Canadian court: Use of Emergencies Act against Freedom Convoy was unconstitutional

UPDATE: A federal judge has ruled that Canadian Prime Minister Justin Trudeau’s use of the Emergencies Act to enact martial law and freeze bank accounts as a tactic to shut down the Freedom Convoy and crack down on protestors and supporters violated the Canadian Charter of Rights and Freedoms.

In early 2022, a massive protest involving thousands of truckers erupted after Trudeau’s government implemented COVID mandates that, among other things, required truckers who drove across the U.S. border to either be vaccinated or quarantine for two weeks, forcing them to take the experimental shot or effectively lose their livelihood.

The protest, known as the Freedom Convoy, was peaceful, though truckers did, at one point, block the U.S.-Canadian border in Windsor, Ontario.

Rather than engaging with the truckers or weakening COVID restrictions, Trudeau decided to invoke the Emergencies Act, a move that gave the federal government unprecedented power. The Emergencies Act allows the federal government to use force, including batons and riot horses, to disperse and prohibit public assembly; compel the services of private businesses to do the government’s bidding; restrict travel; take control of utilities; freeze bank accounts; set up no-go zones; imprison or fine protestors; and take other extraordinary measures.

Although the Emergencies Act lasted less than 48 hours after it was approved by Parliament, the Canadian government continued to target protestors and anyone involved in the Freedom Convoy long after the measure had been lifted.

For example, pastor Artur Pawlowski was arrested for “inciting violence” because he delivered a sermon to truckers in western Canada, a sermon in which he urged them to be peaceful. He spent 78 days in jail following his arrest and prosecutors sought a sentence of 8 to 10 months in prison. He eventually was convicted for “mischief” and was let go for time served.

The Freedom Convoy’s organizers, Tamara Lich and Chris Barber, were arrested for committing mischief, obstructing police, counseling others to commit mischief, and intimidation for their role in the protest, as well as conspiracy. The pair went on trial last fall, but after more than a month of evidence and witnesses, the trial was adjourned without a verdict and is expected to resume in 2024.

Now, though, Federal Court Justice Richard Mosely has determined that the use of the Emergencies Act to crush the protest violated the constitution and the Charter freedoms of protesters.

In order to invoke the Emergencies Act, the country must truly be facing “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency,” Moseley wrote in his decision, released Tuesday:

“I find that the reasons provided for the decision to declare a public order emergency do not satisfy the requirements of the Emergencies Act and that certain of the temporary measures adopted to deal with the protests infringed provisions of the Canadian Charter of Rights and Freedoms.”

Moreover, he continued,

“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration.”

Mosely ruled that the government infringed on the protesters’ right to freedom of expression and that freezing bank accounts was an unreasonable search and seizure and thus violated Charter freedoms also.

Deputy Prime Minister Chrystia Freeland said the government will appeal. It was the right thing to do,” she stated. “It was the necessary thing to do.”

Two of the plaintiffs that had filed suit against the government praised the decision. Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association, stated,

“Emergency is not in the eye of the beholder. Emergency powers are necessary in extreme circumstances, but they are also dangerous to democracy. They should be used sparingly and carefully. They cannot be used even to address a massive and disruptive demonstration if that could have been dealt with through regular policing and laws.”

Joanna Barron, executive director of the Canadian Constitution Foundation, another plaintiff, called the decision a “vindication for many people,” noting that the judge also held that “economic disruption cannot form the basis for the invocation of extraordinary measures such as those contained in the Emergencies Act, which I think would lead to a very disturbing precedent across Canada, for example in the event of labour strikes and disruptions.”

In the 21st century, Canada has dealt with numerous crises and mass protests. Prior to the Freedom Convoy, it experienced a terror attack on its War Memorial and Parliament, as well as nearly 100 arson and desecration attacks on Christian churches and nationwide Black Lives Matter (BLM) protests.

Since the Freedom Convoy, and even before Hamas attacked Israeli citizens on October 7, Canada has been dealing with large and sometimes violent pro-Palestinian demonstrations and blockades, wherein protestors have shut down bridges and major highways; shot off flares; occupied government offices; and attacked and intimidated Jewish businesses and neighborhoods. In November, Trudeau himself had to be escorted to safety from a Vancouver restaurant after it was surrounded by hundreds of screaming protestors.

The Emergencies Act was passed in 1988 to replace the War Measures Act but has only been invoked once — against the Freedom Convoy.

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Original Story

{Published February 16, 2022} Canadian Prime Minister Justin Trudeau’s battle with the Freedom Convoy of truckers reached a breaking point this week as he opted to invoke the Emergencies Act against his own people, granting himself and federal agencies unprecedented power to shut down the peaceful protest.

For several weeks, Canadian truckers and their supporters, a movement known as the Freedom Convoy, have engaged in protests and blockades over COVID restrictions and mandates, including a mandate that requires cross-border truckers to either get vaccinated or quarantine for two weeks upon returning to Canada.

Trudeau, who was elected in 2015, has refused to meet with the protesters, who have asked him to rescind the vaccine mandates and other austere restrictions, as other countries have already done, including the United Kingdom. The government has already tried various tactics, including confiscating the truckers’ fuel and directing GoFundMe to withhold the nearly $10 million raised to support the Freedom Convoy. This past week, an Ontario court ordered the U.S.-based Christian crowdfunding site GiveSendGo to freeze all access to the millions raised on its platform. The site was later hacked and a list of Convoy donors released on the Internet.

A source told Reuters this week that Trudeau was “‘tipped over the edge’ by the almost party atmosphere among protesters in downtown Ottawa at the weekend, with scenes including a hot tub.” 

In response, Trudeau has announced that for the fourth time in its history, Canada’s government will exercise greater authority in the name of national security. However, under the Emergencies Act, passed in 1988 as a replacement to the War Measures Act, the prime minister cannot act alone; Parliament must approve it.

The last time this type of unilateral power was used was in 1970 when Trudeau’s father, Prime Minister Pierre Trudeau, utilized what is effectively martial law to stop terrorists who had kidnapped Deputy Prime Minister Pierre Laporte. The Prime Minister called in tanks and soldiers, and when asked how far he would go, he responded, “Just watch me.”

The use of the War Measures Act was ultimately unsuccessful as the terrorists tragically killed Laporte. Now it seems Pierre Trudeau’s son is following in his father’s footsteps to address what he sees as another national security threat: the nonviolent Freedom Convoy.

In order to invoke the Emergencies Act, one of four situations must occur: a public welfare emergency; a public order emergency; an international emergency; or a war emergency.

It is assumed that Trudeau is opting for the public order justification, which is defined as, “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” Critics charged that there is little evidence there has been any violence or intent to commit violence associated with these lengthy and widespread protests.

Trudeau claimed that the protestors were “spewing hateful rhetoric,” expressing “violence toward fellow citizens,” and were “an insult to memory and truth.” These words differ dramatically from Trudeau’s words in 2020, when he tweeted, “While many of us are working from home, there are others who aren’t able to do that — like the truck drivers who are working day and night to make sure our shelves are stocked. So when you can, please #ThankATrucker for everything they’re doing and help them however you can.”

Trudeau previously referred to the Freedom protesters as a “small fringe minority,” who hold “unacceptable views.” Last year, by contrast, he voiced approval for the Black Lives Matter cause, even attending a protest held in Ottawa and taking a knee in solidarity.

Polling indicates that Canadians are also tired of COVID restrictions. Two-thirds of respondents in a Maru Public Opinion poll said restrictions should be lifted. Tesla CEO Elon Musk responded to the massive protests by tweeting, “It would appear that the so-called ‘fringe minority’ is actually the government.”

If Parliament approves the use of the Emergencies Act, the government will be able to use federal law enforcement to enforce municipal laws, prohibit public assembly in designated areas; regulate the use of property; compel people to perform services, such as requiring tow truck drivers to tow the trucks in the blockade; allow financial institutions to freeze accounts and funding efforts; set up no-go zones; and impose fines of up to $5,000 and sentences of up to five years in prison.

Deputy Prime Minister Chrystia Freeland said of her authority to freeze accounts without a court order, 

“This is about following the money. This is about stopping the financing of these illegal blockades. We are today serving notice. If your truck is being used in these illegal blockades your corporate accounts will be frozen. The insurance on your vehicle will be suspended. Send your semi-trailers home, the Canadian economy needs them to be doing legitimate work, not to be illegally making us all poorer.”

During his acceptance speech after first being elected prime minister in 2015, Trudeau said, “If Canadians are to trust their government, their government needs to trust Canadians.”

Unfortunately, the Canadian government has shown absolutely no trust in its citizens during the COVID crisis.

It has repeatedly trampled liberty, ignored science, shuttered churches, arrested pastors, and allowed the economy to crumble. Yet now when people are standing up for their freedom, Trudeau pretends to care about the economy and the health of small businesses.

This was always the risk of allowing politicians to wield such broad and unquestioned authority during COVID. Now, apparently drunk on that power, the government refuses to allow people to return to normal. Instead of listening to the people, much less trusting them, Trudeau is doubling down and grabbing more power.

The hypocrisy of this situation is almost laughable; peaceful truckers who were regarded as heroes when they did what Trudeau wanted are now smeared as white supremacists and branded as terrorists simply because they oppose his policies. It’s almost laughable, but of course it’s not. If Parliament grants this level of power to Trudeau, the Canadian government will soon bring the full weight of the state down onto its own citizens simply for exercising their right to dissent and practice civil disobedience.

As we know from history, a government armed with unlimited powers and a thirst for retribution has no conscience. We’ve seen this most recently in Hong Kong, where the government have used propaganda, military force, mass arrests, confiscation, and the cooperation of BigTech and the media to smear, demoralize, and crush a massive protest movement for democracy and freedom. Today, Hong Kong, once a beacon of freedom and prosperity, has effectively eliminated all dissent and civil liberties, and its free press no longer exists after state police raided the offices of several independent press outlets, arresting and jailing their reporters and editors, freezing their bank accounts, and seizing their assets.

If members of Parliament wish for Canada to remain a western liberal democracy, they must stand up against Trudeau and on the side of the individual civil liberties granted by God and codified in the Canadian Charter of Rights and Freedoms.

And if they don’t, then those in the U.S. and other freedom-loving countries must take sharp notice of exactly what a government does when it grants too much power to itself and turns on its own people.

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