January 23, 2024
I was standing among the crowd at Wellington and Metcalfe Streets in Ottawa on that beautiful yet cold February 13, 2022, listening to the colourful rhetoric of former Newfoundland Premier of Newfoundland the Hon. Brian Peckford as he proclaimed:
We must influence individually and collectively the government and the judiciary of this country to reestablish the Charter of Rights and Freedoms that we intended it to be in Nineteen Hundred and Eighty-Two. Don’t forget the constitution is not a federal law, the constitution is not a provincial law, the constitution is not a little puny municipal by-law, the constitution is the supreme law of Canada!”
As we stood in the cold, we had no idea that in the bowels of those government buildings decisions were made to proclaim the invocation of the Emergencies Act the very next day—Valentine’s Day—February 14, 2022—a day of infamy in Canadian history.
Nearly two years later Justice Mosley decided today that Mr. Trudeau’s invocation of the Emergencies Act was ultra vires; in other words, the federal government had no authority to invoke the act and that it violated the Charter of Rights and Freedoms.
This decision is a legal earthquake.
Justice Mosley voiced an opinion that many of us in the legal profession knew was the case. A simple and clear reading of the Emergencies Act establishes the fact that the government was way off side and violated the rights and freedoms of Canadians.
Here are just a few of the highlights of the decision.
Across the country courts have denied redress against the government lockdowns, mandates and travel bans because they said the cases were “moot”. The mandates etc are over with so there is “no case” to be heard because there is no “live issue” between the parties. If the court made an order in such a case it will have no meaning.
Courts do not want to waste time on cases that do not matter.
Justice Mosley bucked the mootness trend. His decision is the first, and hopefully not the last, to take the constitutional arguments of the protesters seriously against the governments’ actions. Mosley’s respect shown to the aggrieved is reason to have faith that there yet remains reason to be optimistic about justice. As Peckford noted, we are dealing with the “supreme law of Canada!”
Mosley noted that a court can still hear a moot case if there is an ongoing adversarial context such that it is worthwhile for the court to spend time deciding the matter and especially if there is a role for a court to be engaged with the legislative branch of government.
Mosley observed that there still is friction between the parties and it is not simply an “academic” matter but a real concern as the protesters were directly affected by the invocation of the Act.
The government argued that the use of the Emergencies Act was more of a one-off occurrence not likely to be used again because of the special circumstances. Therefore, the court should not waste its resources hearing the case.
“I disagree,” Mosley curtly replied. “The risk of other episodes of public disorder of the nature which occurred in February 2022 can not be discounted.” He is aware that given the contentious issues facing society opposition to government policies can be whipped up “through the extraordinary reach of social media” to support further protests.
A court reviewing the invocation of the Act is different from the Public Inquiry, the Special Joint Committee of the House of Commons and the Senate, as they are political bodies. The court on the other hand is concerned not with politics but the law. Courts ask whether the government had the authority under the Act to invoke it; and determines whether the government violated the constitution.
Such bright rays of legal wisdom contrasts with the dark deficit we have seen in recent decisions that let the government off the hook.
Government Lack of Information
Further Mosley notes that it is difficult for those who suffered from government illegal actions to get relief from the courts when the government controls all the information surrounding their decision-making process and will not allow citizens access to that information.
Strategically minded governments could well design their implementation of the emergency powers for specific purposes such that by the time anyone has a chance to go to court, the alleged “emergency” is over. Thus, “If the Court declines to hear these cases, a precedent may be established that so long as the government can revoke the declaration of an emergency before a judicial review application can be heard, the courts will have no role in reviewing the legality of such a decision.”
That would be the effect if the Court agreed with the government’s arguments.
Our “free and democratic society” cannot long endure if the prime minister has unfettered power under the Emergencies Act that allows him to interfere with provincial jurisdiction, create offences without Parliamentary review or public debate. This kind of power, said Mosley, comes with a ‘social cost’ and the government needs to be held accountable by the courts which was contemplated in the Act.
The Act contains legal thresholds that must be met before it can be invoked. Mosley said that while the government had the discretion to invoke the Act, it could not willy-nilly say it reached the “objective legal thresholds” when it did not in fact. He was of the view the government did not reach the thresholds. It was not a national emergency and there were no serious threats to the security of Canada.
The government’s statement that the emergency “exists throughout Canada,” was in Mosley’s view “an overstatement of the situation known to the Government at that time.” Even if the concern was that new blockades could emerge, he rightly noted that they were handled by local and provincial authorities. Even the prime minister’s letter to the premiers trying to justify his invocation did not “directly address” the EA requirement “that the situation [was] of such proportions or nature to exceed the capacity or authority of a province to deal with it.”
The broad powers given to the executive by the Act “is a tool of last resort” and Mosley points out that it cannot be invoked “because it is convenient or because it may work better than other tools at their disposal or available to the provinces.” He noted that it was “clear that the majority of the provinces were able to deal with the situation.”
“[T]here was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires.”
Threats to the Security of Canada
The government’s reasoning fell short to show that there were serious threats to the security of Canada. “Substantial harm in the context of violence” in Mosley’s view, required “bodily harm in the Criminal Code” that is, interferes with the health of the person “that is more than merely transient or trifling in nature.”
Violence to property would again be related to Code offences such as taking down the electrical grid or natural gas supply. The government also argued in its Proclamation of the emergency powers that it was necessary for the “the adverse effects on the Canadian economy.”
Mosley, said, “I am unable to find that the term [threat to the Security of Canada] encompasses the type of economic disruption that resulted from the border crossing blockades, troubling as they were.”
Mosley offers something that was argued by Trudeau that I think is very troubling. He says that Parliament may “revisit the question of whether the CSIS Act definition, which serves the several purposes of that statute, adequately covers the different harms that may result from an emergency situation when they may fall short of ‘serious violence’ to property.”
That is problematic. He is, in essence, opening the door to redefine the Act to make it easier to invoke. I for one do not want the government to have an easier access to emergency powers. On appeal, I can imagine a more activist court take it upon themselves to go ahead and “read in” that provision to find the government met the threshold—as did Justice Rouleau in the Public Order Emergency Commission.
Thankfully, Mosley felt constrained by noting, “This Court can only apply the law as it finds it. It has no discretion to do otherwise.”
Infringement of Charter Rights
Mosely addressed whether the government’s regulations imposed during the invocation of the Act violated the Charter of Rights. He concluded that they did. In particular, the Freedom of Thought, Belief, Opinion and Expression, and Section 8 Unreasonable Search and Seizure.
Mosley said that he has “considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act.” This is a curious admission for a judge to make. Why did he think this was necessary? Is it possible that he knew that there would be many of his colleagues who would be troubled by his decision, and he wanted to placate them? It is odd to say the least.
He further admits that it was not until he took the time to reflect upon the arguments of the public interest litigants – the Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) that caused him to change his mind. “Their participation in these proceedings has demonstrated again the value of public interest litigants,” Mosley said, “Especially in presenting informed legal argument. This case may not have turned out the way it has without their involvement, as the private interest litigants were not as capable of marshalling the evidence and argument in support of their applications.”
This is a very compelling endorsement of civil rights groups. The Canadian Civil Liberties Association and the Canadian Constitutional Foundation are to be applauded for the considerable work on this litigation. It also confirms the important role that interveners have in assisting courts in those very difficult cases.
Why It Matters
This is the first case that we had a court side hold government to account for their mistreatment of the truck protesters. Most courts have rid themselves of hearing the cases involving the truckers and COVID-19 based on mootness. This case now allows those continuing to fight in the courts to use arguments that were successful here. The glass ceiling of justice has been broken. Finally, a judge was willing to take the time and to consider, in its totality, what many others have been saying – the federal government went too far, and it was illegal. The conditions of invoking the Emergencies Act were not met.
The government has already stated that it will appeal this decision. To keep face it must. The millions of dollars that were unnecessarily spent, the lies and misinformation against the protesters said, the abuse inflicted on the families who had their bank accounts frozen, the violence of the police all add up to a government that had lost its way.
As we approach the second-year anniversary of the invocation of the Emergencies Act we have a federal judge say it was all unnecessary.
While Justice Mosley certainly let his personal views be known in this decision, which is something I have rarely seen in judicial decisions. Why did he think that was necessary? I am only speculating, but I suspect it was a signal to all of his colleagues: “Look, I really did not want to do this, but the law made me do it.” That took some courage, and he is to be applauded.
Nevertheless, the decision has troublesome overtones. It appears that Justice Mosley is open to the idea that the government amend the Emergencies Act so that it lowers the threshold of the requirements to invoke the act. In other words, it would be easier for the government to take on emergency powers when there is a protest—even a peaceful protest. That is troubling.
We can enjoy this partial victory, but it certainly has the potential to go to the Supreme Court of Canada. The big story there will be what will Justice Wagner do since he publicly sided with the government after the protest?
The Quebec paper that carried Wagner’s opposition to the trucker protest stated, “Forced blows against the state, justice and democratic institutions like the one delivered by protesters to the doors of the prime minister’s office and the Privy Council, Parliament, the Supreme Court of Canada and the Press Gallery parliamentary between January 28 and February 21 must be denounced with force, and this, by all the figures of power in the country, believes Mr. Wagner.”
Will he recuse himself if the SCC agrees to hear the case?
One possible way this case may end is if the Federal Court of Appeal overturns Mosley’s decision then a further appeal could be denied by the SCC altogether. If that happens there will be no need for the Chief Justice to recuse himself.
One cannot but be concerned about the effect of Wagner’s comments on his colleagues at the Supreme Court of Canada. Indeed, at a minimum, should this case ultimately go to the SCC, Justice Wagner ought to recuse himself accordingly.
The Hon. Brian Peckford was concerned that the courts get back to interpreting the Charter as it was meant to be in 1982. We got some of that in Mosley’s decision, but I do not think he went far enough. His decision was more concerned with statutory interpretation with a wink and a nod on how the government could fix Act to make it easier to implement on the issue of national “Economic” threat.
Nevertheless, this case deals with the very foundational principles of our commitment to the rule of law. Justice Mosley showed himself to maintain complete faith with the law even though his sympathies lay with the government. For that reason alone, I can say that justice was not only done but seen to be done.