by Mike O’Brien
We are fast approaching that special day midway through February, when we are called to reflect upon the joys and sorrows of sharing our lives with certain special others. An occasion for celebration by some, and for lamentation by others. I am, of course, referring to the second anniversary of Justin Trudeau’s invocation of the Emergencies Act to quell the “Freedom Convoy” that had seized downtown Ottawa as well as Canada’s three most important border crossings.
Last year’s anniversary was marked by the release of the Rouleau report, summarizing the results of a public inquiry into the Act’s use, such inquiry being automatically triggered whenever the Act in invoked. That report, finding that the government was justified in its decision and correct in its assessment of the situation to be addressed, angered people who already disagreed with the decision and pleased people who already agreed with it. A new review of the government’s invocation of the Act was released this January, finding that the government’s decision was not reasonable and violated the rights of people affected by the measures enacted pursuant to the declaration of emergency. This new finding (the Mosley decision, or more formally “2024 FC 42”), conversely angered people who already agreed with the decision and pleased people who already disagreed with it. There are two reasons why it elicited such reactions (neither being “people read it”). Firstly, the fact that it exists at all suggests that the wisdom of using the Emergencies Act, and the measures enabled thereby, was still an open question. And secondly, the fact that it (partially) faulted the government suggests that the convoy was not as dangerous or noxious as its detractors claimed it to be. But these suggestions are misleading.
Unlike the public inquiry and joint legislative committee that had already investigated the use of the Act, this new review was a legal decision by a federal court judge. Since the convoy crisis was the first use of the Emergency Act since its adoption, this court decision is the first judicial review of its use. Whatever one may think of the government’s wisdom and effectiveness in employing the legislation, it is quite useful for a constitutional democracy (technically a constitutional monarchy, but let’s not get distracted) to clarify legal details after the fact. This is not to impugn the authors of the law or those who wield it; unforeseen circumstances may create problems for even the most judicious application of the most sagely crafted laws. In the case of the Emergencies Act, it is a creation of the mid-80’s and that era’s security concerns, replacing the War Measures Act following that law’s contentious use during the October Crisis of 1970 (during which multiple incidents of terrorism shook Quebec).
The details of the case are as follows: five citizens sought relief for what they considered breaches of their rights under Canada’s Charter of Rights and Freedoms and our Bill of Rights (but not the People’s Voices and Choices Act, as this piece of legislation only exists in the mind of Ricky from Trailer Park Boys). Two civil society groups, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, joined and were granted standing on public interest grounds. The provincial government of Alberta was also granted intervenor status. One citizen, claiming to represent an anti-vaccine nurses’ group, was denied standing and her nurses’ group was determined to represent nobody but herself. Her main claim, that she was exposed to liabilities of future prosecution because the convoy activities in which she had taken part were declared prohibited, was rejected as vague and hypothetical. Two other citizens were denied standing because they did not suffer any particular infringement, having not been arrested or had their financial assets seized. That left two remaining citizens who had had their financial accounts temporarily frozen following orders from the Royal Canadian Mounted Police to various financial institutions. As Justice Mosley hints throughout the decision, these two applicants were not better versed in Canadian law than their disqualified comrades, and the assistance of the CCLA and CCF counsel was essential in shaping their case into something the court could work with.
After the question of standing, the question of mootness had to be resolved. The measures giving rise to the applicants’ complaints had long since been revoked, and so it could be asked what additional relief is needed. The applicants argued that if such reasoning was followed, emergency measures might never to subjected to judicial review because the measures would be revoked by the time a legal case was presented. The judge granted this, and also accepted that an “adversarial context” still existed between the applicants and the government, in which legal questions were still live and pertinent.
With the questions of “should the applicants be here?” and “should anyone be here?” answered in the affirmative, the main task remaining was to determine if the government acted reasonably in its invocation of the Act. (There were also decisions on the constitutionality of specific measures implemented under the Act, but I will omit these for space. The short version is that the RCMP was sloppy, which is a recurring problem and the main reason why CSIS exists). Reasonableness in this context requires justification, transparency and intelligibility in the reasons given for a decision, and as such the determination turns not on whether the decision could be justified by the best possible case, but rather on whether it is justified by the case that is in fact given. So a determination that the government’s decision was unreasonable does not necessarily mean that they acted incorrectly; it may merely mean that they failed to articulate a sufficiently reasonable case for their correct decision.
The government had to meet three main criteria to justify the use of the Act. First, that there exists a threat to national security, which is defined by reference to the definition used in the CSIS Act (being the legislation defining the powers and responsibilities of Canada’s equivalent of MI5 or the CIA). Second, that this threat exceeds the authority or capability of provincial governments to address it (and is thus a “national” emergency, although Quebec would likely quibble about the meaning of “national”, and then leave in a huff, and then later complain that the discussion continued without them). And third, that this situation cannot be handled with any other existing law. Each of these points is messy. The CSIS Act lays out four situations constituting a “threat to national security”, of which Justice Mosley selects only the third as relevant to this case. It reads “activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state”. Mosley decides that this definition was not met by the situation obtaining at the time of the Act’s invocation. Like many observers, I find this strange, given that the blockades’ forcible occupation of public infrastructure seemed to constitute violence against property, and the Ottawa occupiers’ constant blowing of deafening horns could easily meet the standard of physical violence when continued for weeks, as could the emission of diesel exhaust in densely populated areas.
Even if we grant Mosley’s decision that this definition was not met, I would argue that he erred in excluding the three other definitions of “national security threat”. The first is “espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage”. The second is “foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person”. The fourth is “activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada”. The occupation of Ottawa, and especially the blockading of Canada’s three most economically important border crossings, would seem to qualify as sabotage detrimental to the interests of Canada. As would the deliberate flooding of Ottawa’s 911 emergency phone system to hinder the work of first responders. The fact that a significant amount of funds (over 50%, in the case of the crowdfunding platform GiveSendGo) came from the US, and that the America’s corporate right-wing media-sphere propagated falsehoods and calls to action in support of the convoy, would seem to qualify as foreign influenced, deceptive activities detrimental to the interests of Canada. (Note that many of the malicious calls flooding Ottawa’s 911 system were also made by persons from outside Canada). And lastly, the convoy organizers’ stated objective of forcibly overthrowing the constitutionally established system of government in Canada would seem to qualify as, well, that. In Justice Rouleau’s report last year, he recommended ending the reliance on the CSIS Act definitions altogether. Justice Mosley notes that those definitions were intended to rein in the powers of an intelligence agency and not to guide a government navigating a national emergency. But he is bound to decide on what the law says, not what it should say.
Still, there remains the requirement that the threat exceed the provinces’ authority and capacity to address it. In Alberta, the Coutts border crossing blockade was managed by the RCMP under existing provincial laws, as were the arrests and seizures relating to the weapons cache discovered there. (Maybe all the other seditious Albertans were honking horns in Ottawa). In Quebec the provincial police nipped local convoy movements in the bud, making it clear than the disruptions experienced in Ottawa and at Ontario’s key border crossings would not be tolerated. In Ontario, the question of whether the provincial government could handle the situation was moot, because it did not try to handle the situation. The Ottawa police allowed the occupation to grow to unmanageable scale, and the Premier of Ontario failed to direct the provincial police to intervene in a timely manner. Every review of the events leading to the Emergency Act’s use is scathing in it criticism of the Ontario premier’s inaction. The Act simply did not envision that a Premier would choose to allow such a situation to continue and worsen, and as such there is no provision dealing with such malingerers. (Ontarians punished Premier Doug Ford by re-electing him in June 2022 with an even larger majority. Or, more accurately, a plurality of the 43% of Ontario’s eligible voters who bothered showing up did.)
While the actual measures implemented pursuant to the Act were quite locally restricted (except for financial measures like asset freezes and compulsion of disclosures), the scope of the emergency was Canada-wide in anticipation of what Justice Mosley called a “whack-a-mole” situation, where disruptive activities are displaced from a prohibited area only to take hold somewhere else. It might be determined in the years to come that the requirement to exhaust provincial powers, and all ordinary federal legal tools, before invoking the Emergencies Act may be overly burdensome in the context of time-sensitive and developing emergencies. Mosley himself noted this, writing “It may be considered unrealistic to expect the Federal Government to wait when the country is “threatened by serious and dangerous situations”, as the Respondent characterizes the events of January and February 2022, 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. However, that is what the Emergencies Act appears to require.”
And there is the rub; the legal standard set for the government a generation ago by legislators may be flawed in ways not apparent until the legislation is needed. Faced with a choice between (1) acting effectively to address a pressing threat to national interests, by appeal to legitimate legal mechanisms such as the Emergencies Act, or (2) addressing the threat by more ad hoc means and appeals to more general prerogatives of governing, or (3) failing to address the threat for want of legitimate means to do so, the government did well to choose (1). The government’s most important responsibility is to govern, after all. It has lawyers to deal with mistakes in its reason-giving.
One curious lacuna in this debate is the role of Covid in the calculus of public interest. By the time the convoy started rolling towards Ottawa, the virus had already killed 30,000 Canadians by official counts (and no doubt thousands more by various routes of excess mortality). It has killed (at least) another 27,000 since then. The fact that the convoy movement sought to eliminate all public health measures related to Covid does not seem to factor into the government’s stated reasons, nor subsequent review of those decisions. The only mention of Covid in the government’s invocation of the Emergencies Act, and in the text of Justice Mosley’s decision, is in reference to Canada’s economic vulnerability following two years of Covid-related disruptions. Perhaps this was a strategic decision, not wanting to mix evidently contentious questions of medicine and public health with separately contentious questions of public order. Given the monstrous death toll under US Republicans’ handling of Covid, it seems fair to construe MAGA-adjacent forces in Canada seeking to influence public health policy as a threat to life and safety. (Again, such matters are largely provincial, but the federal government still has many levers of influence at its disposal).
The government has indicated that it plans to appeal Mosley’s decision, likely along some of the lines I have highlighted, and others that I lack the legal competence to recognize. It may yet be vindicated in its stated reasons for invoking the Emergencies Act, but still move to amend the Act to better prepare for the next time it is needed. Mosley himself muses that it may be needed again to deal with a similar situation, or worse, given the rise of extremist anti-government elements exploiting the reach of social media. I fear that the reasons given by the government in defending its use of the Act are insufficiently attentive to the pervasive, amorphous and stochastic nature of far-right terrorism, although they might simply be keeping their intelligence cards close to their vest, or steering away from too-specific justifications in order to maintain broad discretion for future decisions.
I hope to have clarified the significance of the Mosley decision somewhat, given its peculiar role alongside other (non-judicial) findings. My reason for attempting this is mostly to push back against the attempts in Canadian and American right-wing media to vilify and delegitimize the Trudeau government. A headline of “Judge rules use of Emergencies Act unjustified” is too easily spun into “Tyrant Trudeau illegally erases freedoms” without appropriate context. When Canadian MAGA-ites engage in such anti-incumbent hyperbole, it is generally to bolster their electoral hopes. But when American MAGA-ites push anti-Trudeau vitriol, it is in service to a more dangerous agenda. The delegitimization of Canada’s government is a preamble to attacks on our political and territorial sovereignty, and we should not expect our long and mutually respectful relationship with the United States to count for anything under a Republican regime. American energy interests cannot abide a progressive, global-warming-acknowledging leader in charge of a country with as much petroleum as we have (nor can Albertan energy interests). As if the threat beyond our southern border weren’t trouble enough, many Canadians are now so ignorant of the political differences between our countries, and so immersed in the worst of American political discourse, that they see the proper functioning of this country as some kind of aberration in need of correction, to bring us in line with the ordained perfection of the American Way. That is Canada’s long emergency, manifesting more acutely every day.