Explore the podcast
Emergencies Act Case..
Canadian Constitution Foundation
.
.
TRANSCRIPT
Hey guys, Christine here from the Canadian Constitution Foundation. And I'm going to start with the big news,
which is that we won our legal challenge against the government for their use of the Emergencies Act in 2022 against the
Freedom Convoy. Today, the appeal decision in that case was released and
it was unanimous and a total repudiation of the government's position. a massive
victory for civil liberties and for us here at the Canadian Constitution Foundation. We are one of the groups
that brought that lawsuit. Now, the Court of Appeal upheld the lower court
decision, which was also a victory for us, and found basically three issues.
First, the threshold to invoke the Emergencies Act was not met. That means the invocation was illegal. Second, the
right to free expression was unjustifiably restricted by banning assemblies. And third, the right to be
free from an unreasonable search was unjustifiably and unreasonably violated
by the financial measures that required banks to share information with police without a warrant. Now, this decision is
very rich in constitutional law. There are a lot of subiss issues beyond each of these three things that I just
listed. The court really ran with our arguments about the history of the Emergencies Act and how it came to be.
You know, it was carefully created to limit abuse because Trudeau senior abused the War Measures Act and the
Emergencies Act is what replaced it. Now, I won't get into all of the super detailed arguments. There are just so
many. But this is going to be a longer video because I'm going to go through basically the highlights of the
decision. I have linked to the full decision below so you can go and read it yourself. I also hope to have some more
detailed commentary coming out soon as I digest more of this decision. So, please
hit like and subscribe on this channel below or you can sign up for our email updates at the ccf.ca/freedomupdates
so you can get access to all of my additional written commentary. Okay, so now let's go through some of my favorite
parts of this decision. So the first issue is that question about whether the threshold to invoke the emergencies act
was met. Now there are actually a number of thresholds or like you could think of them as sort of trip wires that need to
be triggered in order to use this extraordinary law. And the reason these
thresholds exist is because the war measures act was abused. The emergencies act has extraordinary powers like the
ability to create new criminal law by essentially executive order. So it the
parliament when they created this law wanted to be really careful about how it can be used. They didn't want it to be
abused again. Now, we argued from the Canadian Constitution Foundation. We
argued in court that when looking at the whole scheme of the Emergencies Act, this history of abuse and the context of
abuse really matters. And the court completely adopted our argument about history and context. For example, in
paragraph 176 of the decision, the court wrote, "One must not lose sight of the
history of the act and the context in which it was adopted. Parliament's choice to precisely circumscribe
cabinet's discretion under the emergencies act must be considered against the backdrop of its predecessor
the more measures act. The court then went on to say in paragraph 180, "This
context and the drafting history of the emergencies act along with the enacting exacting thresholds found in it that
must be met before cabinet can issue a proclamation are key factors that must be considered when interpreting the
emergencies act and assessing the reasonleness of the proclamation. So
what are those thresholds? There are several. First, in order to invoke the
act to declare a public order emergency, which is what happened in this case,
cabinet must believe on reasonable grounds that there is a threat to the
security of Canada. Now, this is a term that is defined in the legislation as
having the same meaning as in a different piece of legislation, the CEUS Act. The CEUS Act, CSIS act, is a piece
of legislation that governs Canada's spy agency which deals with issues of national security. And the court said in
paragraph 191 that it is clear from the record that these words have been chosen
carefully. Parliament decided to adopt a well-known definition found in the CESUS
act as it has done in nine other federal statutes. And the court said, you know,
this doesn't mean that CEUS is the one who decides whether or not uh an
emergency should be proclaimed. But they did, the court did say that CEUS's
opinion is important in assessing whether cabinet's decision to proclaim an emergency is reasonable. And that's
the key question in this case. Was cabinet's belief that there was a threat to the security of Canada reasonable?
And we know that CEUS did not think there was a threat to the security of Canada. Now, the government argued it
didn't matter that CEUS had a different perspective uh because cabinet has
different inputs in their decision-making from CEUS. Now, the court absolutely rejected this. First,
the court said were they to give a different interpretation to the expression threats to the security of
Canada in the emergencies act than what is found in the CESUS act because of the different contexts. One would have to
tweak the meaning of the words in all the nine different statutes in which that same expression is found in order
to take into consideration all their different contexts. And then we would end up with 11 different meanings for
the same words. And the court said not only would that in result in absurd consequences but it would offend the
clear intent of parliament to link the use of the same words in a number of statutes to the definition provided in
the ceases act. But worse the court said that the government couldn't even explain how the different context of the
emergencies act changes the meaning of threat to the security of Canada. The court wrote that one can only surmise
that the government is arguing that these words in the emergencies act impose a lower threshold on cabinet when
making use of the extensive powers conferred by the emergencies act than on ceas when pursu when acting pursuant to
the ceas. However, this begs the question, why would threats to the
security of Canada be interpreted less stringent less stringently when applying
the Emergencies Act than when applying the CEUS Act? If anything, the court said that the meaning of threats to the
security of Canada in in the Emergencies Act should be interpreted more strictly
than in the Ceus Act because of the powers that are conferred on cabinet once a public order emergency has been
declared. These are much broader powers uh and much more susceptible to interference with civil liberties than
the powers under the CEUS Act. So if anything the it should be the reverse.
The court wrote to claim that the threshold for declaring a public order emergency which allows cabinet to make
use of a vast array of draconian powers court's words without prior or
authorization could be lower than the threshold for using surveillance. and the more circumcised threat reduction
measures under the cir CESUS act the court said would make little sense in our view. If anything it should be the
reverse. Now this is absolutely devastating to the government. Now another part of the threshold to invoke
the emergencies act and declare a public order emergency is the existence of
serious violence. So the CESUS act defines threats to the security of Canada in relevant part as quote
activities within or relating to Canada directed towards or in support of the threat or use of acts of serious
violence against persons or property for the purposes of achieving political, religious or ideological objectives
within Canada or a foreign state. So what does serious violence mean as part
of a threat to the security of Canada? The government has tried to argue that this serious violence actually includes
economic harm. Uh, for example, rendering critical infrastructure unusable. And they argued that, for
example, blockading roads and borders creates the same danger to Canadian
safety and security as physical damage to that infrastructure and that this amounts to serious violence with respect
to property. The court rejected this entirely, as they ought to have. The court said that the government's
expansive interpretation of serious violence to property is unwarranted and
unreasonable. It could stifle all kinds of protests and demonstrations that blockade pipelines, nuclear plants,
railway lines, and other kinds of infrastructure to advance a cause. There is no indication that kind of economic
disruption described in the government's explanation could be the basis for declaring a public order emergency. And
the court went on to say, as previously mentioned, the adoption of the Emergencies Act was clearly meant to
curb excesses and prevent abuses that occurred under the War Measures Act. The
reference to the definition threats to the security of Canada in the CESUS Act, which itself requires the threat or use
of serious violence, was meant to assange concerns that that pure economic
considerations, especially those of a speculative or tent tentative nature
would not prevail over democratic values and fundamental freedoms of assembly and
expression. Absolute devastation for that argument by the government. Now
there's another part of the threshold to invoke the emergencies act which requires the existence of a national
emergency. This is defined in the emergencies act as a quote urgent and
critical situation of a temporary nature that one seriously endangers the lives
health or safety of Canadians to exceeds the capacity or authority of a province to deal with it and three cannot be
effectively dealt with under any other law of Canada. and the court found that
the government did not have sufficient reason to believe a national emergency existed. At most, the government said
the situation was quote concerning, volatile, and unpredictable. And the government also alluded to a risk of
serious violence and the potential for lonewolf actors um and increased threats
against public officials as well as the presence of ideological extremists at protests. But you know the court found
that as troubled as the government might have been by the existence of these risks, it was not sufficient ground to
ground a reasonable belief to establish that the situation was of of such a
magnitude that it actually endangered the lives, health, and safety of Canadians. There was nothing in the
government's explanation that suggested anyone's health and safety was seriously
at stake. nor is there any evidence in the record to that effect. And indeed,
the court noted that the government didn't even really seriously try to make this case. Now, some of the most
compelling parts of the decision on this topic of serious violence are at
paragraphs 231 and 232. Here the co court court wrote about the threats or
use of serious violence that quote when properly understood as requiring bodily
harm the evidence is quite simply lacking. Aside from the economic disturbance, the only incident of
violence put forward by the attorney general of Canada was the seizure of a cache of firearms and ammunition at
Koots, Alberta, as well as vague reports of harassment, intimidation, and assault, and the fact that the police
forces in Ottawa were overwhelmed. In our view, this is insufficient to
satisfy the compelling and credible information requirement to justify the conclusion that there were reasonable
grounds to believe that there was a threat or use of acts of serious violence. Declaring a public order
emergency is a very serious matter considering the extraordinary powers vested in the executive branch of the
federal government once the act is invoked. And for that reason, the exacting requirements set out by
Parliament must be strictly adhered to. As disturbing and disruptive as the
blockades and the convoy protests in Ottawa could be, the court said they fell well short of a threat to national
security. And this was borne out by CEUS' own threat assessment and the fact
that although an alternative threat assessment was requested uh that the uh it was never provided and
cabinet invoked the act before it was ever completed. When all of these legal
and factual considerations are taken into account, the court said, "We fail to see how cabinet could reasonably
believe that a threat to national security existed at the time of the decision to invoke the act." Wow. I
mean, those paragraphs are just a complete evisceration of the Trudeau
government's position. But that is not even it. That's not all. Another part of
the threshold to invoke the act that I read out on this national emergency standard is this last resort clause. The
emergencies act can only be used to address a situation that cannot be effectively dealt with using existing
law. And the court said, look, the the last resort clause is not a straight
jacket that imposes unrealistic conditions on the government. But in this case, there were other legal tools
available. For example, the protests could have been, and by the way, they ultimately were, dealt with using known
offenses under the criminal code. The court even noted that the RCMP commissioner at the time, Brenda Lucky,
advised cabinet that as of the morning that the act was invoked, the police had not yet exhausted their legal toolkit.
Now, as for coupoots, that border blockade in Alberta where the weapons cash was found, the court noted the same
report indicates that there had been a successful operation overnight, that several arrests at coups had been made,
that weapons and ammunition had been seized, and the government of Alberta had provided a number of tow trucks to
assist in the removal of vehicles, and was working on an injunction to provide assistance to keep the area free from
protests. As troubling and concerning as the situation in Kootz may have been at
the time, the record shows that it was effectively dealt with for all intents
and purposes before the proclamation of an emergency and there was no explanation provided by the government
as to how the regulations enacted in the wake of this clearing of coups
contributed in any way to restoring public order. Now, with respect to the protests in Ottawa specifically, the
court found that the challenges with the Ottawa protests had more to do with
affecting effective policing and the availability of resources as well as leadership issues within the police and
the willingness of police to enforce the law. The court wrote, "This is a far cry
from the requirement that there be no other law of Canada that could effectively be used to deal with a
situation that endangers the lives, health, and safety of Canadians. First of all, there was no evidence of law
that the lives, health, and safety of people living in Ottawa were endangered as annoying and stressful as the
protests were," to use the court's language. But the court went on to say, more importantly, what was lacking to
reestablish public order was not more legal tools beyond beyond what was already available, but more policing
resources. So on this basis, the court concluded that cabinet was unreasonable in concluding that existing legal tools
were were were not sufficient. The court also considered provincial capacity to
address the pro protests. That's another part of um the emergencies act uh
requirements in the in the legislation. So the court wrote that when consulted a
few hours before the act was invoked, most provinces expressed the view that provincial capacity and authority were
not exceeded and that the invocation of the act would have been divisive, unconstructive, and unnecessary. Only
Ontario, British Columbia, and Newfoundland appeared to have supported the use of the emergencies act, and it
was on a time-limited basis. The court found that cabinet had not grappled in any way with the provincial input. The
court wrote that this is particularly troubling in the context of a legislative provision providing that
cabinet may not issue a declaration of public emergency if when the only if
when only one province is affected that province is of the view that it has the capacity and authority to deal with it.
If the input of a single province, admittedly in a context where it is the only one affected, carries so much
weight, one would expect that the opposition of several provinces would at least be seriously considered instead of
being seemingly disregarded, which is what happened here. The court wrote that
basically the government is arguing that the federal government is allowed to
step in and declare a national emergency even if the provinces don't agree with the measures to be taken and are not
prep prepared to even implement them. And this is an interpretation that must
be resisted because it is uh contrary to the actual wording of the emergencies
act and it's inconsistent with the constitutional underpinning of the act. The court wrote that in a federation
provinces should be left to determine for themselves how best to deal with a critical situation especially when it
largely calls for the application of the criminal code by police forces. The
emergency power and with it the suspension of the constitutional division of powers cannot be employed to
override a provincial government's decision not to exercise its powers or to exercise them in a manner that does
not conform with the preference of the federal government. The court wrote to the extent that a situation is not of
such proportions or nature as to exceed the capacity or authority of the provinces they should be left to their
own devices. This is great for provincial autonomy and I'm sure that
the premier of Alberta who intervened in this case, the province intervened in this case on on issues of uh provincial
autonomy will be delighted with this paragraph. Now, that's it for what I'm
going to say about the threshold. It's a lot. Look, I understand some of that
argument is quite technical, but basically what you can take away from this is that the court concluded that
cabinet did not have reasonable grounds to believe that a national emergency existed, taking into account the wording
of the act, the constitutional underpinning of the as well as the
actual record and evidence that was before cabinet at the time the decision was made. And in light of the fact that
the two other requirements to declare a public emergency were not met either, uh
the court found that the proclamation was unreasonable and ultra virus. That
means it's outside the scope of the authority of the government to have done. Okay. Now remember I said there
are two other issues in this case. So we've already dealt with whether or not cabinet's decision to declare a public
order emergency was reasonable. It was not. So the declaration was ultraas. It
was illegal. But what about the actual regulations that government created once the emergency was declared? Remember
there were two types of measures. the assembly prohibitions that banned
gatherings or assemblies uh and the economic measures that did a number of
things like froze bank accounts and compelled banks to share account information with the police without a
warrant. Well, the court found that both of these measures, the assembly
prohibitions and the account sharing requirements were uh violations of the
charter. I'll explain why. First, on the assembly measures, the court found that yes, they applied to people who were
breaching the peace and blockading, but the problem is that they were over broad and they also applied to peaceful
protesters who simply wanted to support the protest by, you know, standing on Parliament Hill carrying a sign. The
court held that although these individuals maybe they would not have been the focus of law enforcement, but
they could nevertheless still have been subject to enforcement actions under the regulations in the same way as someone
who had parked their truck on Wellington Street and behaved in a manner that would reasonably be expected to lead to
a breach of the peace. The law would apply to that person the same way it would apply to someone standing on the
grass silently holding a sign. And this violates the right to freedom of expression guaranteed under section 2B
of the charter. The charter provides the broadest possible for protection for free expression and the right to protest
government action lies at the very core of the guarantee of free expression. Section 2B of the charter further
protects any expressive activity as long as it attempts to convey meaning. And
the purpose of protecting free expression is to ensure that everyone can manifest their thoughts, opinions,
beliefs even if they are unpopular, distasteful, or contrary to the mainstream. So it's not supposed to
matter that the government doesn't agree with the cause of the convoy or even if
we don't agree with the cause of the convoy. It doesn't matter. People are still allowed to express disagreement
even if you don't share that belief. So this prohibited all kinds of activities
well short of violence. So and by criminalizing the entire protest, the
court found that these measures limited the right to expression of peaceful
protesters who wanted to convey their dissatisfaction with government policies but even if they did not intend to
participate in a blockade. The court wrote that while it is true that some protesters did breach the peace by
blockading downtown Ottawa, disturbing the peace with incessant noise from truck horns, train type whistles, and
late night street parties, fireworks, and constant megaphone amplified cries of freedom. While undoubtedly disruptive
and very annoying to residents of downtown Ottawa, which by the way is the point of a protest, uh that this was
nonviolent expressive activity that manifestly attempted to convey protesters dissatisfaction with the
federal government's COVID policies. The court went on to say, "The regulations thus criminalized mere attendance at
protest by anyone, whether or not they participated in violent conduct or otherwise breached the peace. By
criminalizing the entire protests, the regulations limited the expressive rights of protesters who wanted to
convey their dissatisfaction with government policies in a peaceful, nonviolent manner. The court held that
this was not a reasonable limit on the right to free expression, that the restriction on assembly was too broad.
It could, for example, have been limited to only places where protests were most active instead of across the entire
country. or it could have applied to only people actually blockading. Instead, the government created this
sweeping prohibition on assembly and that the court said was unconstitutional. Now, the other issue
was this economic measure. These economic measures created by the government froze bank accounts and also
required financial institutions to disclose private financial records of quote designated persons to police
without a warrant. It was this disclosure issue, this sharing of information with police that really
concerned the court in the appeal. And the court found that this requirement to
share information violated the charter right to be free from an unreasonable
search, which is guaranteed in section 8 of the charter. So a search occurs when
a government entity examines or inspects something belonging to a person who has a reasonable privacy interest in it. And
it's well established that individuals have a reasonable expectation of privacy in their financial information. The
government conceded that the information sharing provisions of the economic measures that required the banks to
share information about account holding account holders with police um they
conceded that that was a search. I mean how could they not agree that that was a search? Uh but the government said it
was a search but it was a reasonable search and the court did not agree. The court wrote that searches or seizures
conducted without a warrant, such as those that were authorized by the economic order under the emergencies
act, these are presumptively unreasonable. And in this instance, the court wrote that financial institutions
were required to disclose individuals confidential personal financial information to the police. And this
financial information potentially included evidence of the commission of offenses which which came with sanctions
with significant fines and even periods of imprisonment. There was no warrant required and no system of prior
authorization by a neutral third party or uh for these searches that were
conducted under the economic order. uh and nor was there any requirement that a designated person be given any advanced
notice that their personal financial information would be shared with the police. The court wrote that while
banks, crowdfunding platforms and other financial institutions are not state actors, they were effectively deputized
by this regulation under the emergencies act as agents of the police. They were
moreover required to turn account holders personal financial information over to the police based on a relatively
lax reasontobelieve standard. The entire system was ad hoc and fraught with
confusion. Financial service providers were required to determine on an ongoing basis whether an account holder was
participating in unlawful activities. They were however at a loss as to how to
go about identifying these designated persons among their millions of account holders. So the the banks and financial
institutions looked to the RCMP for guidance because there was nothing written in the economic order these
regulations that told them how to conclude if someone was a designated person. And according to RCMP meeting
notes, the RCMP just told financial service providers that it could try to
try provide the names of people arrested to help the banks have a better picture of the status of the designated person
on the ground. And beyond this, they were told by the police to leverage
news, rely on public knowledge, including information available over the internet and on social media. So, I just
I like go look on Twitter banks and decide who you think's account should be frozen and whose account information you
should send us. That is crazy. Now, once your account was frozen and your
information shared, there was not even any redress mechanism available that would have allowed an affected
individual to challenge their status as a designated person or the acquisition of their confidential banking
information by the police. The court wrote that the information sharing provisions permitted financial
institutions and the police to intrude on the privacy of individuals based on potentially unfounded subjective beliefs
and these considerations lead inexurably to the conclusion that the information sharing provisions of the economic order
were unreasonable. The court went on to find that these violations could not be justified under section one. That's
pretty common when there's a section 8 violation. And the court wrote that the entire system lacked procedural
safeguards, was not minimally impairing on the right to privacy. But it is worth noting the court did not find that the
freezing of accounts violated section 8, just that the information sharing did. Okay, so this video is already really
long. Uh, I tried to explain it as best I could, as quickly as I could, but to be honest, I'm still digesting this
decision. It's a long decision. It just came out. I spent a long time reading it and trying to pull out the highlights
for you guys. I do hope to do a bit more unpacking in the coming days. So remember, sign up for the newsletter to
get access to any articles that I or my colleagues write about this decision.
And I also want to say a big thank you to all of you. This decision would not be possible without our supporters. The
government spent $2.2 million fighting this case. We are the underdogs and we
won. and we won big. Uh the court pulled directly from our argument and this is
now precedent case law in a generational civil liberties case. This is a huge
victory for freedom and it would not have been possible without you. Now I know the questions I always get. So let
me address a few of the ones that I expect uh really quickly. What does this mean long term? People always ask, okay,
it's a court decision, but what does it actually mean? Well, it means that this is a binding precedent that can prevent
the government from abusing this law in the future. Now, the government has a clear articulation of what the
emergencies act means. It's never been used before. And now, this decision will constrain how a future government might
use it. We need a good freedomoriented interpretation of this law to prevent it
from being abused. And that's what we got with this decision today. Another question I get all the time is can
people sue as a result of this decision. Well, they already are. There are lawsuits that have been brought
privately against the government by people who were impacted by, for example, the freezing of bank accounts.
Now, we at the CCF are not involved in those cases. We don't represent individuals who are suing privately for
money damages. Those people get their own lawyers who specialize in that. But this decision should certainly help
their cases. uh just as the lower court decision was helping their cases, it's now been upheld and it should help
further uh buttress their claims. The last question I I know I'm going to get
is is the government going to appeal? Is the federal government going to take this to the Supreme Court? Now, I don't
know the answer to that yet. They haven't said anything yet. I expect Carney is getting advice from the
department to appeal. This is a humiliating loss, but it's also a very
political case. And there, you know, there is a chance that the government will want to wash their hands of
something they see as maybe Justin Trudeau's mess. But that said, when the freedom convoy was happening, Mark
Carney famously wrote an op-ed for the Globe and Mail calling the protest sedition. You can look it up. It's on
the Globe website right now. Uh, so his fingerprints are on this, too. If the
government does appeal to the Supreme Court, the Supreme Court would first need to grant them leave. It doesn't
necessarily automatically get to go to the Supreme Court. I expect they would get leave. Uh and the fact but the fact
that we have two wins now, it does help us. It gives us a better position, but you know, we don't have any guarantees
of what will happen. If you want to donate to help us fight any appeal that might happen and defend this victory for
freedom, you can make a taxdeductible charitable donation to the CCF at the ccf.ca/donate.
Okay, now I'm going to go open a bottle of champagne and have a well-deserved celebration. I hope that you celebrate,
too. This is huge and everyone who supports this J channel is a part of that victory. So, thank you so much and
let's keep fighting for freedom in Canada
No comments:
Post a Comment