The appellate court dismissed every appeal before it on Friday
The Federal Court of Appeal has upheld a two-year-old ruling that found the Liberal government unreasonably invoked the Emergencies Act to clear the 2022 Freedom Convoy.
Multiple parties had appealed the 2024 ruling by Federal Court Justice Richard Mosley, which addressed four lawsuits challenging the slew of emergency measures the government rolled out in early 2022.
The government told the appellate court that Mosley, who also ruled that some of its measures to control the protests violated the Canadian Charter of Rights and Freedoms, had reached the wrong conclusion. However, two public interest groups – the Canadian Civil Liberties Association and the Canadian Constitution Foundation – argued that Mosley’s ruling on the Charter violations should have been even broader.
A third set of plaintiffs, which includes Canadian Frontline Nurses, an advocacy group that made headlines during the COVID-19 pandemic for its anti-vaccine rallies, meanwhile appealed Mosley’s finding that they lacked standing to pursue their lawsuit.
The FCA was unmoved.
“We are of the opinion that every appeal before this court should be dismissed,” the appellate court said in its decision on Friday.
The case dates back to January 2022, when hundreds of vehicles and thousands of individuals converged in downtown Ottawa to protest public health restrictions implemented by the federal government in response to the COVID-19 pandemic, including new vaccination requirements for truckers crossing the border into Canada.
Over the next month, the protestors occupied the downtown core, demanding that the government revoke all COVID-19 measures. The mayor of Ottawa and the government of Ontario declared states of emergency. Smaller protests took place across the country, while some protestors began blockades of US-Canada border crossings in Alberta, Ontario, Manitoba, and BC.
On Valentine’s Day, the Trudeau government invoked the Emergencies Act for the first time since the statute was enacted in 1988 to empower the federal government to take temporary, extraordinary measures to deal with public crises.
The next day, the government enacted further emergency regulations and an economic measures order, which gave law enforcement the power to compel people and businesses to cooperate and hand over equipment to tow vehicles and dismantle blockades, authorized banks to stop providing services to protestors temporarily, designated the areas around Parliament Hill a place of prohibited assembly, and more.
The Ottawa police made nearly 200 arrests and dismantled barricades in the days that followed. Prime Minister Pierre Trudeau revoked the emergency measures on Feb. 23.
Between Feb. 17 and Feb. 23, the Canadian Frontline Nurses, the Canadian Civil Liberties Association, the Canadian Constitution Foundation, and individuals who participated in the Ottawa protest filed separate lawsuits to challenge the invocation of the Emergency Act as well as the regulations and economic order.
In his 2024 ruling that consolidated all four cases, Mosley dismissed the Canadian Frontline Nurses’ lawsuit for lack of standing and expressed “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 [Emergencies Act],” he added.
However, Mosley ultimately sided with the plaintiffs, finding that the government did not meet the legal requirements to invoke the Emergencies Act and that aspects of the regulations and economic order infringed provisions of the Charter.
The Federal Court of Appeal’s decision
On Friday, the FCA said the parties’ various appeals boiled down to two issues: whether the government’s decision to declare a public order emergency under the Emergencies Act was reasonable, and whether the government’s Charter violations were justified by s. 1 of the Charter, which holds that Charter rights may be subject to “reasonable limits.”
Under the Emergencies Act, the government can only declare a public order emergency if it meets a number of criteria, including believing “on reasonable grounds” that a public order emergency exists and needs to be dealt with through special temporary measures.
The act also defines “public order emergency” as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”
Upon reviewing the evidence the government considered before invoking the public order emergency, the FCA disagreed that the government could reasonably have believed the protests posed a threat to national security. The appellate court found “very little hard evidence of any actual serious violence or threats of it,” except at a blockade at an Alberta border crossing, where authorities discovered a large amount of weapons and ammunition.
Beyond disruptions to the economy, “the only incident of violence put forward by the [Attorney General of Canada] was the seizure of a cache of firearms and ammunition at Coutts [the Alberta border crossing], as well as vague reports of harassment, intimidation, and assault, and the fact that the police forces in Ottawa were overwhelmed,” the appellate court said.
“In our view, this is insufficient to satisfy the compelling and credible information requirement to justify the conclusion that there were reasonable grounds to believe that there was a threat or use of acts of serious violence.”
The FCA also found that the government could not reasonably believe that there was a national emergency, which the Emergencies Act defines as an “urgent and critical situation of a temporary nature” that “seriously endangers the lives, health or safety of Canadians,” “exceed[s] the capacity or authority of a province to deal with it”, and “cannot be effectively dealt with under any other law of Canada.”
The appellate court noted that the situation at the Alberta border crossing had been “effectively dealt with” before the Emergencies Act was invoked. The court also found “no evidence that the lives, health or safety of the people living in Ottawa were endangered (as annoying, stressful and concerning as the protests were).”
“What was lacking to re-establish public order was not more legal tools beyond what was already available, but more policing resources,” the court added.
In his ruling, Mosley had found that the government’s measures to control the protests violated ss. 2(b) and 8 of the Charter, which respectively guarantee the right to freedom of expression and freedom to be secure against unreasonable search or seizure. While the government argued that these findings were wrong, since s. 1 of the Charter holds that Charter rights are subject to “reasonable limits,” the Canadian Civil Liberties Association and the Canadian Constitution Foundation told the FCA that Mosley should have also found that the government violated s. 2(c) of the Charter, which guarantees the right to peaceful assembly.
The FCA affirmed that the protests and blockades qualified as a form of “expression” protected by s. 2 of the Charter. To use s. 1 of the Charter to justify its breach of protesters’ s. 2 rights, the government had to show that its objectives were “pressing and substantial.” The government was also obligated to find a way to breach the protestors’ rights as little as possible.
The appellate court found that the government failed to meet these criteria, since numerous options were available to control the protests that would have had a less severe impact on protestors’ s. 2 rights, such as applying emergency regulations only to non-peaceful protestors.
The court also rejected the government’s use of s. 1 to justify its s. 8 breaches, noting that the emergency measures gave banks the authority to share the personal banking information of individuals who were suspected of having violated the measures with the Canadian Security Intelligence Service and Royal Canadian Mounted Police.
“The risk of innocent individuals being wrongfully identified as ‘designated persons’ could also have been reduced by ensuring that financial institutions had a reliable source of information regarding the activities of their customers, such that they were not expected to rely on news stories and the internet to decide whether their disclosure obligations had been triggered,” the court said.
The court declined to address the arguments about whether the government violated s. 2(c) of the Charter.
In a statement, Ewa Krajewska, a partner at Henein Hutchison Robitaille LLP who represents the Canadian Civil Liberties Association, said of Friday’s ruling, “Two levels of court have now agreed that the federal government’s precipitous invocation of the Emergencies Act did not satisfy the stringent legal thresholds built into the legislation.
“Those legal thresholds – the requirements that there be ‘threats to the security to Canada’ so serious that they constitute a 'national emergency' – are designed to balance our robust Charter protections for fundamental freedoms and democratic values with the need to respond to emergencies where necessary,” Krajewska added. “The decision is important both from an administrative law perspective and a constitutional perspective, especially in upholding and expanding on the importance of freedom of expression and the right to protest.”
Blair Ector, a founding partner at Loberg Ector LLP, represents individuals who participated in the Ottawa protests and filed one of the four lawsuits challenging the invocation of the Emergencies Act. Ector said he welcomed the FCA’s “clear, articulate, and well-reasoned finding that the invocation of the Emergencies Act was unreasonable and that the freezing of bank accounts without a warrant or without prior judicial authorization violated s. 8 of the Charter.”
“The Federal Court of Appeal described this process as being ‘troubling in the extreme’ and ‘egregious,’ which we agree with,” Ector said. He added that by defending their rights, his clients “have helped protect the fundamental freedoms of all Canadians. This truly is a victory for all Canadians.”
A statement by the nurses’ association noted that the court found it lacked standing to pursue its lawsuit because the emergency measures did not directly impact its members.
“It appears in Canada that it is not enough to be in a group subject to crucifixion; you can only challenge the government after you have actually been crucified,” the group said.
“We are disappointed with that aspect of the decision but pleased with the role we played in holding the government to account with respect [to] the actions it took in violating the rights of Canadians.”
Sujit Choudhry of Circle Barristers, who represented the Canadian Constitution Foundation, said the FCA’s decision set a precedent. “The court has affirmed that the Emergencies Act is not a blank cheque,” he said. “Parliament imposed real legal thresholds, and the government must meet them with evidence. Today’s decision restores the rule of law to Canada’s most extraordinary powers.”
Counsel for the Attorney General of Canada said the government is reviewing the decision and is not in a position to comment at this time.
