A Dubious Judgment on the Emergencies Act

Where to even start with this one...

In a ruling sure to be appealed, a Federal Court judge has deemed the federal government’s invocation of the Emergencies Act (EA) during the so-called “Freedom Convoy” protests unlawful and found that the measures employed under it violated the Charter of Rights and Freedoms.

Because the judgment primarily concerned the decision to invoke the EA (rather than the constitutionality of any provisions of the EA itself), the Court’s job was to assess the reasonableness of the decision “with deference owed to the decision maker and its specialized expertise” (para. 202). The judge, however, ends up not so much reviewing the reasonableness of the decision in light of the circumstances facing the government so much as undertaking a total reappraisal, with the judge substituting his judgment for that of the government’s, with little to no deference to be found.

A read of the 126-page judgment reveals a lot of dubious logic. There is also cherry-picking - or, more accurately, evidence entirely ignored - regarding the risks of violence and harms associated with the protests. And this is before we even get to the Charter of Rights analysis, which treats section 1 as less a substantive provision providing for reasonable limits on rights and more a suggestive guideline.

A reasonableness assessment that requires deference is not meant to give the decision-maker free rein to interpret the statutory framework or its underlying purposes however they wish. But it does mean that courts should consider the full context informing a decision based on requirements outlined in law. And Justice Mosley recognizes at para. 204 that “it is not the role of the Court to reweigh the evidence or the relative importance given by the decision-maker to any relevant factor.” It’s unfortunate that, in my respectful opinion, it appears that this is precisely what he does.

[Note: I take little issue with any of the judge’s findings on mootness, standing, or justiciability, as these were all in keeping with well-established precedent. Nor will I discuss other elements of the decision, such as the parties’ various arguments over the government’s privilege claims, etc.]

The first major issue the Court had to address was whether there was, in fact, a national emergency. The EA sets out a national emergency as “an urgent and critical situation of a temporary nature that a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it … and that cannot be effectively dealt with under any other law of Canada.”

The Public Order Emergency Commission has already ably demonstrated that there was more than enough evidence before Cabinet that the prolonged occupation of downtown Ottawa, coupled with border blockades, posed a serious danger to public safety in this vein. As I wrote while the Commission continued its work, “the threat of serious violence was real, both in terms of what was uncovered about the various sites of activity during the convoy and the stated aims of those involved, including its leadership. That some people were merely engaged in peaceful protest does not erase the insurrectionist aims of convoy organizers, the presence of weapons with alleged plans to use against the police, the ongoing and severe threat to public safety in downtown Ottawa, and the advice the government was receiving that attempts to clear the occupation would result in serious violence.” I want to emphasize here that Judge Mosley’s decision outright ignores some of these harms, including cancer patients unable to get to their appointments.

As for other laws or the capacity of provinces to deal with the situation, Judge Mosley evinces a remarkably blinkered view on the question of capacity. He leans heavily on the fact that the Coutts situation was resolved prior to the implementation of EA orders to conclude that the problem areas in the rest of the country could have resolved similarly. So while the discoveries of caches of weapons was “deeply troubling” (para. 242), and there were multiple threats online to resist police, these were being “dealt with” (para. 243) (he doesn’t say how).

On the national dimensions of the emergency, Judge Mosley obliquely critiques as “vague” (at para. 248) the description that convoy protests occurred at “various locations throughout Canada”, as if that were not an irrefutably accurate statement.

Continuing to rely on a deeply narrow conception of ‘capacity’, Mosley suggests capacity issues only existed in Ontario to the extent authorities could not compel tow truck drivers to assist in the removal of blockading vehicles (para. 250). There is no consideration of the scale of the occupation, the total failure of political leadership at the municipal levels, the magic act of the disappearing Ontario Premier, or the simple empirical fact that the siege of Ottawa continued with no end in sight despite the ongoing and mounting evidence of harms and threats to public safety.

It’s a logic that amounts to “in theory everything should be taken care of, therefore it’s clear the emergency did not exceed the capacity or authority of a province to deal with it” rather than an assessment of what actually happened, which demonstrated that nothing was being dealt with. To this, critics of the EA invocation will argue the distinction between capacity and willingness, or capacity and competence, to which a sensible person will point out that the EA does not require that federal government to spend time on the metaphysical questions posed by multi-versal ponderings of the imagined parallel universe where Doug Ford took governance and public safety seriously, before they decided to address the national emergency at hand with the last resort tool they had available - a tool, mind you, that worked to finally end the occupation. As I wrote at the time: “The POEC demonstrated what was already clear to those of us who followed the convoy protests themselves: the police were either unable or unwilling to act. It doesn’t matter, frankly, what existing laws might or should have been able to deal with: they did not, and therefore could not handle the occupation of the country’s capital.”

By contrast, Judge Mosley concludes instead that “There appears to be have been no obstacle to assembling the large number of police officers from a variety of other forces ultimately required to assist the OPS to remove the blockade participants (para. 250).” I suppose we’re expected to believe it was mere coincidence that blockade participants did not end their siege until the EA was invoked, and the few tools enacted under it were implemented.

It’s worth reminding readers that none of the EA’s requirements are assessed with respect to legal ‘certainty’. The EA merely requires that the government have reasonable grounds to believe a public order emergency exists. Instead of a holistic appraisal of the full context, intermixed with an appropriate amount of deference to the complete circumstances facing the government, Judge Mosley gives us a cherry-picked account that abandons the reasonable belief requirement at the heart of the inquiry.

In fact, he literally dismisses as “debatable” (para. 252) the government’s conclusion that, as there had been “a significant increase in the number and duration of incidents involving threats of violence assessed to be politically or ideologically motivated” that the OPS has been unable to enforce the rule of law due to the overwhelming volume of protesters. Instead, he substitutes his own conclusion, including a “failure of leadership and determination” (para. 252). But even if Judge Mosley’s conclusion as to the explanation for the total police failure is the better one, it neither makes the government’s judgment unreasonable nor does it actually demonstrate police capacity: police forces with no leadership or determination don’t have any capacity!

The decision then turns to the question of whether there was a threat to the security of Canada. All this requires, even under the bizarre legislative choice to refer to the definition in another statute (the CSIS Act), is “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective…” Reasonable people can disagree over whether this applies to the convoy protests, and that is precisely my point. The government had overwhelming evidence of the potential for serious violence, and plenty of discrete examples of actual harm, all in the context of a prolonged occupation that threatened (and in some cases was actively harming) the lives and safety of people in Ottawa.

In fact, Judge Mosley spells out the government’s valid concerns (para. 277). He even agrees with the government’s explanation for why “serious” was added to “serious violence” in the CSIS Act, which was precisely to discount minor acts of political violence like throwing tomatoes at politicians (para. 278). And yet despite this, he undertakes a narrow vision of violence by characterizing it with reference to Criminal Code provisions on “bodily harm”, and emphasizes, again, the economic disruptions of the convoy without serious consideration at all of the many examples of threats of violence and actual physical and psychological harms endured by people and as evinced in the public inquiry.

To be blunt, it’s a section of the judgment that comes very close to gaslighting the people of Ottawa.

If the decision that the EA was improperly invoked were not bad enough, the discussion of actions enacted under it as applied to the Charter might be even worse.

I should state at the outset that I have no objection to the conclusion that rights were implicated and infringed by the regulations and orders enacted under the EA. Any time a government or police forces put an end to a protest in which at least some participants are behaving peacefully, sections 2(b) (free expression) & 2(c) (peaceful assembly) are engaged. But c’mon, the literal occupation of downtown Ottawa is exactly the sort of thing we have “reasonable limits” for!

Bizarrely, Judge Mosley actually finds that there was no infringement of peaceful assembly but that there was of free expression, and that this infringement of 2(b) was not justified. This seems to be on the basis of, essentially, overbreadth: not all participants were violating the law, and so those who weren’t had their rights unreasonably infringed. This only holds if the entire protest itself, which includes all of its characteristics - its prolonged nature, its serious disruption to the lives of Ottawa residents and the harms it was imposing on them - did not render the occupation unlawful in a collective sense. (Indeed, the decoupling of peaceful assembly - a collective right - from free expression in this sense is what is bizarre to me). It is positively illogical to not recognize that occupations or blockades in toto were something the government had a valid objective of shutting down. Your right to free expression does not include a right to participate in an unlawful blockade or occupation, even if you’re there peacefully. Indeed, while free expression and peaceful assembly necessarily include the right to some degree of disruption and presence in public spaces, few reasonable commentators would argue the right is limitless in the temporal sense: endlessly occupying public spaces meant to be enjoyed by everyone, even in the context of a truly peaceful protest, is subject to reasonable limits. If this emergency circumstance is not a reasonable limitation on free expression, then section 1 of the Charter would be effectively dead letter.

[Note: I have less to say on s.8 of the Charter and the freezing of bank accounts, as I do not believe I have a complete understanding of how choices were made regarding which accounts to freeze, etc.]

I want to conclude on a final point, and that is that Justice Rouleau’s findings in the Public Order Emergency Commission reflect a much more comprehensive and holistic appraisal, and - more importantly - a much more reasonable assessment of the legitimacy of the government’s decision. It is true that the strict comparison between Rouleau’s analysis and Mosley’s is somewhat unfair. A public inquiry and litigation in a court of law are two different things, with different objectives.

Nonetheless, the deep flaws in today’s judgment are concerning. The judgment is formalistic, its contextual depiction of events partial and selective, and it lacks the degree of deference called for in reasonableness review. I hope it is overturned on appeal.