On Feb. 22, 2024, without fanfare, the federal government filed its notice of appeal of Federal Court Justice Richard Mosley’s Jan.23, 2024 judicial review judgment, which held that the governor-in-council did not have reasonable grounds to believe that a threat to national security existed at the time within the meaning of the Act, and thus its decision to declare a public order emergency was ultra vires.
Justice Richard Mosley
“Threats to the security of Canada” is defined, under s. 2(c)of the Canadian Security Intelligence Service Act, as activities “directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”
Noting that under para. 3(a) of the Act, a national emergency is an “urgent and critical situation that exceeds the capacity or authority of the provinces to deal with it, and that cannot be effectively dealt with under any other law of Canada,” Justice Mosley held in his 190-page decision that “the record does not support a conclusion that the [trucker] convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada”: Canadian Frontline Nurses et al. v. A.G. Canada, 2024 FC 42.
While his proclamation that the emergency declaration was illegal sufficed to allow, in part, the judicial review applications of the Canadian Civil Liberties’ Association (CCLA), the Canadian Constitution Foundation (CCF) and two individuals whose bank accounts were frozen pursuant to Emergencies Act powers, Justice Mosley went on to address the constitutionality of temporary measures adopted under the Act’s regulations to deal with the protests. (The federal government announced the same day as his decision that it would appeal.)
The judge held that the Act’s regulations infringed the Charter's s. 2(b) guarantee of freedom of expression, as they were overbroad in applying to people who wished to protest but who were not engaged in activities that were likely to lead to a breach of the peace. Moreover, the Emergency Economic Measures Order infringed the Charter’s s. 8 prohibition of unreasonable search and seizure by permitting unreasonable search and seizure of the financial information of “designated persons” and the freezing of their bank and credit card accounts.As these infringements did not minimally impair the ss. 2(b) and 8 Charter rights, they could not be upheld under s. 1 of the Charter as “reasonable and demonstrably justified in a free and democratic society,” Justice Mosley ruled.
The federal government’s seven-page notice of appeal asks the Federal Court of Appeal to set aside the Federal Court’s judgments and dismiss the underlying judicial review applications or, in the alternative, order the matters referred back to the Federal Court “for a new determination with such directions as this court may deem appropriate.”
The appellant alleges that the Federal Court made multiple errors in holding that the federal government’s decision to proclaim a public order emergency “was unreasonable and ultra vires the Emergencies Act, by applying the reasonableness standard of review in an incorrect manner,” including by:
- “Failing to afford any deference” to the governor-in-counsel’s (GIC) decision to issue the proclamation and associated regulations and order and “in finding there to be only one reasonable interpretation of ss. 3 and 17 of the Emergencies Act and para. 2(c) of the CSIS Act;
- “Reweighing the evidence and substituting its own opinion as to the decision the GIC should have made rather than assessing whether it was reasonable for the GIC to decide that it had reasonable grounds to believe that a public order emergency existed which necessitated the taking of special temporary measures to deal with it, as required by s. 17(1) of the Emergencies Act;
- Reviewing the GIC’s decision “with the benefit of hindsight and based on information that was not available to the GIC at the time it made its decision to issue the Proclamation, Regulations and Order; and
- Finding the Emergencies Act’s requirements of a “national emergency,” a “threat to the security of Canada” and, specifically, “threats or use of acts of serious violence,” had not been met.
Ottawa also contends that the Federal Court erred in fact and law in declaring that the regulations infringed the Charter’s s. 2(b) guarantee of freedom of expression and in declaring that this infringement could not be upheld under s. 1 of the Charter as reasonable and demonstrably justified in a free and democratic society, including by: “adopting an overly narrow articulation of the objective of the Regulations, which failed to recognize that the objective was not limited to prohibiting the conduct of ‘those who behaved in a manner that could reasonably be expected to lead to a breach of the peace’ but included the prevention of inflows into specific areas that could amplify the disruption and make the work of law enforcement in entering and breaking up the occupations more difficult; and in “concluding that any infringement of freedom of expression under subsection 2(b) of the Charter was not minimally impairing or otherwise reasonable and demonstrably justified, based on a hindsight-driven analysis and misapplication of Canada’s burden of proof under section 1 of the Charter, which failed to apply the reasoned apprehension of harm standard.”
The federal government argues as well that the court below erred in fact and law in declaring that the regulations infringed the prohibition in s. 8 of the Charter of unreasonable search or seizure and that the infringement was not justified under s. 1 of the Charter, including by:
- Failing to interpret s. 8 in “accordance with the Supreme Court of Canada’s determination that s. 8 does not protect mere property rights, and that the taking or restraint of property is not a ‘seizure’” within the meaning of s. 8, “where it is done for a purpose other than to further an administrative or criminal investigation;”
- Determining that the Emergency Economic Measures Order was unreasonable within the meaning of s. 8, “based on an untenable interpretation of the order and without applying the relevant jurisprudence or factors for assessing reasonableness outside the criminal context;” and
- Concluding that any impairment of Charter rights was not minimally impairing or otherwise reasonable and demonstrably justified.
The federal government also argues that the Federal Court erred in law by determining that the federal Cabinet “made the decisions to issue the Proclamation, Regulations and Order, and by identifying Cabinet as the de facto decision-maker and the GIC as the de jure decision-maker, for the purposes of identifying the federal board, commission, or tribunal whose decision is at issue for the purposes of section 18.1 of the Federal Courts Act, despite Parliament specifying the GIC as the sole decision-maker under the Emergencies Act.”
The respondent Canadian Civil Liberties Association (CCLA) could not be reached immediately for comment. “CCLA’s legal challenge was not about the protests in Ottawa – these included blockades, which had caused serious hardship to residents in Ottawa, and even greater harm to members of marginalized communities in the city,” the organization says on its website.
“CCLA’s concern and the basis for our challenge were about a government giving itself massive and extraordinary emergency powers that bypass the usual checks and balances of the democratic system. These powers may be necessary in extreme circumstances but are also dangerous for democracy and our rights and freedoms. Our position is that the blockades, while serious, were a policing issue. What concerned CCLA was the government’s use of the Emergencies Act. Emergency powers should not be normalized – they should be used sparingly and carefully to avoid government overreach and civil liberties violations.”
Photo of Justice Richard Mosley: Balfour
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.