Federal Court rules invocation of Emergencies Act was illegal

Federal Court decision helps rehabilitate the rule of law in Canada.

TORONTO: A Federal Court Judge has declared that the Liberal government’s invocation of the Emergencies Act against the Freedom Convoy protestors was both unreasonable and unconstitutional.

In his decision of almost 200 pages, Justice Mosley of the Federal Court of Canada concludes 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 (TDF) lawyers argued before Commissioner Rouleau at the Public Order Emergency Inquiry in 2022.

Significantly, Justice Mosley found that the Emergency Measures Regulations and the Emergency Economic Measures Order, made by the Federal Government under the emergency legislation, infringed the Canadian Charter of Rights and Freedoms.

The emergency regulation prohibiting anyone from participating in a public assembly that might reasonably be expected to lead to a breach of the peace was found to infringe on political expression. That limitation was not found to be a reasonable limit on free expression as it treated all protestors alike and was needlessly applied across the entire country.

With respect to the economic order that empowered financial institutions to freeze the bank accounts of people engaging in prohibited activity under the emergency regulations, the Court found that it infringed the right to be free from unreasonable search and seizure. This limitation was not upheld because, among other things, there was no objective legal standard that authorities could use when applying it and no ability to challenge it. As the RCMP Superintendent who oversaw the implementation of the order testified, its application did not rest on a standard or reasonable grounds or reasonable suspicion but merely a standard of “bare belief.”

According to TDF’s litigation director, Alan Honner, the Federal Court decision carries more weight than Commissioner Rouleau’s findings at the public inquiry because it addresses the legality of the proclamation on constitutional and administrative law grounds. While Commissioner Rouleau did make findings about the justification for invoking the public order emergency, he did not have the legal authority to adjudicate on the lawfulness of the declaration. Where the commission often involved hearsay and non-expert opinion evidence, the federal Court adhered to strict rules of evidence and legal procedure. Thus, the judgment of the Court has more legal weight.

“The decision reaffirms our view that the Emergencies Act as a tool of last resort that cannot be invoked for convenience of expedience,” says Honner. “While it was disheartening to see the federal government illegally use emergency powers against peaceful protestors, this decision helps to rehabilitate our country as one that respects and is governed by the rule of law.” 

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.