The Decibel - Federal Court finds Trudeau’s use of Emergencies Act unjustified

Episode Date: January 26, 2024

Nearly two years on, the federal government’s use of the Emergencies Act against the 2022 convoy protests is still being debated – politically and legally. This week, a Federal Court judge ruled that the Trudeau government’s invocation of the act was unjustified and violated the Charter of Rights and Freedoms.The Globe’s senior political reporter Marieke Walsh explains this latest ruling, how this finding is different from last year’s inquiry findings and what this all means for the Trudeau government.Questions? Comments? Ideas? Email us at [e-mail]

It's been two years since the convoy protests. Trucks blockaded downtown Ottawa as thousands of people protested for weeks against vaccine mandates and the federal government. Protests also shut down border crossings in Windsor, Ontario, and Cootes, Alberta. In response, the government invoked the Emergencies Act, calling the protests a threat to national security. One year ago, an inquiry found that the government was reasonable in its use of the Emergencies Act. But this week, a federal judge ruled in favor of civil liberties organizations, saying the use of the Emergencies Act was unjustified and that it violated the Charter of Rights and Freedoms. Marika Walsh is a senior political reporter for The Globe. She's here to explain what was in this latest ruling, the impact it could have on the Trudeau government, and what it means for how we remember the convoy protests.

I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Marika, it's great to see you. Thanks for being here. Thanks so much for having me on. So it's been almost two years since the government invoked the Emergencies Act because of what happened with the convoy protests in Ottawa, as well as the border blockades. Can you just quickly remind us what happened? I think it's a time that many in Ottawa would rather forget. Two years ago, the capital, the downtown core of Ottawa was completely rammed by trucks, other vehicles that had blockaded large parts of the downtown core in protest. First to the vaccine mandates against COVID-19, but also more broadly, it became sort of an anti-government protest. And, you know, you and I were speaking at the time, and you could hear truck horns going in the background while we were talking on the podcast back then. There was a lot of disruption, a lot of disorder, a lot of concerns around safety for

residents who were trying to live through this, many sleepless nights, and the police really being accused of doing very little to enforce the protest to bring sort of any order back to the city. And those protests in Ottawa then spilled into blockades at border crossing like Coutts in Alberta and Windsor in Ontario. And so it sort of was seen to spiral and to escalate in a way that was unmanageable from the government's perspective. And so as a result of this, in response, the federal government invoked the Emergencies Act. And we have talked about this before, but it has been a while. So can you just remind us, what is this act, the Emergencies Act, and what does it do?

The Emergencies Act is something from the 1980s that the Mulroney government brought in to replace the War Measures Act. And when Justin Trudeau invoked the Act two years ago, it was the first time it had ever been used by a federal government. And that speaks to just how rare, just how unprecedented a situation needs to be for the Act to be used. Because it gives governments sweeping powers to, first of all, circumvent the House of Commons. The powers and the orders that the government brought in were effective immediately and didn't need to be passed through law in the House of Commons. It also gave the police and other agencies a lot of powers. And so the reason why there are so many checks and balances on this act in retrospect is because it circumvents some of our usual democratic processes at the front end.

And it's only supposed to be used in cases of national emergency and security threats that rise to the level of it needing to be used. And so what did the liberals say at the time? Why did they say they needed to invoke it? At the time, they said they needed to invoke it because there was a threat to the security of Canada and a threat to Canada's economic security by the fact that the borders were blocked. We're entering the third week of illegal blockades that have been disrupting the lives of too many Canadians. Here in our capital city, families and small businesses have been enduring illegal obstruction of their neighbourhoods. Occupying streets, harassing people, breaking the law, this is not a peaceful protest.

And there was questions about supply chains. There was questions about how secure and how stable any of the crossings that had been cleared, whether those were actually going to remain clear. And to remind you, it was almost three weeks into protests and chaos in the capital that had really grabbed headlines around the world many times over. And in which when you were in Ottawa, it did not feel like there was any progress being made by the police to get their handle on things. And the police were openly saying it wasn't safe and it wasn't managed, and at the same time really struggled to figure out what to do and to do anything about it. And the Emergencies Act allowed

the freezing of bank accounts. It also compelled tow trucks to actually move vehicles to get them out of that downtown core, right? So those are some of the things we saw as a result of the invocation of this act. Exactly. So what happens is that the government declared a public order emergency under the act. And in making that declaration, it could then issue orders under the act. And those orders included empowering banks to freeze bank accounts of people connected to the protests, and also gave police agencies the power to compel tow truck companies to provide their services. It didn't itself make them do it. So it did give a lot of powers. The government argues that it was constrained and time limited and tried to be implemented as narrowly as possible. But civil liberty groups challenged this in court because

they believed that the situation, despite the chaos and disorder, did not rise to the level of the Emergencies Act threshold. And that just because something is chaotic and disorderly doesn't mean the government gets to use its sweeping powers that it does technically have access to. And we're going to talk about the argument from the civil liberties groups in a sec. But I just want to kind of go through what happened last year, because there was an inquiry into the use of the Emergencies Act last year. This is kind of built into the use of the act. You have to do this inquiry as a result. This was presided over by Justice Rouleau. And so what was the conclusion that Justice Rouleau came to about

the use of the Emergencies Act? So Justice Paul Rouleau, after many weeks of testimony and research and studies and thousands of pages of evidence and documents that his team had to go through, came to the conclusion that the government did act appropriately when it invoked the act and it was reasonable. However, at the time he said the evidence was not overwhelming to justify its invocation. And he kind of gave himself some cover in saying reasonable people could come to a different conclusion than he did. What was so interesting about that is that from the federal government's perspective, that inquiry result really closed the book on this issue about whether the government had overreached in its use with the act or whether it had acted appropriately.

And this court ruling this week really reignites this debate, puts it back in the spotlight, and puts the government back on defense on this really divisive and tense time in which, to be very clear, Justice Paul Rouleau also put the fault for just how bad and ugly everything got on people like Justin Trudeau, on people like Ontario Premier Doug Ford, and on the Ottawa police. And so it's not as if anybody was cast in glory from the inquiry. It was that the justice found that given how bad things had got, given the state the country was in, it was appropriate for the government to invoke the act. And now that's all being

challenged and openly questioned again. So let's talk about this recent ruling then. So I guess the first question I just want to establish here is if we already had a ruling last year with the inquiry, what was this case that we're talking about now that was brought before the federal court? So it wasn't a ruling last year. Last year's result comes as the result of a public inquiry. So that public inquiry is about giving advice and recommendations to government. It's a transparent process for the public to study, understand, and better sort of get a grip on what happened, what information the government was dealing with when it made its decision and what one justice acting as a commissioner of an inquiry views on it.

The public inquiry is a check and balance. It's not a legal process. What we got this week was the first legal finding on the use of the act by a federal court justice. And that will now, because the government has already said it will appeal it, go to the federal court of appeal. And people are already saying this is going to go all the way to the Supreme Court now. Okay. So let's talk about the details of this ruling here. So what exactly did Justice Mosley say about why he came to his conclusion? critical conclusions. First, that the government didn't meet the threshold to invoke the act, that it was not legally justified in using the act, and that the orders that came under that

invocation infringed on charter rights. And so let's break that down. So first on the question of whether the government was justified in invoking the act based on the legal parameters within it, he said that because the protest did not rise to the level of a threat to the security of Canada, as defined by the CSIS Act, the government had to then not use the Act, because the Emergencies Act is very clear in its wording of when that threshold for invoking the Act is met. And what the government said at the inquiry a year ago was that it felt that because it's a different decision maker, it could apply a broader sense of national threat to the security of Canada than CSIS can when it's using that definition.

And so it included things like economic concerns as a threat to national security, which CSIS can't look at. And what Justice Mosley said is, no, this act very clearly says you need to use the same definition and you can't separate it out just because you are a different decision maker. Why that's so important is because that is really sort of the critical question. Did the government meet the threshold? Justice Paul Rouleau said it did, but the evidence wasn't overwhelming. And really importantly, the government never released the legal opinion that explained why they thought they could act differently than CSIS would, because it's protected by solicitor-client privilege and the government did not waive it. And other than Ottawa, police forces were using the tools already at their disposal to clear these protests. Windsor had already been cleared, and the protest in Cootes, Alberta, which is where the firearms cache was found, was cleared on the day the act was invoked using ordinary policing powers.

Here's part of what Justice Mosley said in his ruling, quote, while I agree that the evidence supports the conclusion that the situation was critical and required an urgent resolution by government, the evidence, in my view, does not support the conclusion that it could not have been effectively dealt with under other laws of Canada. Okay. I wonder, because we had kind of the opposite result come out in the inquiry last year, did this come kind of as a surprise to people? It certainly came as a surprise to the government. And it certainly brings more scrutiny to what the Prime Minister did two years ago. His invocation of the Emergencies Act is arguably one of his most monumental decisions in government. And

his testimony at the Emergencies Act inquiry was also a time when people viewed his performance as prime minister quite favorably, that they thought he had made a strong case for himself and conducted himself well. And so the government, I think, thought that the book was a bit closed on this with that result from Justice Paul Rouleau. And this is a reminder that there is not consensus on this issue, that a lot of people were very angry by the invocation of the Emergencies Act, by the message that it sent, that they said it showed the government using its powers against a protest against them. And so when you look at it from that perspective, if the courts are now saying the government overreached, there's the possibility of a political backlash and more political

consequences for the prime minister. We'll be back after this message. So Marika, you also mentioned the idea of charter rights being infringed. Where does that come into play? That comes into play, according to Richard Mosley, in two places. So the justice found that the orders under the act that the government invoked infringed on charter rights in two places. First, on freedom of expression, because he said the orders ruling the protests unlawful were overbroad in the sense that people who had parked a truck on Wellington Street were being lumped in with people who were peacefully protesting just with placards on Parliament Hill, which as a reporter in Ottawa, we see all the time.

Secondly, he said that it also infringed on the protection against unreasonable search. So essentially, people lost their right to due process in how the bank accounts were allowed to be frozen. And there were knock-on effects on, for example, spouses or children of the people at the protest whose bank accounts were frozen, who were negatively impacted by that. Okay. So if it's ultimately found that, you know, the government was unjustified in using this act, what are the ramifications? So the courts act as a check on what governments do on laws passed by the House of Commons, and that's just a natural part of our democracy. It's important to remember that they have found previous bills like the

Impact Assessment Act from the Trudeau government and mandatory minimums from the Harper government unconstitutional. The reason why I think this has a bit more focus and could take a bit more attention than other ones is because this centered on the right to protest and the centered on freedom of expression. And so politically, this ruling is more sensitive for the government. But it's important to remember that this is the job of courts to act as a check on the governments. And in coming forward with this ruling, it will inform future governments on when and how they can use the Emergencies Act. And in this case, Justice Richard Mosley's ruling puts a narrower frame on when it can be used than how the Trudeau government viewed its ability to invoke the act. And OK, so Marika, now that this ruling has come out, how did the plaintiffs respond?

So the civil liberties groups who brought this forward, how did they respond to it? They came out with statements really celebrating their victory. The Canadian Civil Liberties Association said it was a clear and critical precedent for every future government and said that emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy. And the second group that challenged this, the Canadian Constitution Foundation, said they welcomed the appeal from the government and they described the act's invocation as one of the worst examples of government overreach during the pandemic.

And so you already mentioned that the government is appealing this decision, but what did they say in response to this ruling? They really quickly and strongly defended their decision at the time. They described it as a decision that was a last resort move from a government that really didn't know what other options they could have to bring the situation under control. And they really stressed or tried to remind people just how fraught that time was, just how uncertain it was. The prime minister at the time of his inquiry testimony said that from that day, it seemed that things were still escalating and spiraling further out of control, not coming under control. And things like the weapons seizure at the blockade in Coutts,

Alberta, was one of their key concerns around the potential for violence and for more unrest. And so they really defended their decision and also relied heavily on Justice Paul Rouleau's finding that they did act reasonably in their response to this case, saying they will appeal it, although we don't yet have the reasons that they'll point to in that appeal. And then what about the opposition, Marika, like the conservatives and the NDP? What have they said about all of this? So what's interesting is that the NDP supported the liberals in the House of Commons in the motion that the House needed to pass to approve the use of the Emergencies

Act. If you remember, this was still a minority government back then. And so Trudeau couldn't make this decision on his own. And the New Democrats at the time said they reluctantly supported him in that decision, but also heavily criticized his leadership and the leadership of other levels of governments that brought Canada to that situation where the Emergencies Act was needed. And Jagmeet Singh sort of repeated those points and criticisms earlier this week. I will note, interestingly, though, that the NDP did actually strike their deal to prop up the government to the end of their mandate just a month or two after the convoy happened. On the flip side, Conservative leader Pierre Palliev, who at the

time of the protest supported the convoy protest, described the ruling from the judge as evidence that the government broke the highest law in the land by invoking the Emergencies Act. And he said if he forms government, he will ensure the act can never be used again to silence political opposition. Just looking back on the whole situation, Marika, like the protests themselves, the government response to them, the decision last year, the ruling this year, like what does this tell us about the state of democracy in this country? I think that those protests in Ottawa and also at those border crossings really did push our political leaders, our governments at varying levels from city to province to federal to the brink. The political leaders really struggled to know how to respond to and how to bring these protests under control. We saw that in particular in Ottawa under the Ontario government and Prime Minister Justin Trudeau's response to something in his own capital about his own policies. seeing now is that the machinery of our democracy is grinding away, holding governments to account.

First, with the inquiry last year that even though it gave the government ultimately a pass on invoking the act was highly critical of the government at the same time. And now in this court ruling that is raising more questions about whether, well, it's saying the act was not justified legally in this case, but it shows that as slow as the court process can be, courts do still act as a check on our governments. And that is one of the amazing things about being in a democracy, that you do have that transparent decision from an independent judge who can tell our government no once in a while. And just lastly, I mean, this new ruling, from the sense you're getting in your reporting, is this going to affect the way that people think about and I guess remember really the

convoy protests of a couple of years ago? I think it's a bit early to say. I think views on this issue are so polarized and so entrenched already. And so I think it a little bit depends on what future court rulings say and how much the opposition even wants to talk about this. This decision put some wind in the Conservative Party's sails, but the Conservative Party also did not drape itself in glory during the protests. And so I'd be surprised to see them really hammering this as the key point of focus next week, rather than focusing on the affordability issues they've been talking about to date. Next week when parliament resumes, yeah.

Exactly. But at the time of the protests, as much as the majority opinion was against the convoy protests, there was a substantial group of Canadians who supported these protests or who were sympathetic to the reasons why they started in the first place. And when you look at polling sort of in the wake of those protests from the Angus Reid Institute, about half of Canadians who were polled said they supported the use of the Emergencies Act, but others said it either wasn't needed or no response at all was needed. And so this is still a polarized and divisive issue. And I think it's a time that, frankly, most Canadians would rather forget. Marika, thank you so much for being here today and walking us through all of this.

Thank you so much for being here today and walking us through all of this. Thank you so much. That's it for today. I'm Mainika Raman-Wilms. Michal Stein helped produce this episode. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrienne Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you next week.