Truckers block lanes of traffic to protest against pandemic restrictions in Ottawa in February, 2022.Ted Shaffrey/The Associated Press
The federal government’s decision to ask the Supreme Court of Canada to overturn a lower-court ruling that censured its use of the Emergencies Act against protesting truckers is an affront to civil liberties and capitalism.
Ottawa filed its appeal application on Tuesday, arguing that two earlier court decisions in this case were flawed and “hamstrings governments’ ability to respond effectively to future crises.”
Prime Minister Mark Carney should be concerned instead about his predecessor’s ham-fisted invocation of the crisis legislation against civilians participating in a 2022 political protest. Apparently, Mr. Carney, who called the Ottawa blockade “sedition” in an op-ed for The Globe and Mail that year, is sticking to that view.
The truckers may not garner much sympathy after their reprehensible behaviour during the protests. But make no mistake, the government’s decision to seek an appeal is a one-finger salute to all Canadians and corporations, including banks and insurers, which were co-opted to quell political dissent.
Let’s hope the Supreme Court denies the government’s request because a costly appeal is not in the public interest, especially after Ottawa suffered two decisive legal defeats.
Group asks Supreme Court chief justice to recuse himself from Emergencies Act case
The most recent of those losses was on Jan. 16, when the Federal Court of Appeal unanimously upheld a lower-court decision that found Ottawa was not justified in using the Emergencies Act against participants in the trucker convoy.
“As disturbing and disruptive the blockades and the Convoy protests in Ottawa could be, they fell well short of a threat to national security,” stated the Federal Court of Appeal.
The former Trudeau government invoked the Emergencies Act on Feb. 14, 2022, and temporarily wielded extraordinary powers, including barring citizens from participating in public assemblies. A related economic order directed banks to freeze personal and business accounts, and ordered insurers to suspend coverage on vehicles such as semi-trailers.
“It turned us into a banana republic with polar bears,” said John Carpay, president of the Justice Centre for Constitutional Freedoms, in an interview on Wednesday.
“We used to look down on regimes where you criticize the president and then all of a sudden, you’re locked up in jail.”
The Federal Court of Appeal said “the most egregious problem” with the economic order was that “personal banking information belonging to individuals” who were suspected of committing offences was shared with the RCMP and CSIS without a warrant or prior authorization.
It also stressed that businesses, including banks and crowdfunding platforms, were “effectively deputized” to act as agents of the state and required to turn over account-holders’ personal information using a “relatively lax” standard.
The court took issue with the RCMP’s advice to banks on how to identify account-holders and determine whether they were participating in unlawful activity. It seems the Mounties counselled lenders to “leverage the news” and use information on the internet and social media.
What a cavalier way to conduct investigations.
It is shameful that Ottawa put private-sector businesses in such a terrible position. As The Globe reported at the time, the economic order created confusion for banks.
Indeed, the Federal Court of Appeal was critical of the lack of redress for the affected customers.
From Feb. 15 to 23, 2022, the RCMP disclosed information about 57 entities and individuals to financial institutions, resulting in the temporary freezing of about 257 accounts, according to the court.
The government still owes Canadians answers about what happened to the lists of customers and accounts that were shared between banks, the RCMP and CSIS.
“I know a man who works for a financial institution and was shocked to see this list of names come across his desk,” wrote Josh Dehaas, interim litigation director of the Canadian Constitution Foundation, in an e-mail on Wednesday.
Will these customers face long-term financial consequences even though only some were convicted of minor offences? Canadians deserve to know.
“If the Supreme Court of Canada decides to hear the case, we will be very proud to defend our historic victory for the rule of law and civil liberties,” said Anaïs Bussières McNicoll, director of the fundamental freedoms program at the Canadian Civil Liberties Association.
“We’ve always agreed that it was time for the blockade to go, but our point was that this could and should have been done using ordinary laws.”
Although the government argues in its filing to the Supreme Court that the convoy consisted of “extremist elements,” it fails to prove an existential threat to Canada.
That’s why the government’s pursuit of an appeal is troubling.
Ottawa wants to reserve the right to compel businesses to assist in curbing civil liberties for political protesters. Yet, it struggles to clamp down on illicit funds that fuel foreign interference, sanctions evasion and terrorism.
“When the extraordinary powers of the Emergencies Act have been unlocked, cabinet can essentially govern by decree,” said Ms. Bussières McNicoll.
“While these powers may be necessary in an acute crisis, it’s important that the government knows that even in times of crisis, it is not above the law.”
Sedition absolutely poses a threat to our democracy. But so does submission.