown Ottawa near Parliament hill of protesters after weeks of demonstrations on Saturday, Feb. 19, 2022. The public inquiry investigating the federal government's unprecedented use of the Emergencies Act in February begins today in downtown Ottawa. (Cole Burston/The Canadian Press)

Deputy Prime Minister Chrystia Freeland told reporters at a cabinet retreat in Montreal on Tuesday that the government plans to appeal the decision, setting up a legal battle that could go all the way to the Supreme Court of Canada.

"We believed we were doing something necessary and something legal at the time," she told reporters on Tuesday. "That continues to be my belief today."

"This was an extremely tense time. The safety of individual Canadians was under real threat … Our national security was under real threat – our national security, including our economic security," she said Tuesday.

Speaking alongside Freeland on Tuesday, Public Safety Minister Dominic LeBlanc said that the situation at Coutts and other border crossings helped to inform the government's decision to invoke the act.

"It's not banal when the security services tell you that they found two pipe bombs and 36,000 rounds of munition and ended up laying criminal charges as serious as to commit murder," he said. "So the context is important."

Mosley said those findings were "deeply troubling" but suggested the threats were being dealt with by the police of provincial and local jurisdiction outside Ottawa.

The judge wrote that it may be "unrealistic" to expect the federal government to wait when the country is "threatened by serious and dangerous situations," as the provinces or territories decide whether they have the capacity or authority to deal with the threat.

"However, that is what the Emergencies Act appears to require." he said.

Rouleau commission reached different conclusion

A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government's use of the Emergencies Act in the fall of 2022 and came to a different conclusion.

After hearing from dozens of witnesses and reviewing thousands of never-before-seen documents, including cabinet ministers' text messages, Rouleau concluded the federal government met the "very high" threshold needed to invoke the Emergencies Act, citing "a failure in policing and federalism."

"Lawful protest descended into lawlessness, culminating in a national emergency," he wrote.

Justice Minister Arif Virani said the government cited Rouleau's conclusions when discussing the government's decision to appeal Mosley's ruling.

"[Rouleau's] decision stands at odds with the decision that was rendered today and I think that is important and that also informs our decision to appeal," Virani told reporters Tuesday.

WATCH | Commissioner says federal government met the threshold
 

Federal government met threshold to invoke Emergencies Act: report

Duration 3:24
The final report out of the Emergencies Act inquiry found the federal government met the threshold to use it, as convoy protesters choked downtown Ottawa and blocked border crossings in early 2022. Still, Commissioner Paul Rouleau calls out police and the Ontario government for missteps in their responses.

CSIS Director David Vigneault testified that he supported invoking the Emergencies Act, even if he didn't believe the self-styled Freedom Convoy met his agency's definition of a threat to national security. 

In his final report, Rouleau argued that the definition of "threats to the security of Canada" in the CSIS Act should be removed from the Emergencies Act.

Rouleau, an Ontario Court of Appeal justice, said he reached his conclusion with some reluctance.

"I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming," he said in statements he gave after his report was made public.

"Reasonable and informed people could reach a different conclusion than the one I have arrived at."

Mosley heard arguments in court over three days last April. He wrote that at the outset of the proceedings, he felt the protests in Ottawa and elsewhere went "beyond legitimate protest and reflected an unacceptable breakdown of public order." 

He said he reached his decision "with the benefit of hindsight" and a more extensive record of facts and law than cabinet had available to it when it made its decision.

Political reaction 

Conservative Leader Pierre Poilievre was quick to condemn the government and Prime Minister Trudeau personally.

"He caused the crisis by dividing people," he posted on the social media platform X. "Then he violated Charter rights to illegally suppress citizens. As PM, I will unite our country for freedom."

NDP Leader Jagmeet Singh said that his party reluctantly supported the invocation of the act.

"The reason we were in that crisis was a direct failure of Justin Trudeau's leadership and also other levels of government that failed to act," he said during a caucus meeting in Edmonton.

Singh said his party will watch to see where the appeal goes.

ABOUT THE AUTHOR

Catharine Tunney is a reporter with CBC's Parliament Hill bureau, where she covers national security and the RCMP. She worked previously for CBC in Nova Scotia. You can reach her at catharine.tunney@cbc.ca

With files from Darren Major

 
 
 
 
 
 
 
 
 
 
 
 

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