By Sumayya
OTTAWA — The federal government says the courts took part in “second-guessing with the benefit of 20/20 hindsight” when they ruled that the government did not have a legal reason to use the Emergencies Act four years ago to stop protests.
Lawyers for the government made this argument in a document sent to the Supreme Court of Canada. They are asking for a hearing to present the federal case for using the emergency law to handle protest actions in the national capital and at major border points. The top court is scheduled to rule Thursday on whether to give the government permission (leave) to appeal.
For about three weeks in January and February 2022, downtown Ottawa was filled with protesters. This included many people in large trucks that blocked the streets around Parliament Hill. While many protesters were demonstrating against COVID-19 health rules, the “Freedom Convoy” protests also brought in people who had various complaints against then-prime minister Justin Trudeau and his government. Trucks also blocked main border crossings to the United States, including trade routes at Windsor, Ontario, and Coutts, Alberta.
On Feb. 14, 2022, the government invoked the Emergencies Act. This law allowed for temporary rules, including the control and banning of public gatherings, choosing secure locations, telling banks to freeze financial assets, and a ban on providing support to people taking part in the protests. It was the very first time this law had been used since it replaced the old War Measures Act in 1988.
In a Feb. 15 letter sent to provincial premiers, Trudeau said the federal government believed it had reached a moment “where there is a national emergency arising from threats to Canada’s security.’’
The Public Order Emergency Commission did a mandatory review after the act was used. In early 2023, they concluded that the federal government had met the very high legal standard required to use the law.
The Trudeau government’s decision was also closely looked at in Federal Court. The Canadian Civil Liberties Association (CCLA), along with several other groups and individuals, argued that Ottawa did not have the proper legal grounds to use the emergency measures. The government argued that the steps taken to handle the chaos were targeted, fair (proportional), limited in time, and followed the Charter of Rights and Freedoms.
Richard Mosley, the Federal Court judge who heard the case, concluded that the choice to use the Emergencies Act did not show the signs of reasonableness—which are justification, transparency, and intelligibility. He said it was not supported by the actual facts and legal limits. Ultimately, there “was no national emergency justifying the invocation of the Emergencies Act,” Mosley stated in his January 2024 ruling.
In January of this year, a three-judge panel of the Federal Court of Appeal agreed with that ruling completely and unanimously. The Court of Appeal stated that even though the blockades and the “Freedom Convoy” protests in Ottawa were disturbing and disruptive, “they fell well short of a threat to national security.”
In its written request to the Supreme Court, the government states that the Federal Court and the Court of Appeal “applied the wrong principles on judicial review.” The submission says the courts should have asked whether—based only on the information that was available at that exact time—federal officials acted reasonably in deciding that a public order emergency existed.
“Instead, they asked, with the benefit of hindsight, whether there were reasonable grounds to believe that a public order emergency existed.”
The government says that, in the end, both courts just applied their own personal view of what was reasonable.
“This non-deferential approach hamstrings governments’ ability to respond effectively to future crises, neuters the Act” and goes against the Supreme Court’s past rulings on administrative law over the years, the government’s document states. “It amounts to second-guessing with the benefit of 20/20 hindsight,” the government adds.
“In the end, no one disputes that emergency measures should be a temporary means of last resort. But that does not mean those measures should be available only in the most dire and extreme circumstances.”
In its own response to the Supreme Court, the Canadian Civil Liberties Association says the government should be denied permission to appeal because it is just trying to argue “the same issues and arguments the Court of Appeal dismissed.”
