The Federal Court of Appeal affirms lower court ruling today that the invocation of the Emergency Act by the government was unreasonable.
OTTAWA— The Federal Court of Appeal has ruled that the invocation of a public order emergency under the Emergencies Act during the Freedom Convoy protests was unreasonable, dismissing the government's appeal against the Federal Court judgment of Justice Mosely. The decision of the Appeal Court also upheld the ruling of Justice Mosley that the seizure of bank accounts using Emergency Orders and the broad prohibition on peaceful protest infringed the Canadian Charter of Rights and Freedoms.
Chief Justice de Montigny, writing for the 3 judge appeal panel, stated that: "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."
In the lower court decision at the Federal Court, Justice Mosley concluded that there was no national emergency that seriously endangered the lives, health and safety of Canadians and that there were no reasonable grounds to believe that there was a threat to national security, as defined by the Emergencies Act and the CSIS Act. This was the legal position that The Democracy Fund lawyers argued before Commissioner Rouleau at the Public Order Emergency Inquiry in 2022. The Federal Court of Appeal has now vindicated this position.
TDF litigation director, Mark Joseph, hailed the Appeal Court's decision: "TDF lawyers attended the Freedom Convoy protests as legal observers and represented many clients criminally charged for their peaceful participation at these events. Our legal position then and now is that the invocation by the government of a public order emergency was a misuse of the Emergencies Act and a misreading of the legal authority to do so. We are pleased that the Court of Appeal has confirmed our legal position. More importantly, the Court has rehabilitated the rule of law in Canada and implicitly admonished the government for its abuse of power. Governments at the highest level now know that the exercise of power to curtail freedoms is not unfettered even in times of civil unrest and such power will be subject to review by courts."
About The Democracy Fund:
Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.