Police move in to clear protesters from downtown Ottawa near Parliament Hill on Feb. 19, 2022, after weeks of “Freedom Convoy” demonstrations. The Federal Court ruled the Liberal government’s invocation of the Emergencies Act in response to the protests was unreasonable and led to the infringement of constitutional rights.Cole Burston/The Canadian Press
Submerged in the flood of news in the past week was this headline: a senior court delivered a stinging rebuke to the federal Liberals, confirming that Ottawa trampled the Charter rights of Canadians four years ago.
The ruling from the Federal Court of Appeal makes for compelling reading, and dismantles the edifice that the Trudeau Liberals constructed to justify their invocation of the Emergencies Act to clear Freedom Convoy anti-vaccine mandate protesters from downtown Ottawa in February, 2022.
The Liberal justification, spelled out in a Feb. 15 proclamation, went something like this: the protesters blockading some border crossings and occupying a stretch of downtown constituted a national public order emergency under the Emergencies Act. The protests and blockades were “being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada.” In short, there was a threat of terrorism in the air.
As a result, the government was justified in curtailing civil liberties, including by banning protests likely to lead to breaches of the peace, and freezing the bank accounts and assets of “designated persons.” (It was that latter measure that breached the right to be secure against unreasonable search or seizure.)
Trudeau’s use of Emergencies Act to clear convoy protests unjustified, appeal court rules
The Public Order Emergency Commission, required under the act, found in February, 2023, that there was a national emergency, and that the government’s actions were justified. Those findings were not legally binding.
The Federal Court ruled to the contrary in January, 2024. The court said the protests and blockades did not constitute a national emergency, rejecting the government’s (to be generous) expansive reading of the Emergencies Act to include the threat of economic harm. As a result, the Liberal government violated the protesters’ Charter protections of freedom of expression, and against unreasonable search and seizure.
The government appealed that decision. The ruling in that appeal, released Jan. 16, is if anything a more emphatic rejection of the government’s arguments.
The Liberals, and particularly then prime minister Justin Trudeau, sought to portray the Freedom Convoy protesters as dangerous and violent. The appeals court rejected that portrayal. “While undoubtedly disruptive and very annoying to residents of downtown Ottawa, this was non-violent expressive activity that manifestly attempted to convey protesters’ dissatisfaction with the federal government’s Covid policies,” the court wrote.
That is a sentence that the government, and others that have aimed to tar the Ottawa protesters as dangerous fanatics, should long ponder. It’s true that by the time of the Emergencies Act invocation, it was time to end the occupation of downtown Ottawa. But as the court made clear, that effort did not have to abuse the Charter to do so.
The Liberals also tried to confect a more expansive definition of what constituted a threat to Canada’s security than actually used in the Emergencies Act. The act itself is quite specific, pointing to the definitions contained in the Canadian Security Intelligence Service Act. Ottawa argued that the possibility of economic damage from blockades posed a threat to national security. The appeal court dismantled that argument, saying it would stretch words beyond rationality to accept the government’s contention.
The overall picture is one of a government that was not much bothered with either the letter of the law, or the spirit of the Charter. (Recall Mr. Trudeau intoning about “unacceptable” views, as if it were up to the government to adjudicate such things.)
Four years after the fact, what should be done? An appeal to the Supreme Court will help, not because the government might win, but because it should lose. Canadians should hear the country’s top court speak to this critical matter. A review of the Emergencies Act is needed, with particular attention to the seven-day window before Parliament reviews cabinet’s actions. That window could be tightened.
An apology from the federal Liberals for their abuse of Charter rights may be too much to expect. Failing that, perhaps the Liberals can simply remain silent the next time they are tempted to chant their mantra about how their party will “always” stand up for the Charter.