Civil liberties groups file response to government’s appeal of Emergency Act ruling, hearing expected in early 2025

The Attorney General of Canada (AGC) filed an appeal in February 2024 to overturn the Federal Court's January 2024 ruling, which found the federal government's use of the Emergencies Act during the 2022 “Freedom Convoy” protests unconstitutional. The Canadian Civil Liberties Association (CCLA) and Canadian Constitution Foundation (CCF), which successfully challenged the original ruling, have now responded to defend the decision.

In its appeal, the AGC aims to reverse the court's ruling on several fronts, focusing primarily on the rejection of the government's justification for invoking the Emergencies Act. The AGC contends that the court improperly applied the reasonableness standard in reviewing the government's actions. It claims that the Federal Court should have shown greater deference to the Governor in Council’s (GIC) decision to declare a public order emergency.

According to the AGC, the court overstepped by substituting the GIC’s judgment with its own, especially in matters of national security and emergency management, which are typically within government discretion. The AGC maintains that in times of potential national crises, the executive branch is better equipped to assess and respond to emerging threats.

The government asserts that it acted reasonably, using available information to declare an emergency and implement measures to address widespread protests and border blockades. The AGC further believes the Federal Court wrongly relied on hindsight by reevaluating evidence that wasn't fully available when the emergency was declared.

Additionally, the AGC challenges the court's determination that the Emergencies Act thresholds were unmet, particularly regarding the definition of a "threat to the security of Canada." It claims that the convoy protests posed a clear danger to national security, citing the economic impact on key border crossings and the risk of serious violence.

The government points to the prolonged blockades, which disrupted vital trade routes like the Ambassador Bridge, and increasing tensions that could have escalated further. The AGC criticizes the court's failure to account for the real and immediate threats posed by the protests, including reports of potential violence and law enforcement's inability to manage the situation with existing legal tools.

The government insists that the protests, which involved significant occupation of downtown Ottawa and critical border points, warranted emergency measures to restore order and protect national security.

The AGC also disputes the court’s conclusion that the regulations and orders under the Emergencies Act violated sections 2(b) (freedom of expression) and 8 (protection against unreasonable search and seizure) of the Canadian Charter of Rights and Freedoms. It asserts that the court failed to appropriately balance public safety against individual rights during a national emergency.

While acknowledging that certain Charter rights were limited, the AGC contends these restrictions were justified under section 1 of the Charter, which permits reasonable limits on rights in a free and democratic society. The government argues that the emergency measures, such as freezing assets, were proportionate responses to the disruption caused by the protests.

On the other side, both the CCLA and CCF stand by the Federal Court’s ruling, emphasizing that the government’s use of the Emergencies Act was an extreme and unjustified overreach. Their memorandums state that the legal thresholds for invoking the Act were not met and that the measures violated key constitutional rights.

The CCLA and CCF assert that the Emergencies Act was not intended to serve as a convenient tool when other methods are available to manage a crisis. They stress that the Act’s high legal thresholds—requiring a threat to Canada’s security that cannot be addressed through ordinary laws—were not satisfied.

While the protests were disruptive, the groups maintain they did not constitute a national emergency. They cite the fact that many blockades were resolved by police using existing legal mechanisms, without invoking the Act. For instance, the blockade at the Ambassador Bridge in Windsor was cleared through a court injunction and police action before the emergency measures were enacted.

The respondents dismiss the government’s claim that the protests posed a serious national security threat. They highlight that the Canadian Security Intelligence Service (CSIS) itself had determined the convoy did not meet the definition of such a threat.

The CCLA and CCF contend the government’s decision was based on speculative risks rather than tangible threats. They note that while there were concerns about potential violence, no significant violent incidents occurred during the protests, and law enforcement should have been allowed to manage the situation using existing laws.

The respondents also claim that the emergency regulations violated core Charter rights, including freedom of expression (section 2(b)) and protection against unreasonable search and seizure (section 8). They believe the regulations went beyond what was necessary to address the protests, criminalizing peaceful assembly and enabling the freezing of assets without due process.

The CCLA and CCF stress that peaceful assembly is protected under the Charter, and while the blockades were disruptive, the government’s broad prohibition on protest participation unjustifiably restricted free expression. They also criticize the use of financial measures, which allowed law enforcement to instruct banks to freeze assets without judicial oversight, infringing on Canadians' privacy and property rights.

The respondents argue that these violations cannot be justified under section 1 of the Charter, as the government had less intrusive tools available that could have addressed the protests without infringing on constitutional rights.

A date for the appeal hearing will be scheduled in November 2024, with the hearing expected to take place in early 2025.