A judge has ruled it was unreasonable for the Liberal government to use the Emergencies Act to quell “Freedom Convoy” protests in the national capital and at key border points two years ago.

In a decision released Jan. 23, Federal Court Justice Richard Mosley said invocation of the Act led to the infringement of constitutional rights. 

The Canadian Civil Liberties Association and several other groups and individuals had argued in court that Ottawa ushered in the emergency measures without sound statutory grounds.

The government contended the steps taken to deal with the pan-Canadian turmoil were targeted, proportional, time-limited and compliant with the Charter of Rights and Freedoms. 

The Public Order Emergency Commission, which carries out a mandatory review after invocation of the Emergencies Act, found the government met the very high legal standard for using the law.

Mosley heard arguments in court over three days last April.

In his ruling, Mosley said he revisited the events with the benefit of hindsight and a more extensive record of the facts and the law than the government had when it proclaimed a public order emergency.

“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration,” Mosley wrote.

Government to appeal ruling

Deputy Prime Minister Chrystia Freeland said the government respectfully disagrees with the decision and will appeal. 

In early February 2022, downtown Ottawa was filled with protesters, many in large trucks that rolled into the city beginning in late January. 

Ostensibly a demonstration against Covid-19 health restrictions, the gathering attracted people with a variety of grievances against Prime Minister Justin Trudeau and the Liberal government.  

The usually calm streets around Parliament Hill were beset by blaring rig horns, diesel fumes, makeshift encampments and even a hot tub and bouncy castle as participants settled in.  

Public anger against protesters

The influx of people, including some with roots in the far-right movement, prompted many businesses to close temporarily, and aggravated residents with noise, pollution and harassing behavior.

Public anger mounted over a lack of enforcement action by Ottawa police.  

Meanwhile, trucks clogged key border crossings, including key routes to the United States at Windsor, Ont., and Coutts, Alta.  

Emergencies Act and War Measures Act

On Feb. 14, the government invoked the Emergencies Act, which allowed for temporary measures including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets and a ban on support for participants.  

It was the first time the law had been used since it replaced the War Measures Act in 1988.  

In a Feb. 15 letter to premiers, Trudeau said the federal government believed it had reached a point “where there is a national emergency arising from threats to Canada’s security.”

The civil liberties association maintained that legal threshold was not met.  

The Federal Court hearing included others who filed actions contesting use of the emergency measures: the Canadian Constitution Foundation, Canadian Frontline Nurses and Kristen Nagle, and individuals Jeremiah Jost, Edward Cornell, Vincent Gircys and Harold Ristau.

This report by The Canadian Press was first published Jan. 23.