Federal Court finds Federal Government’s Use of Emergencies Act to deal with the Freedom Convoy Protest Violated the Charter of Rights and Freedoms by Aidan Schiffmann

In Canadian Frontline Nurses et al. v. Canada (Attorney General), 2024 FC 42, the Federal Court held that the Government of Canada’s decision to deploy powers under the Emergencies Act to curtail convoy protests in 2022 was unreasonable and breached Canadians’ Charter rights.

Background

In early 2022, there were a number of significant protests across Canada related to governmentally imposed COVID-19 regulations and vaccination mandates particularly as it related to vaccine requirements for commercial truckers who were crossing the border between Canada and the United States (Torys, 2024). One of the largest and most disruptive public protests occurred in Ottawa and became known as the Freedom Convoy 2022 (Torys, 2024). Beginning on January 22, 2022 hundreds of vehicles formed convoys from several points throughout Ontario and converged in Ottawa for a rally on Parliament Hill on January 29, 2022. The protestors remained in downtown Ottawa following the January 29, 2022 rally and vowed not to leave until all COVID-19 restrictions and mandates were repealed. The protesters on foot and in their vehicles occupied large parts of downtown Ottawa over a period of several weeks (Torys, 2024). This led to what has been called “intolerable conditions” for residents as well as people working in downtown Ottawa (Torys, 2024). There were several acts of community harassment and one protestor was captured on video drinking and dancing on the Tomb of the Unknown Soldier at the National War Memorial (Torys, 2024).

On February 14, 2022, Prime Minister Justin Trudeau evoked the Emergencies Act, granting police extraordinary powers to “end border blockades and the occupation of downtown Ottawa. The Emergencies Act gave law enforcement powers to remove and arrest protesters as well as the ability to commandeer tow trucks to remove vehicles belonging to protesters (CBC News, 2024). The Federal government also enacted further emergency Regulations and an Economic Measures Order which allowed the monitoring of funds sent through crowdfunding for the protest in addition to the freezing the bank accounts Canadians suspected of providing support for the protest (CBC News, 2024).

Four groups of claimants (two groups of citizens who participated in the Freedom Convoy, the Canadian Civil Liberties Association and the Canadian Constitution Foundation) brought applications for judicial review legitimacy of the federal government’s decision to evoke the Emergencies Act in February 2022 (Izri, 2024). They argued that the Federal government’s actions were unreasonable and in violation of sections 2(b)(c)(d), 7 or 8 of the Charter of Rights and Freedoms (Izri, 2024). The Attorney General sought to strike the application.

The matter was heard before Justice Richard G. Mosley of the Federal Court. In his decision Justice Mosley found that while the protests against the federal government's handling of the COVID-19 pandemic "reflected an unacceptable breakdown of public order," and the invocation of the Emergencies Act "does not bear the hallmarks of reasonableness —justification, transparency and intelligibility" (CBC News, 2024). Justice Mosley went on to state that there was “no national emergency justifying the invocation of the Emergencies Act” (CBC News,2024). With respect to the extraordinary economic measures Justice Mosley concluded the economic orders violated protesters' Charter rights "by permitting unreasonable search and seizure of the financial information of designated persons and the freezing of their bank and credit card accounts" (CBC News, 2024). 

Key Takeaways From the Federal Court’s Decision

● The Emergencies Act imposes a high threshold for “national emergencies” Even though the Federal Court found that the convoy protests and blockades threatened Canada’s security, it found that the events of February 2022 did not technically rise to the level of a national emergency (Torys, 2024). Under the Emergencies Act, a national emergency arises only in narrow circumstances such as an urgent, critical and temporary situation that “seriously endangers” the lives, health and safety of Canadians, and it must be so significant as to exceed the capacity or authority of the provinces to address it (Torys, 2024).

● Emergency measures infringed the Charter of Rights and Freedoms The Federal Court held that some of the emergency measures the government had adopted infringed the Charter. By criminalizing the protests themselves, the emergency measures infringed freedom of expression since they prohibited even peaceful protestors from joining the protests. The very broad powers granted to Canadian banks to freeze assets and provide private information to the government infringed the right to be free from unreasonable search and seizure and were not sufficiently tailored to be saved by section 1 of the Charter (which provides that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society) (Izri, 2024).

REFERENCES

“Federal Court Finds Emergencies Act Orders Exceed Government’s Powers: Insights: Torys LLP.” Torys, 16 Feb. 2024 www.torys.com/our-latest- thinking/publications/2024/01/federal-court-finds-emergencies-act-orders- exceed- governments-powers.

Izri, Touria, et al. “Federal Court Finds Emergencies Act for ‘freedom Convoy’ Violated Charter.” Global News, 16 Feb. 2024, globalnews.ca/news/10244673/emergencies-act- convoy-federal-court/. Accessed 06 Mar. 2024.

“Ottawa Appeals Court Decision Calling Use of Emergencies Act on Convoy Protests Unreasonable | CBC News.” CBCnews, CBC/Radio Canada, 24 Feb. 2024, www.cbc.ca/news/politics/ottawa-appeals-emergencies-act-court- decision1.7124513#:~:text=A%20federal%20judge%20has%20ruled,says%20it%20plans%20to %20ap. Accessed 06 Mar. 2024.