Court: Crackdown on Freedom Convoy Violated Canadians' Rights

The Canadian government's use of emergency powers against the Freedom Convoy protest of restrictive COVID-19 policies was unreasonable and led to the infringement of individual rights, a federal judge ruled this week. The case was brought by two protesters whose bank accounts were frozen, with support from civil liberties groups. While the plaintiffs will receive some compensation for legal costs, the main result of the decision, which the government plans to appeal, is to limit the power of the state to treat political opposition as an "emergency." It also further hobbles the prospects of Prime Minister Justin Trudeau, who is wildly unpopular among Canadians.
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"I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration," wrote Justice Richard Mosley.

Mosley found that, while the protest "reflected an unacceptable breakdown of public order," it didn't satisfy legal requirements for declaring a national emergency in terms of dangers to national security and threats of violence.

"Parliament's intent in enacting the legislation was to ensure the Act would be a measure of last resort and, in particular, only where the provisions of existing Federal law could not handle the situation," Mosley observed. "I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires," a Latin phrase meaning "outside the law."

As a result, he added, "the decision to issue the Proclamation was unreasonable and led to infringement of Charter rights."
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The Federal Court of Canada has just issued its decision allowing the Canadian Civil Liberties Association (CCLA)’s challenge to the federal government’s invocation of the Emergencies Act. The CCLA’s challenge was joined with that of a few other parties.

Noa Mendelsohn Aviv, Executive Director and General Counsel of the CCLA, made the following statement:

The Court concluded that:

• The federal government’s decision to declare a public order emergency under the Emergencies Act in early 2022, as well as the associated regulations that it enacted, were unreasonable and were not justified on the facts or the law.
• The regulations violated the Charter right to freedom of expression and the right to be secure against unreasonable search or seizure.

From the moment the Emergencies Act was invoked, the CCLA raised our concerns.

Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy. They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws. The threshold for invoking the Emergencies Act is extremely high. The government must demonstrate that there is an emergency arising from threats to the security of Canada and that that emergency truly has a national scope. The Federal Court agreed that this threshold was not met.

The CCLA stood up to the government’s use of the Emergencies Act and challenged the government in court. The Federal Court’s decision sets a clear and critical precedent for every future government.

We are deeply grateful to our excellent legal team of Ewa Krajewska and Brandon Chung at Henein Hutchison Robitaille LLP for their superb legal work and dedication to this challenge.

We will have more to say in the coming days as we fully digest the contents of the decision.

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(1) Remedies

[374] The Applicants all sought declaratory relief if any of the legislative instruments were found to be unreasonable or unconstitutional. ...

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Declaratory relief occurs when two parties go to court to get clarification. In other words, the plaintiff isn't suing the defendant or trying to recover any money or damages. The two people involved in the case simply want the court's opinion.
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