OTTAWA: The Canadian Constitution Foundation (CCF) has filed materials in the appeal of the Federal Court decision that declared that the Trudeau government’s unprecedented use of the Emergencies Act in response to the Freedom Convoy protests in February 2022 was unlawful.
In a decision released on January 23, 2024, Justice Mosley sided with the Canadian Constitution Foundation and other public interest litigants when he found that the Trudeau government’s use of the Emergencies Act was illegal and unconstitutional. Justice Mosley found that there was no national emergency and no threat to the security of Canada, which are legal requirements built into the Act to prevent it from being abused. He also found that the orders freezing bank accounts violated the constitutional right to be secure against unreasonable searches and seizures, and that the restrictions on protests violated the right to freedom of expression. The decision was a blow to the Trudeau government, which announced their intention to appeal within minutes of the release of the nearly 200-page decision.
On October 4, 2024, the CCF filed their materials in that appeal, which you can read here.
CCF Executive Director Joanna Baron noted that the Trudeau government hired expensive counsel to fight the appeal after Crown lawyers lost the case in Federal Court despite spending $2.2 million of taxpayer funds.
“With these new private sector lawyers, the appeal could cost taxpayers as much or more,” Baron said. “The CCF is a registered charity supported by generous voluntary donations, and we have fundraised extensively in order to pay for this case and the appeal,” she added. “Our costs are a fraction of the government’s, but we are confident that Justice Mosley’s decision was the correct one and are proud to be represented by renowned constitutional litigators Sujit Choudhry and Janani Shanmuganathan.”
One focus of the CCF’s appeal materials is the fact that the definition of “threats to the security of Canada”, which the Emergencies Act makes clear means the same thing that it means under the CSIS Act, was not met. CSIS Director David Vigneault had informed the government that the definition was not met, and Cabinet failed to wait for an alternative assessment of the facts before invoking the Act. Another focus of the appeal is the level of deference owed to Cabinet in their decision to invoke the Act. The government is claiming that Cabinet essentially has unfettered discretion. This goes against the actual text of the Emergencies Act as well as the history and context of the legislation, which was enacted to ensure there were proper guardrails on the legislation so it could not be abused like its predecessor, the War Measures Act.
A date for a hearing of the appeal will be set in November 2024, with a hearing likely in early 2025.
CCF Litigation Director Christine Van Geyn called the Trudeau government’s unprecedented use of the act, “the most severe example of overreach and violations of civil liberties we have seen in a generation.”
“This case will set one of the most important precedents in Canada and internationally on the use of emergency legislation, and it has the potential to restrain it from being abused in the future,” she added “The Emergencies Act contains a last resort clause: it can only be used when there is a national emergency and there are no other laws at the federal, provincial and/or municipal levels which can address the situation. Parliament cannot use the Emergencies Act as a tool of convenience, as it did in this case. We look forward to the appeal hearing.”
Members of the public interested in supporting the CCF’s legal challenge in the Federal Court of Appeal to the federal government’s use of the Emergencies Act can make a tax deductible charitable donation on the CCF’s website here: https://theccf.ca/donate/
Joanna Baron
Executive Director
Canadian Constitution Foundation
1-888-695-9105 x. 101
[email protected]
Christine Van Geyn
Litigation Director
Canadian Constitution Foundation
1-888-695-9105 x. 103
[email protected]