Federal Court Rules that the Government’s Invocation of the Emergencies Act on February 14, 2022, was Unreasonable and not Justified.

Image source: flickr/michael_swan

By Myrna El Fakhry Tuttle

Case Commented On: Canadian Frontline Nurses v  Canada (Attorney General), 2024 FC 42 (CanLII).

On January 23, 2024, Justice Richard Mosley of the Federal Court ruled that the government was unreasonable and not justified when it invoked the Emergencies Act (the Act ) on February 14, 2022, in order to deal with protests in various parts of the country.

This ruling came almost a year after the Commissioner of the Emergencies Act inquiry, Justice Paul Rouleau, found that the government met the threshold for invoking the Emergencies Act.

Background

On February 14, 2022, the federal government in Canada invoked, for the first time, the Act by issuing a Proclamation of a public order emergency in order to end disruptions, border blockades and the occupation of the Capital City of Ottawa. The proclamation was followed by an Emergency Economic Measures Order (the Order) and by Emergency Measures Regulations (the Regulations). (See: Myrna El Fakhry Tuttle and Linda McKay-Panos, Canada’s Extraordinary Use of the Emergencies Act Poses Human Rights Concerns).

The Canadian Frontline Nurses, the Canadian Civil Liberties Association (CCLA) and The Canadian Constitution Foundation (CCF), among others, applied for judicial review arguing that the government’s invocation of the Act breached the country’s Charter of Rights and Freedoms.

Decision

The Federal Court found that the federal government’s decision to declare a public order emergency under the Emergencies Act in 2022 was unreasonable and not justified.

Discussion

1.     Reasonable Grounds

Section 16 of the Act states: “public order emergency means an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency”.

Section 17(1) states: “When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency”.

Regarding the issuance of the Proclamation, Justice Mosley questioned “whether the Governor in Council (GIC), acting on the recommendation of Cabinet, reasonably formed the belief that reasonable grounds existed to declare a public order emergency under s 17 of the Act ” (at para 202). Justice Mosley stated that “the “reasonable grounds to believe” evidentiary standard requires more than mere suspicion and less than proof on a balance of probabilities” citing Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (at para 114). Justice Mosley added that “[i]t is a probability, rather than possibility based standard” citing R v Chehil, 2013 SCC 49 (at para 27) ( Canadian Frontline Nurses at para 202).

Justice Mosley observed that “the Emergencies Act contains objective legal thresholds that must be satisfied before a Proclamation may issue. And these thresholds are “more akin to the legal determinations courts make, governed by legal authorities, not policy” (at para 210).

According to section 17(2)(c) “if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects extend” then a declaration of a public order emergency shall be specified.

The Applicants argued that “there was no, or insufficient, evidence that the lives, health or safety of Canadians were seriously endangered beyond the capacity or authority of the provinces to deal with the situation or, that it could not effectively be dealt with under any other law of Canada” (at para 223).

The Respondent claimed that the GIC had reasonable grounds to believe that there was a national emergency (at para 239) by stating that “the effects were being experienced across Canada and it was not reasonable to limit the application of the Act (at para 240).

In this regard, Justice Mosley asserted that “it may be considered unrealistic to expect the Federal Government to wait when the country is ‘threatened by serious and dangerous situations’, … while the Provinces or Territories determine whether they have the capacity or authority to deal with the threat or, if not, could enact what is lacking in their respective legislative or regulatory tool boxes” (at para 241). However, Justice Mosley added “that is what the Emergencies Act appears to require” (at para 241).

Justice Mosley made it clear that there was a concern that new blockades could take place at any moment across the country, but the government had evidence that these incidents were being dealt with by local and provincial authorities—except the ones in Ottawa (at para 249).

Justice Mosley noted:

[d]ue to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces. This does not mean that every tool has to be used and tried to determine that the situation exceeded the capacity or authority of the provinces. And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation (at para 253).

Justice Mosley concluded that “there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires” (at para 255).

In addition, Justice Mosley stated that “it was reasonable for the GIC to be alarmed at the impact of the blockades and the effects they were having on cross-border trade. Those effects could be said to fall within a broader sense of ‘threats to the security of Canada’ or, more generally, the concept of ‘national security’” (at para 256).

Justice Mosley added that to declare a public order emergency under the EA ( Emergencies Act ), each element must be satisfied. He found that “the harm caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property” (at para 296).

Therefore, Justice Mosley found that “the GIC did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Act and the decision was ultra vires” (at para 297).

2.The Charter of Rights and Freedoms (the Charter)

When the Act is invoked, and according to its preamble, the Charter continues to protect individual rights as the government takes special temporary measures to protect the safety and well-being of Canadians.

The Applicants argued that the Regulations passed to support the Act violated the fundamental freedoms set out in section 2 in the Charter (at para 302).

i.               Section 2(b)

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association

The Applicants argued that sections 2, 4 and 5 of the Regulations violated section 2(b) of the Charter (at para 303). These read:

2 (1) A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by:

(a) the serious disruption of the movement of persons or goods or the serious interference with trade;

(b) the interference with the functioning of critical infrastructure; or (c) the support of the threat or use of acts of serious violence against persons or property.

Minor

(2) A person must not cause a person under the age of eighteen years to participate in an assembly referred to in subsection (1).

Prohibition — entry to Canada — foreign national

3 (1) A foreign national must not enter Canada with the intent to participate in or facilitate an assembly referred to in subsection 2(1).

Exemption

(2) Subsection (1) does not apply to:

(a) a person registered as an Indian under the Indian Act;

(b) a person who has been recognized as a Convention refugee or a person in similar circumstances to those of a Convention refugee within the meaning of subsection 146(1) of the Immigration and Refugee Protection Regulations who is issued a permanent resident visa under subsection 139(1) of those Regulations;

(c) a person who has been issued a temporary resident permit within the meaning of subsection 24(1) of the Immigration and Refugee Protection Act and who seeks to enter Canada as a protected temporary resident under subsection 151.1(2) of the Immigration and Refugee Protection Regulations;

(d) a person who seeks to enter Canada for the purpose of making a claim for refugee protection;

(e) a protected person;

(f) a person or any person in a class of persons whose presence in Canada, as determined by the Minister of Citizenship and Immigration or the Minister of Public Safety and Emergency Preparedness, is in the national interest.

Travel

4 (1) A person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place.

Minor– travel near public assembly

(2) A person must not cause a person under the age of eighteen years to travel to or within 500 metres of an area where an assembly referred to in subsection 2(1) is taking place. 2(1). Exemptions

(3) A person is not in contravention of subsections (1) and (2) if they are:

(a) a person who, within of the assembly area, resides, works or is moving through that area for reasons other than to participate in or facilitate the assembly;

(b) a person who, within the assembly area, is acting with the permission of a peace officer or the Minister of Public Safety and Emergency Preparedness;

 (c) a peace officer; or

(d) an employee or agent of the government of Canada or a province who is acting in the execution of their duties.

Use of property — prohibited assembly

5 A person must not, directly or indirectly, use, collect, provide make available or invite a  person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity.

The Applicants claimed that the Regulations criminalized anyone who attended the protests even if they did not take part in the “actual conduct leading to a breach of peace”. Therefore, “the Regulations limited the right to expression of protestors who wanted to convey dissatisfaction with government policies, but who did not intend on participating in the blockades” (at para 307).

Justice Mosley agreed that the scope of the Regulations was overbroad as it included people who just wanted to join in the protest without having been the focus of enforcement efforts by the police. But, under the terms of the Regulations, they could have been subject to enforcement actions like anyone else who “behaved in a manner that could reasonably be expected to lead to a breach of the peace” (at para 308).

Justice Mosley stated that “one aspect of free expression is the right to express oneself in certain public spaces. By tradition, such places become places of protected expression,” citing Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (at para 61). Justice Mosley added “to the extent that peaceful protestors did not participate in the actions of those disrupting the peace, their freedom of expression was infringed” ( Canadian Frontline Nurses at para 309).

However, Justice Mosley found no breach of section 2(c) of the Charter right of peaceful assembly (at para 314) and no breach of section 2(d) of the Charter right of freedom of association (at para 317).

ii.             Section 7

Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10(2) of the Regulations states:

In the case of a failure to comply with these Regulations, any peace officer may take the necessary measures to ensure the compliance and allow for the prosecution for that failure to comply

(a) on summary conviction, to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months or to both; or

(b) on indictment, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding five years or to both.

The Applicants argued that section 10(2) of the Regulations created “an offence punishable by imprisonment engages the liberty interest protected by section 7 of the Charter and was geographically overbroad,” citing R v Heywood, [1994] 3 SCR 761 at p 794 ( Canadian Frontline Nurses at para 320).

Justice Mosley found no breach of section 7 by affirming that “the extension of the temporary measures throughout the country including where no disruption had occurred would appear to have been overbroad. However, a party asserting a violation of section 7 must not only show that the impugned law interfered with or deprived them of their life, liberty or security of the person, which laws do all the time, but also that the deprivation in question is not in accordance with the principles of fundamental justice” citing Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (at para 55). Justice Moley added that “in this instance, the deprivation was temporary in nature and subject to judicial review as these proceedings have demonstrated” ( Canadian Frontline Nurses at para 324).

iii.            Section 8

Section 8 of the Charter says:

Everyone has the right to be secure against unreasonable search or seizure.

The Applicants questioned whether the Gic’s Economic Order, which authorized the search, was reasonable (at 326). They claimed that section 2(1) of the Economic Order constituted a seizure within the meaning of section 8 because it allowed financial institutions to freeze the assets of designated persons. They also claimed that section 5 of the Economic Order violated section 8 since it allowed banks to disclose private information of designated persons, to the RCMP or CSIS (at para 328).

Justice Mosley decided that “while the purpose of Charter s 8 is to protect privacy rights and not property, governmental action that results in the content of a financial institution account being unavailable to the owner of the said account would be understood by most members of the public to be a “seizure”.” Justice Mosley added that “the disclosure of information about the bank and credit card accounts of the ‘designated persons’ by the financial institutions to the RCMP constituted a ‘seizure’ of that information by the government” (at para 334).

Justice Mosely concluded that “while the financial institutions were private entities and thus normally beyond the reach of the Charter, the activity in question here can be ascribed to government. The act was truly ‘governmental’ in nature to implement the temporary measures enacted by the GIC and thus brought the banks and other financial services providers within the scope of section 8 to the extent of that activity,” citing Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 (at para 44.) ( Canadian Frontline Nurses and Kristen Nagle et al. at para 340). “The failure to require that some objective standard be satisfied before the accounts were frozen breached s 8” (at para 341).

iv. Section 1

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Justice Mosley agreed that the government had a pressing and substantial objective, and that “there was a reasonable connection between freezing the accounts and the objective, to stop funding the blockades”. However, Justice Mosley found that “the measures were not minimally impairing” (at para 352).

Justice Mosley stated that “minimal impairment requires that the measures affect the rights as little as reasonably possible, they must be ‘carefully tailored’,” citing Frank v Canada (Attorney General), 2019 SCC 1 (at para 66). Justice Mosley added: “The Regulations and Economic Order fail the minimal impairment test for two reasons: 1) they were applied throughout Canada; and 2) there were less impairing alternatives available” ( Canadian Frontline Nurses at para 353).

Justice Mosley found that “the infringements of Charter sections 2(b) and 8 were not minimally impairing, [and] that they were not justified under section 1” (at para 359).

Conclusion

Justice Mosley considered the events that took place in January and February 2022 went beyond legitimate protest and constituted an “unacceptable breakdown of public order.” He acknowledged that he had “considerable sympathy for those in government who were confronted with that situation”. He stated: “Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act” (at para 370).

However, Justice Mosley ruled 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” (at para 372).

Deputy Prime Minister Chrystia Freeland said the federal government will appeal the decision. “I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision”, she stated. “The public safety of Canadians was under threat. Our national security, which includes our national economic security, was under threat,” she added.