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Ewa Krajewska

Federal Court review of emergency declaration not redundant after Rouleau Inquiry report: counsel

Thursday, March 02, 2023 @ 5:24 PM | By Cristin Schmitz

It’s full steam ahead for a groundbreaking $290-million class action in Ontario Superior Court and a novel judicial review in Federal Court that were spawned respectively by the illegal “Freedom Convoy” blockades in Ottawa and other Canadian locales last year and by the federal government’s subsequent declaration of a national “public order” emergency.

Counsel say the two cases are continuing apace following the release Feb. 17 of the 2,085-page final report of the Public Order Emergency Commission (Rouleau Inquiry), in which commissioner Paul Rouleau of the Court of Appeal for Ontario concluded that the Liberal government’s declaration of a nine-day public order emergency in 2022 met “the very high threshold required for the invocation” of the federal Emergencies Act.

“We intend to proceed” with judicial review in Federal Court of the federal cabinet’s decision to declare a national emergency from Feb. 14 to Feb. 23, 2022, confirmed Eva Krajewska of Toronto’s Henein Hutchison Robitaille LLP, who with Brandon Chung represents the Canadian Civil Liberties Association (CCLA). The CCLA and other applicants are also challenging the constitutionality of extraordinary measures that were temporarily rolled out under the Emergencies Act, which included asset freezes and broad bans on public assemblies.

Eva Krajewska, Henein Hutchison Robitaille LLP

Eva Krajewska, Henein Hutchison Robitaille LLP

Krajewska told Law360 Canada the CCLA’s judicial review, scheduled to be heard before Federal Court Justice Richard Mosley from April 3-5, 2023, is not redundant — notwithstanding Justice Rouleau’s determination that Ottawa’s declaration of a public order emergency was “appropriate” because the Liberal cabinet met the Emergencies Act standard, i.e. it had “reasonable grounds to believe that there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures.”

The CCLA argues the opposite in its Federal Court challenge, but “it’s clear from the statute ... and Justice Rouleau recognizes this in his report, that there are multiple accountability measures for the invocation of the Emergencies Act: one of those is the [commission of] inquiry, but the other is the court process,” Krajewska said. “As Justice Rouleau says in his report ... his role is distinct from that of the court, and he does not have the legal authority to adjudicate the lawfulness of the declaration, and that is what we’re going to be asking Justice Mosley to do.”

Justice Rouleau did make findings about the necessity and effectiveness of the various extraordinary emergency measures (he found that the government did overreach in some respects), but he did not assess the emergency measures’ constitutionality — a central issue in the CCLA’s judicial review (For highlights of his report, see below).

“What we’ve challenged is the lawfulness of the orders that were issued under the Emergencies Act,” and whether they were reasonable and demonstrably justified in a free and democratic society, under s. 1 of the Charter, Krajewska said, noting that Justice Rouleau “doesn’t really go into a full constitutional analysis of whether they were potentially overly broad in their scope and effect across the country.”

Citing, by way of example, the blanket prohibition of public assemblies that might lead to the breach of the peace, Krajewska said the CCLA believes “that was probably overly broad. During the period of the Emergencies Act ... in my mind, there was no permission to protest across the country — not just with respect to the Freedom Convoy.”

The CCLA (and other applicants) is also challenging “very significant” emergency economic measures that meant that anyone participating in, or contributing to, the Freedom Convoy, was at risk of having all of their assets frozen, including joint bank accounts, credit cards and car insurance, Krajewska said. “That is a power that the government gave itself that it does not normally have under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or otherwise.”

Whether or not the CCLA prevails in its judicial review, the resulting court decision(s) should bring needed clarity to the legality of the emergency measures, as well as to the much-debated legal standard for invoking the Emergencies Act, Krajewska said.

The judicial review of the first emergency declaration under the Act will also shed light on the nature of the process for challenging a declaration of emergency, she said. “One of the hopes in having this judicial review heard is that it’s important to set a framework for how a judicial review of the declaration of emergency should be heard, and what the government should disclose and provide, and how quickly should it proceed, and what should be the factual matrix underlying it.”

Krajewska noted that although the CCLA filed its Federal Court judicial review application promptly on Feb. 18, 2022 — within four days of the February 14 emergency declaration — the case was slowed down by preliminary legal wrangles.

“I think it’s important for Justice Mosley to set those ground rules for the future,” she suggested. “What is the evidence that the government has to disclose on this type of judicial review for the judicial review to be effective? Is the government under an obligation to disclose redacted cabinet confidences and Incident Response Group meeting documents in order for it to be effective?”

Contrasting the roles of the Commission of Inquiry and the Federal Court, Krajewska said Justice Rouleau had a broader policy role in examining what happened, and recommending possible reforms to the Act, while the court’s role is to assess whether the cabinet had the requisite legal authority at the time of the declaration and acted in accordance with the Charter.

The court’s role is “much more focused on the legal standards at issue,” she explained. “It's not a policy role. And so Justice Rouleau was able to make after-the-fact findings, based on the evidence that he heard from the [cabinet] ministers and everyone involved. But Justice Mosley is really looking at what was before the [cabinet] decision-maker when the decision was made, and did that meet the legal test?”

Paul Champ, Champ & Associates

Paul Champ, Champ & Associates

Paul Champ of Ottawa’s Champ & Associates, plaintiffs’ counsel in a novel Ontario Superior Court private and public nuisance class action claiming damages for “serious harms and losses experienced” by downtown Ottawa residents, businesses and workers” as a result of the Freedom Convoy’s actions, said he welcomes the judicial review brought by the CCLA and other applicants.

“I’m glad they’re doing it — I think it’s really important,” he said, calling it “salutary” that so many groups, individuals and members of the public have been “very concerned with the federal government invoking the Emergencies Act ... It says a lot about our democracy, and I’m glad those groups are pursuing those issues.”

When it comes to determining whether the government was “reasonable” in declaring a public order emergency, i.e. under standard of review analysis, “I think we kind of have our answer” from the commission, he suggested.

The Rouleau Inquiry made 56 recommendations, including in the areas of policing; federal intelligence collection and co-ordination; critical trade corridors and infrastructure; and reforms to the Emergencies Act.

However, the testimony which emerged during the commission’s factual hearings, from 71 witnesses during 31 days of hearings, did not provide much new information for Champ’s clients’ case against convoy organizers, or for their “reverse class action” against named representatives of a class of unnamed “funders” who financially supported the convoy and a class of unnamed “truckers” whose trucks were used in the blockades. (Champ said there have only been four or five reverse class actions, “and there’s never been one where there’s been a plaintiff class suing a defendant class — that is new.”)

Justice Rouleau “reaffirmed what we knew,” Champ commented. “He said it was unsafe, and it was chaotic, in downtown Ottawa. And I didn't need a commission of inquiry to tell me that nor did my clients — we’re going to have all kinds of evidence on that.”

Testimony at the inquiry provided “a bit more insight” into what the convoy organizers were doing and their interactions, Champ observed. “Some of that’s interesting and in one fashion or another might be helpful for us,” he remarked. “But ... a lot of those folks, everything they were doing, they were doing online ... posting on social media. So these [defendant] folks, for the most part, were kind of an open book.”

The five-volume final report of the Rouleau Inquiry, including a 272-page executive summary, appendices and policy papers, spotlights a litany of problems in governments’ and police officials’ handling of the Freedom Convoy blockades and demonstrations in Ottawa in January 2022.

Justice Paul Rouleau

Justice Paul Rouleau

With respect to what was arguably the central question of his statutory mandate, Justice Rouleau concluded that, all things considered, it was “appropriate” for the Trudeau government to declare a public order emergency — for the first time under the 1988 federal Emergencies Act — thereby enabling Ottawa, for the duration of the declared emergency from February 14-23, 2022, to arrogate to itself extraordinary powers, which included banning certain protest assemblies across Canada, unilaterally freezing assets and requisitioning tow trucks.

“I have concluded that Cabinet was reasonably concerned that the situation it was facing was worsening and at risk of becoming dangerous and unmanageable,” Justice Rouleau wrote. “There was credible and compelling evidence supporting both a subjective and objective reasonable belief in the existence of a public order emergency. The decision to invoke the Act was appropriate.”

Justice Rouleau acknowledged, however, that unlike a court, his inquiry did not have the legal authority (nor benefit from in-depth constitutional arguments from the participants) to determine whether each of extraordinary measures Ottawa rolled out were Charter-compliant.

Nor did he have the legal authority to adjudicate the “lawfulness” of the declaration; rather it is up to the Federal Court to assess “the effect or significance of the Commission’s findings and conclusions.”

“In the present situation ... I am faced with a statute that has never been used or judicially interpreted, and questions have been raised by the parties as to whether its conditions have been satisfied,” Justice Rouleau wrote. “My assessment of the circumstances must therefore inevitably involve a consideration of the Act’s requirements,” the judge wrote. “Thus, I interpret the Act and the Terms of Reference of my mandate as directing that I should enquire into the circumstances that led to the declaration being issued, examine and assess the basis for the invocation of the Act, and make findings and draw conclusions about the appropriateness of the declaration and the exercise of Executive Summary powers granted under it, including whether the Act’s requirements were met. The ultimate legality of the decision remains within the purview of the courts.”

Summing up the standard the federal government had to meet, Justice Rouleau stated that “to declare a public order emergency, Cabinet had to believe, on reasonable grounds, that: a. there was an urgent and critical situation of a temporary nature that seriously endangered the lives, health, or safety of Canadians; b. the emergency arose from activities directed toward the threat or use of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective; c. the emergency was of such proportions or nature that it exceeded the capacity or authority of a province to deal with; d. the emergency could not be effectively dealt with by any other federal law; and e. the emergency required the taking of special temporary measures. The Government also had to establish that the requirement of provincial consultation mandated by s. 25 had been met.”

Justice Rouleau found that the government had the requisite subjective belief: “The Federal Government undertook a thorough and structured analysis and, applying the law as it understood it to be, Cabinet and the Prime Minister believed that the threshold for declaring a public order emergency had been met,” he reasoned. “I have no hesitation in accepting that Cabinet had a subjective belief that it was facing a public order emergency.”

The judge said the “more substantial” issue was whether the cabinet’s belief in the existence of a public order emergency was objectively reasonable. He concluded that there was also “an objective basis for Cabinet’s belief, based on compelling and credible information. The standard of reasonable grounds to believe does not require certainty.”

The judge emphasized that this conclusion “should in no way be taken to mean that peaceful, lawful protest that seeks to achieve a change in government policy is in any way a threat to the security of Canada. To the contrary, it is a fundamental and cherished part of a healthy democracy. Indeed, the right to protest helps ensure the security of Canada.”

However, “the situation that Canada experienced in February 2022 was not peaceful, lawful protest,” Justice Rouleau said. “Many of the protesters may have intended it to be, but the situation escaped their control,” he observed. "At some point peaceful, lawful protest ‘metastasized into something else.’ ”

Justice Rouleau said the threshold for invocation of the Act is the point “at which order breaks down and freedom cannot be secured or is seriously threatened. In my view, that threshold was reached here. I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming and I acknowledge that there is significant strength to the arguments against reaching it. It may well be that serious violence might have been avoided, even without the declaration of emergency. That it might have been avoided does not, however, make the decision wrong.”

Justice Rouleau noted that to justifiably declare a national emergency, the emergency must be of such proportions or nature that it exceeded the capacity (i.e. ability in practice) or authority (i.e. power) of a province to deal with it. “Between their inception and the date that the emergency was declared, the protests had grown into a movement that could not be resolved in a localized, piecemeal fashion,” he said. “It was a national situation, requiring national measures such as cutting off funding to the protests, which no province had the authority to do.”

Moreover, for a situation to constitute a national emergency, it must be one that cannot be dealt with “under any other law of Canada” — i.e. federal statute, regulation, and common law (excluding provincial law), Justice Rouleau said.

“Here, the evidence shows that the federal government found itself seriously impacted by the protests in the operation of its ports of entry and with respect to critical buildings in Ottawa, as well as in areas of responsibility such as the economy and trade. Jurisdictionally, however, it was unable to resolve the protests or meaningfully contribute to the efforts of police to do so, beyond providing the assistance of the already-stretched RCMP.”

Justice Rouleau noted that there were available police powers under the Criminal Code, such as the power of arrest, which, if effectively used, could bring the protests under control. But “it was apparent that law enforcement had serious concerns about using those powers, including whether engaging in enforcement action would give rise to unacceptable safety risks for police, protesters, and bystanders.”

Justice Rouleau said “this is as an example of a law being legally available, but ineffective due to the practical realities of the situation. Finally, although the option of deploying the Canadian Armed Forces continued to exist, I agree with the Federal Government’s view that it was not an appropriate solution in these circumstances.”

He continued, “on the basis of the information available at that time, I find that there was cause for serious concern that protests associated with the Freedom Convoy were spreading and would continue to do so, and that law enforcement, while responding to these challenges for the moment, were stretched to the limit.”

Quoting the words of former Conservative cabinet minister Perrin Beatty, who introduced the Emergencies Act, Justice Rouleau said: “when the country is threatened by serious and dangerous situations, the decision whether to invoke emergency powers is necessarily a judgment call, or more accurately a series of judgment calls. It depends not only on an assessment of the current facts of the situation, but even more on judgments about the direction events are in danger of moving and about how quickly the situation could deteriorate. Judgments have to be made, not just about what has happened or is happening, but also about what might happen. In addition, to decide about invoking exceptional measures, judgments have to be made about what the government is capable of doing without exceptional powers, and on whether these capabilities are likely to be effective and sufficient.”

As required by his statutory mandate, Justice Rouleau also set out his findings, and “lessons learned,” with respect to the “appropriateness and effectiveness” of the measures taken under the Emergency Measures Regulations and the Emergency Economic Measures Order.

“It is possible for a government to be entirely justified in invoking the Act, but still use the Act in an unjustifiable manner,” Justice Rouleau remarked. A commission “must have a robust role in examining measures adopted under the Act in order to fulfill its role as a check against government overreach.”

Justice Rouleau added that “although the role of the Commission is not to conduct a judicial review, and the Commission does not have the legal authority to render a formal judgment on the ‘lawfulness’ of the measures, I cannot avoid considering the legality of the measures in assessing whether they were appropriate. Again, I do not intend or consider my findings on this topic to be in any sense binding on the courts. The effect or significance of my findings and conclusions in any judicial review proceedings will be a matter for the Federal Court to determine. In my view, however, assessing the appropriateness of measures goes beyond a consideration of whether statutory or constitutional thresholds for the measures have been satisfied.”

Justice Rouleau explained that “’appropriateness’ is a more open-textured standard that permits me to assess the measures holistically. Parts of a measure may be appropriate while other parts may not be. However, any measure that does not meet the statutory preconditions will by definition be inappropriate. I therefore interpret my mandate to give me the freedom to comment about any aspect of the appropriateness of the measures as broadly defined, in light of the information received during the course of the Inquiry. Effectiveness relates more directly to whether the measures fulfilled the purpose of responding to the particular emergency in question.”

Justice Rouleau commented that it was important for him to assess the measures both individually and as a whole. The measures were intended to work with each other, and with existing powers and authorities. “Their effectiveness and their appropriateness should be assessed within the full context in which they operated,” he said.

In assessing the emergency measures Justice Rouleau said the prohibition on certain types of public assemblies that were likely to lead to breaches of the peace was the cornerstone of the entire measures package and was the measure that most directly impacted the constitutional rights of protesters to their freedom of political expression. “While some protesters may have crossed the line into violence, and at times and in places, the assembly may not have been ‘peaceful,’ the fact remains that many protesters were engaged in conduct that is afforded significant protection under the Charter,” Justice Rouleau observed. “For this measure to have been appropriate, it needed to be carefully tailored.”

He said that “in my view, Cabinet went to significant lengths to tailor the prohibition. It did not prohibit all anti-government protests, but only those that were likely to result in a breach of the peace as well as the serious disruption of the movement of persons, goods or trade, interference with critical infrastructure, or the support or threat or use of acts of serious violence (which is not constitutionally protected). This tailoring made a difference. Protests lawfully continued in various locations, including just outside of the town of Milk River, Alta., and at the Canadian War Museum in Ottawa, Ont.”

Justice Rouleau said the Canada-wide geographical scope of the prohibition “does raise legitimate concerns.”

“It may be argued that the prohibition should have applied only in Ontario,” given that problems in Alberta, B.C. and Manitoba had resolved or were soon to be resolved when the state of emergency was declared. “While it is important for Cabinet to carefully consider limiting the geographical scope of measures such as this, I am satisfied that they did, and that there was an objective basis for Cabinet to believe that it was necessary that this measure apply nationally,” Justice Rouleau said. “Although I view it as a close call, I accept that Cabinet was reasonably concerned about continued proliferation of unlawful protests and over-stretched law enforcement resources nation-wide. This was a dynamic and fluid situation.” The judge said the measure sent a clear signal that conduct like that which was occurring in Ottawa would not be tolerated anywhere in Canada. “Finally, Cabinet was concerned about coordination between the protests,” Justice Rouleau said. “While I have found that there was no such coordination, that concern was nonetheless reasonable at the time, and would have contributed to a reasonable belief that it was necessary for this measure to apply nation-wide. I have little difficulty concluding that this measure was effective. The provision clearly indicated to protesters that their conduct was unlawful and provided a firm foundation for police action to remove protesters who did not leave on their own.”

With respect to the cabinet’s designation of protected places (exclusion zones) Justice Rouleau said while the measure’s objective was appropriate, “its design was not.”

“A more carefully crafted measure would have specified, for example, what types of conduct were prohibited, for instance damaging, destroying, or obstructing the use or operation of a designated place,” he explained. Moreover, there was little to suggest that the power to secure designated places specifically contributed to deterring protesters from illegal protests there, he said. “The power went unused because Cabinet’s reasonable fears of further illegal protests interfering with designated places did not materialize. I therefore conclude that it was not an effective measure.”

Justice Rouleau found that a measure requiring the rendering of essential services to assist police was “appropriate in light of the circumstances”, since “it was likely that most, and potentially all available towing companies would have refused to assist police without” it. The authority to compel, if necessary, avoided the problem of retribution from protesters and their supporters, and offered companies the broad indemnification they felt they needed in order to participate, he elaborated. “Indeed, it turned out to be the carrot of indemnification, and not the stick of sanction for refusing to co-operate, that ultimately proved more important in procuring towing capacity.”

The prohibition on providing material support to individuals involved in illegal protests was also appropriate, Justice Rouleau found. “The Ottawa protests were only able to become as entrenched as they did through extensive contributions of support from others. Cash donations allowed for the purchase of hotel rooms and fuel. Sophisticated operations like Adopt-A-Trucker provided food, showers, and shelter. All of these contributed to sustaining the protests. It was appropriate for the Government to attempt to cut off this support to encourage protesters to depart before the police resorted to the use of force.”

Justice Rouleau said he was mindful that providing material support to protesters could be viewed as a constitutionally protected expressive act. “However, given the pressing need to bring the protests to an end, and the important role that cutting off donations played in achieving that goal, I find that it was a reasonable limit to prohibit such donations,” he said, noting he also “had no difficulty in concluding that this measure was effective.”

While few of the online donations ever reached the protesters, there were many other ways that third parties provided material support that sustained the protests, he said. When the ban on providing material support to the convoy was taken together with other measures, such as the asset freezing regime, “I conclude that it played a role in reducing the level of support received by the protesters, which in turn reduced their capacity to continue with the protests. This likely had at least some impact on the footprint of the protests prior to police enforcement action.”

Justice Rouleau said that given the “overall effectiveness of the asset-freezing regime in bringing the emergency to a safe and speedy resolution, I conclude that it was an appropriate and effective measure.”

While this measure should have had mechanisms providing for flexibility in the application of the regime and for the unfreezing of accounts, and it should not have included a provision enabling the removal of vehicle insurance from those designated by police, “viewed as a whole ... it was a powerful tool to discourage participation and to incentivize protesters to leave.”

Justice Rouleau said he was satisfied that the asset-freezing regime “played a meaningful role in shrinking the footprint of the protests, and in doing so, made a meaningful contribution to resolving the Public Order Emergency.”

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