Federal Judge Rules Trudeau's Invocation of Emergencies Act Was Unconstitutional

A federal judge has just found that the Canadian federal government acted unconstitutionally when it invoked the Emergencies Act to shut down the “Freedom Convoy” protest that brought Ottawa to a standstill in February 2022. The convoy of truckers, cheered on by pedestrians, made its way into Ottawa on January 29th 2022 in protest against vaccination mandates that they saw as an unwarranted threat to their livelihood as well as a violation of their right to informed consent. Emergency measures taken against the protesters included the prohibition of public assemblies, the ban on financial donations, and directions to banks to freeze the assets of protesters.

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A number of associations, most notably the Canadian Civil Liberties Association and the Canadian Constitution Foundation, challenged the legality of the Trudeau government’s unprecedented use of the Emergencies Act on numerous grounds, including the government’s failure to demonstrate that there was no way to tackle the public order problem without invoking a national emergency, and the government’s unjustified violation of Canadians’ Charter rights, including freedom of expression.

In a judicial review decision released on Tuesday, 23rd January 2024, federal court Justice Richard Mosley found that even though he accepted that the protests “went beyond legitimate protest and reflected an unacceptable breakdown of public order,” nonetheless the Trudeau Cabinet’s invocation of the Emergencies Act in February 2022 was unreasonable and unconstitutional, primarily for two reasons (as summarised by the Canadian Constitution Foundation):

(1) First, because the extraordinary powers granted to the Federal Executive by the Emergencies Act were intended as “a tool of last resort,” but in this case it was not shown that the Federal Government confronted a situation that could not be dealt with by standard legal and policing measures.

(2) Second, Justice Mosely did not believe the economic disruption entailed by the blockades could reasonably be viewed as a “threat to the security of Canada,” on a par with terrorism, espionage and attempts to overthrow the government.

This ruling, which the Canadian Government has said it intends to appeal, appears to vindicate the truckers, at least from a legal perspective, and represents a significant setback for the public image of the Liberal government, which is now legally liable for a series of significant civil rights infringements. It will undoubtedly be haled by the Freedom Convoy and their supporters as a vindication of their right to protest against the government without confronting crippling sanctions like having their assets frozen or their donations suspended by order of the government.

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