Federal judge who ruled against Emergencies Act is a Liberal appointee

Longtime Ottawa resident, Richard Mosley, 74, published his decision on the Freedom Convoy crackdown, concluding it 'does not bear the hallmarks of reasonableness.' Blacklock’s Reporter confirmed the federal judge is a Liberal appointee.

Federal judge who ruled against Emergencies Act is a Liberal appointee
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Blacklock’s Reporter has confirmed the federal judge who ruled against the invocation of the Emergencies Act is a Liberal appointee.

Longtime Ottawa resident, Richard Mosley, 74, published his decision on the Freedom Convoy crackdown Tuesday, concluding the proclamation "does not bear the hallmarks of reasonableness – justification, transparency and intelligibility." 

"In my view, there can be only one reasonable interpretation of EA sections 3 and 17 and paragraph 2(c) of the CSIS Act and the Applicants have established that the legal constraints on the discretion of the GIC to declare a public order emergency were not satisfied," he writes.

The decision upends a judicial inquiry last February 17 that upheld the cabinet action as "reasonable." A Special Joint Committee on the Declaration of Emergency remains stalemated without any final report. 

According to the results of an eight-month investigation by The National Post and the Investigative Journalism Foundation (IJF), approximately 76.3% of judges who donated to political parties favoured the Liberal Party of Canada. It found that out of 1,308 judicial and tribunal appointments since 2016, "nearly one in five of them donated to a political party at least once in the decade leading up to their appointment."

Of those who donated, a scathing three-quarters donated to the Liberals.

According to Elections Canada, Justice Mosley does not appear to have had a record of partisan donations since his appointment to federal court in 2003.

Legal scholars have repeatedly viewed the federal appointment process for judges and tribunal members as ‘fundamentally political’ because Cabinet decides who receives an appointment. 

They said the lack of diversity in the judiciary undermines public confidence in Canada’s courts, owing to concerns of potential political influence. But Justice Mosley appears to have moved against the grain.

On Tuesday, he acknowledged that the testimony of civil rights lawyers changed his mind on the case against the Freedom Convoy, reported Blacklock’s Reporter.

"At the outset of these proceedings," said Justice Mosley, "I had not reached a decision on any of the four applications."

"I was leaning to the view that the decision to invoke the Emergencies Act was reasonable," he wrote. "I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order."

"Had I been at their tables at that time I may have agreed it was necessary to invoke the Act," he writes. The House of Commons in 2022 upheld the use of the Emergencies Act by a 185 to 151 vote. 

But following a judicial review of that decision, Justice Mosley articulated that his "preliminary view of the reasonableness of the decision" no longer held. 

Last April 4, counsel for the Canadian Constitution Foundation (CCF) told Justice Mosley that the federal government lacked the evidence to ascertain threats to national security at the Freedom Convoy.

Sujit Choudhry claimed Prime Minister Justin Trudeau and his Cabinet needed more evidence to invoke the Emergencies Act, as the Canadian Security Intelligence Service (CSIS) did not identify such threats at the protests as defined by the CSIS Act.

"Cabinet's determination that the protests and blockades were threats to the security of Canada was unreasonable because it had insufficient evidence to reach that conclusion," he said.

"Had I not taken the time to carefully deliberate about the evidence and submissions particularly those of the Canadian Civil Liberties Association and Canadian Constitution Foundation … This case may not have turned out the way it has without their involvement," wrote Justice Mosley in his decision.

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