Federal government’s decision to invoke Emergencies Act against convoy protests was unreasonable, court rules

A federal judge says the Liberal government’s use of the Emergencies Act in early 2022 to clear convoy protesters was unreasonable.

“I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires,” Federal Court Justice Richard Mosley wrote in a Tuesday decision. “Ultra vires” is a Latin term used by courts to refer to actions beyond the scope of the law.

The case was brought by the Canadian Civil Liberties Association, the Canadian Constitution Foundation and individuals who argued Ottawa did not meet the legal threshold when it invoked the legislation, which had never been used before.

The two groups shared copies of the decision online.

Thousands of protesters angry with the government’s response to the COVID-19 pandemic, including vaccine requirements, descended on Ottawa in January of 2022 and blocked border points elsewhere. The protesters parked large vehicles on key arteries in the capital city for nearly a month and honked their horns incessantly for days.

The government invoked the Emergencies Act on Feb. 14, 2022. It gave law enforcement extraordinary powers to remove and arrest protesters and gave the government the power to freeze the finances of those connected to the protests.

The temporary emergency powers also gave authorities the ability to commandeer tow trucks to remove protesters’ vehicles from the streets of the capital.

The Emergencies Act says that a public order emergency can be declared only in response to “an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency.” The Act defers to CSIS’s definition of “threats to the security of Canada.”

Mosley said the situation created by the protests did not meet that threshold.

Rouleau commission reached different conclusion

The government had argued the measures it took under the Emergencies Act were targeted, proportional and temporary.

A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government’s use of the Emergencies Act in the fall of 2022. The inquiry heard from dozens of witnesses and reviewed thousands of never-before-seen documents, including cabinet ministers’ text messages.

Early last year, Rouleau concluded the federal government met the “very high” threshold needed to invoke the Emergencies Act, citing “a failure in policing and federalism.”

“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote.

Rouleau, an Ontario Court of Appeal justice, said he reached this conclusion with some reluctance.

“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming,” he said in statements he gave after his report was made public.

“Reasonable and informed people could reach a different conclusion than the one I have arrived at.”