The Federal Court of Appeal on Friday ruled that the federal government’s use of the Emergencies Act to quell the 2022 “Freedom Convoy” protests was unreasonable.
The ruling upheld a 2024 decision by the Federal Court that also concluded there was “no national emergency justifying the invocation of the Emergencies Act” in response to the weeks-long blockade in downtown Ottawa.
The national movement also involved truck blockades at key border crossings to the United States, which prompted then-prime minister Justin Trudeau to declare a national emergency “arising from threats to Canada’s security.”
“The Federal Court correctly determined that the declaration of a public order emergency was unreasonable,” the appeal court ruling said.
The appeal court also agreed with the lower court that invoking the emergency powers led to the infringement of constitutional rights.
Both rulings sided with the Canadian Civil Liberties Association and the Canadian Constitution Foundation, which brought the case against the government on free speech and assembly grounds.
For about three weeks in January and February 2022, downtown Ottawa was filled with protesters, including many in large trucks that blocked streets around Parliament Hill.
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Trucks also jammed important cross-border trade routes at the Ambassador Bridge in Windsor, Ont., as well as in Coutts, Alta.
While many people demonstrated against COVID-19 health restrictions, including vaccine requirements for truck drivers and other groups, the gathering attracted some with a variety of grievances against Trudeau and his government.
On Feb. 14, 2022, the government invoked the Emergencies Act, which allowed for temporary measures, including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets, and a ban on support for participants.
It was the first time the law had been used since it replaced the War Measures Act in 1988.
The Public Order Emergency Commission, which carried out a mandatory review after the use of the act, concluded in early 2023 that the federal government had met the very high legal standard for using the law.
At the public inquiry and in court proceedings, the CCLA and several other groups and individuals argued that Ottawa lacked sound statutory grounds to usher in the emergency measures.
The government contended the steps taken to deal with the turmoil were targeted, proportional and time-limited, and complied with the Charter of Rights and Freedoms.
Public sector groups and nurses unions in Ottawa also pointed to the disturbances caused by blaring horns from big rigs, diesel fumes, makeshift encampments and even a hot tub and bouncy castle set up in the protest zone near Parliament Hill.
The influx of people, including some with roots in the far-right movement, prompted many businesses to temporarily shut down and aggravated residents with noise, pollution and harassing behaviour.
Richard Mosley, the judge who heard the case in Federal Court, concluded the federal decision to issue the emergency proclamation did not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not supported in relation to the relevant factual and legal constraints.
The federal government appealed the decision.
Lawyer Michael Feder, representing the government, told the Federal Court of Appeal last February it was unfair of the judge to fault federal decision-making using “20/20 hindsight.”
That hindsight came during “the peaceful de-escalation that occurred in light of the emergency measures now being impugned,” he said.
“Who, outside of a courtroom, would seriously suggest the situation was going to get better in the absence of emergency measures?”
Feder said the government concluded it had reasonable grounds to believe the statutory preconditions for invoking the emergency measures were met.
The government’s conclusion “doesn’t have to be perfect,” he said. “It just has to be reasonable.”
—With files from the Canadian Press
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