Appeals court upholds illegality of Trudeau’s use of Emergencies Act in COVID protest

Canada’s Federal Court of Appeal has dismissed the federal government’s attempt to overturn a landmark ruling that found the use of the Emergencies Act during the 2022 Freedom Convoy protests was unconstitutional.

In a decision released on Friday, the appeal court upheld a January 2024 Federal Court judgment by Justice Richard Mosley, which concluded that the Trudeau government’s invocation of the Emergencies Act was unreasonable and breached the Canadian Charter of Rights and Freedoms. The appeal court agreed that both the emergency declaration and elements of the accompanying regulations violated constitutional protections.

“We are of the opinion that every appeal before this Court should be dismissed,” the court said in its ruling, adding that the Federal Court had correctly determined the declaration of a public order emergency was unreasonable. The judges also found that parts of the emergency regulations and economic measures infringed freedom of expression and protections against unreasonable search and seizure under the Charter.

The court ruled that Cabinet lacked reasonable grounds to believe a threat to national security existed, a legal threshold required to invoke the Act. It further found that existing legal tools were sufficient to manage the protests, meaning the situation did not meet the standard of a national emergency.

In assessing the government’s justification, the court noted that the primary evidence of violence cited by the Attorney General involved a firearms cache discovered in Coutts, Alberta, along with what it described as vague reports of harassment and claims that Ottawa police were overwhelmed. The judges concluded this evidence was insufficient to establish credible grounds for believing there was a threat or use 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,” the decision stated, emphasizing that Parliament’s strict requirements must be closely followed.

The Canadian Constitution Foundation, which intervened in the case against the federal government, welcomed the ruling. Josh Dehaas, a litigator for the organisation, told the Counter Signal that the decision reinforced the importance of constitutional limits on government power and signalled that rights violations would carry consequences.

Dehaas noted that the case could still be appealed to the Supreme Court of Canada, should the current government choose to pursue it. He also pointed to the broader implications of the ruling, given that emergency powers enabled measures such as freezing protesters’ bank accounts during the demonstrations—actions now deemed unconstitutional by the courts.

The decision marks the second time federal courts have ruled the Emergencies Act was unlawfully applied in response to the Freedom Convoy protests.