The Federal Court of Appeal says former prime minister Justin Trudeau’s government “did not have reasonable grounds to believe that a national emergency existed” when it invoked the Emergencies Act during the 2022 Freedom Convoy.
The decision upholds a 2024 ruling by the federal courts in which Justice Richard Mosley found that the reasons provided to declare a public order emergency did not satisfy the requirements of the Emergencies Act, and that some temporary measures infringed on Charter rights.
The decision, released on Friday, Jan. 16, says that because this and other requirements to declare a public order emergency were not met, the proclamation was “unreasonable” and beyond the federal government’s legal power and authority.
“First of all, there was no evidence that the lives, health or safety of the people living in Ottawa were endangered (as annoying, stressful and concerning as the protests were),” says the Jan. 16 decision.
The decision affirms a lower court’s ruling and dismisses appeals from the Attorney General of Canada, the Canadian Civil Liberties Association, the Canadian Constitution Foundation and Canadian Frontline Nurses.
What led to invoking the Emergencies Act
The situation began in January of 2022 when reports surfaced that members of an extremist organization were gathering in a convoy headed for the Canadian capital, protesting the federal government’s public health response to the COVID pandemic and new vaccination requirements for cross-border truckers.
This “Freedom Convoy” converged on Ottawa on Jan. 28, 2022.
Within the first few days, there were reports of “high-decibel noise disruptions such as honking and fireworks” and reports of “harassment, assaults and intimidation.” The city ground to a halt due to the masses of parked vehicles.
The Provincial Operations Intelligence Bureau of the Ontario Provincial Police identified the convoy as a “threat to national security” on Feb. 7. 2022.
From Feb. 8 to 10, 2022, a total of 418 vehicles were gathered in Ottawa, nearly a quarter with children inside. Police response became difficult, and there was concern for the children’s safety.
Then-prime minister Trudeau met with an incident response group of cabinet members and senior public servants on Feb. 10, 2022.
The Ontario provincial government declared a province-wide state of emergency on Feb. 11.
Additional cabinet meetings were held Feb. 12 and 13, 2022.
By Feb. 14, 2022, more than 500 vehicles were blocking the streets of Ottawa.
The federal government issued an emergency declaration on Feb. 15, 2022, after the Governor General in Council proclaimed that there were “reasonable grounds” to believe an emergency existed under the Emergencies Act.
This included an economic order that required banks, credit unions, insurance companies and crowdfunding platforms to freeze the assets and accounts of people involved in the Convoy.
It was the first-ever use of the Emergencies Act.
Convoys elsewhere in Canada
It wasn’t just Ottawa dealing with protests. There were also Convoy-linked border blockades at Coutts, Alta. and the Ambassador Bridge in Ontario.
The Alberta blockade began on Jan. 29, 2022. A week later, on Feb. 5, Alberta’s municipal affairs minister sought federal help, and police ultimately set up a checkpoint 18 kilometres away from Coutts.
By Feb. 11, 2022, there were approximately 250 convoy vehicles still at the checkpoint, and about 40 vehicles remaining at the Coutts border crossing.
RCMP arrested 11 people – four who were ultimately charged with conspiracy to commit murder – on Feb. 14, 2022. Officers also seized 14 firearms, a large supply of ammunition, high-capacity magazines and body armour.
At the Ambassador Bridge, the blockade began on Feb. 6, 2022, and ended following an court injunction on Feb. 13, 2022.
There were also simultaneous blockades elsewhere in the country, including in Ontario at the Sarnia Blue Water Bridge and at the Peace Bridge, and in B.C. at the Pacific Highway border crossing in Surrey, which was forced to close after protesters broke through an RCMP blockade.
In Emerson, Man., the premier requested urgent and immediate federal help to clear a border blockade involving 75 vehicles.
The majority of these protests ended when the emergency proclamation was issued.
The appeals court decision notes that when consulted a few hours before the act was invoked, only Ontario, B.C. and Newfoundland and Labrador “appear to have supported use of the Act, on a time-limited basis.”
Ottawa convoy loses momentum, proclamation revoked
From Feb. 15 to 23, the RCMP disclosed information from Ontario police and its own investigations to financial institutions. It resulted in 257 bank accounts being temporarily frozen.
Police arrested 196 people from Feb. 17 to 21, 2022 and 110 people were charged as a result.
The convoy protests began to lose momentum, and protesters started to leave.
During that time, on Feb. 16, 2022, a motion to confirm the emergency proclamation was brought before the House of Commons.
This was adopted on Feb. 21 and tabled in the Senate on Feb. 22, 2022.
By then, the RCMP was reportedly informing financial institutions that they no longer believed people identified as being part of the Convoy were still breaking the rules of the emergency declaration.
The emergency proclamation was revoked on Feb. 23, 2022.
Reasoning from the appeals court
The appeals court decision points out that while the Ottawa convoy was “undoubtedly disruptive and very annoying” to residents of downtown Ottawa, it was also a “non-violent expressive activity” where protesters were attempting to show dissatisfaction with the federal government’s COVID policies.
“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, late-night street parties, fireworks and constant megaphone-amplified cries of ‘freedom.’”
The appeals court also says the regulations didn’t just catch people involved in non-peaceful activities, but also peaceful protesters.
“The Regulations thus criminalized mere attendance at the protest by anyone, whether or not they participated in the violent conduct or otherwise breached the peace,” the decision reads.
“By criminalizing the entire protest, the Regulations limited the expressive rights of protesters who wanted to convey their dissatisfaction with Government policies in a peaceful, non-violent manner.”