Feds lacked 'sufficient evidence' to invoke Emergencies Act, say civil liberty groups

With the Federal Court set to rule on last year's invocation of the Emergencies Act, national civil liberties groups argued that 'nebulous or strained claims' about economic instability or general unrest did not justify Ottawa's use of the Act.

  • By Alex Dhaliwal
  • April 05, 2023
  • News Analysis
Feds lacked 'sufficient evidence' to invoke Emergencies Act, say civil liberty groups
The Canadian Press / Justin Tang
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The three-day hearing commenced Monday with the federal government arguing why the matter should not be in court, as the "Rouleau Report" found the government met the high threshold for using the law to quell protests throughout Canada.

On February 24, Justice Centre lawyer Hatim Kheir said the report is "just an investigation" and "is not legally binding." But he said it "influences people with authority."

"If the courts find the invocation unjustified, it would be the winning voice because it is binding in Federal Court. If future governments invoke the Act, they must be aware of the precedent set," he said. Kheir hopes the judicial review goes differently than the POEC report.

In early February 2022, protesters filled downtown Ottawa, many in large trucks, to demonstrate against COVID mandates and the government's invasion of Charter Rights.

Blaring rig horns, diesel fumes, makeshift encampments, and even a hot tub and bouncy castle filled the immediate area surrounding Parliament.

Soon after, public frustration boiled over from relative inaction by the Ottawa police. 

On February 14, 2022, Prime Minister Justin Trudeau invoked the Emergencies Act to permit temporary measures, including regulation and prohibition of public assemblies, the designation of safe zones, direction to banks to freeze assets and a ban on support for participants.

This is the first time in history that this Act, which replaced the War Measures Act in 1988, had been invoked by Parliament.

In a letter to premiers on February 15, 2022, Trudeau said the federal government believed the Freedom Convoy reached a point "where there is a national emergency arising from threats to Canada's security."

Kheir commented that the blockades in Coutts and Windsor cleared on February 13 and 14, 2022, before Trudeau invoked the Emergencies Act, as most voluntarily left upon learning weapons had been present.

On Tuesday, counsel for the Canadian Constitution Foundation (CCF) told a federal judge the government lacked the evidence to ascertain threats to national security at the Freedom Convoy protests and barricades last year.

Sujit Choudhry claimed Trudeau and his Cabinet needed more evidence to invoke the Emergencies 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," said Choudhry during the second day of the Federal Court review into the findings of the "Rouleau Report."

Justice Richard Mosley heard concerns from several groups and individuals about the government's use of the Act to quell blockades in Windsor and Coutts and protests across Canada by supporters of the Freedom Convoy.

The court of law is now weighing legal arguments about the historic decision.

Choudhry said Tuesday the government invoked the law even though the Canadian Security Intelligence Service (CSIS) assessed the protests did not threaten Canada's security as defined by the CSIS Act.

Kheir highlighted the discrepancies between how Ottawa perceived a national security threat and CSIS Act.

According to the federal spy agency, threats to national security constituted espionage or sabotage, foreign-influenced activities, acts of serious violence, or an attempt to overthrow the government.

"Prime Minister Justin Trudeau invoked the Emergencies Act on the alleged threat or use of acts of violence [to achieve] a political, religious, or ideological objective," said Kheir.

Trudeau claimed that "lawful protests embraced lawlessness," citing several border blockades and the Ottawa occupation.

"Under the CSIS Act, the federal government did not want an investigation into the invocation of the Emergencies Act as CSIS claimed they did not meet the threshold," said Kheir.

Ultimately, Cabinet viewed it differently than CSIS, but he added the Act has a legal precedent, whereas the Emergencies Act does not.

In a written submission to the court, federal lawyers said the government had "reasonable grounds" to use the Emergencies Act "based on all of the inputs available at the time." 

"It was equally reasonable for CSIS to reach a different conclusion for its mandate," they said.

Trudeau had no legal obligation to abide by the spy agency's assessment of the threat under its legislation. The federal submission said he also had no obligation to wait for an additional evaluation requested by national security adviser Jody Thomas before noon on February 14.

It also stressed that Thomas' assessment is not an alternative document but a collation of existing information, including some points, made verbally but not written down.

The federal filing says that given the "urgency of the situation, however, nothing was unreasonable" in the government deciding to act without waiting for this other written compilation.

Choudhry said the pending threat assessment "wasn't just nice to have, but was legally required," given the CSIS assessment contradicting Cabinet's conclusion.

"Is there a particular magic to the threat assessment?" asked Mosley.

The judge said the government had other sources of information, adding another risk assessment "would have been perhaps sensible," but he questioned whether the law required it.

"Your honour, we think the law requires it," replied Choudhry.

On Monday, the Canadian Civil Liberties Association (CCLA) said the government did not meet the legal justification to use emergency measures amid predominantly peaceful protestors.

The association argued the protests did not, as the Emergencies Act demands, create a "threat to the security of Canada" within the meaning of the CSIS Act. They also contend there was no "national emergency" defined by the law.

"The Act does not permit the government to proclaim an emergency based on nebulous or strained claims about economic instability and international trade, a general sense of unrest, or foreign donations to a cause," said their submission.

"Even the presence of a small number of dangerous individuals in specific locations, while a proper priority for law enforcement, could not justify a nationwide emergency."

"The Emergencies Act has no precedent on interpreting terms, but the advantage of incorporating the CSIS Act is that it has a precedent," added Kheir, who supported the "narrow" CSIS definition.

He also criticized Ottawa for not justifying the Act from the onset.

Furthermore, the association said the Emergency Measures Regulations and the Emergency Economic Measures Order ushered in by the proclamation fail scrutiny under various provisions of the Charter.

"The question of whether the legal threshold for invoking the Emergencies Act was met is important not just for evaluating a historical event, but for how it might guide governments in the future," said Cara Zwibel, director of the association's fundamental freedoms program.

"Ultimately, it is a question that the courts can only answer."

However, on reasonable grounds, federal officials believed that a public order emergency existed and necessitated taking temporary special measures.

The attorney general's submission said the applicants asked the court "to use hindsight" to determine the necessity of the Act's application last year.

"However, that is not required in these judicial reviews."

The government said the Federal Court shouldn't "step into the shoes" of the decision-makers but determine the reasonability of the decision with the appropriate context.

The court is also hearing from counsel for others who filed actions contesting the use of the emergency measures, including the Canadian Frontline Nurses and Kristen Nagle and individuals Jeremiah Jost, Edward Cornell, Vincent Gircys and Harold Ristau.

The three-day hearing will conclude on Wednesday with additional arguments from federal lawyers and statements in reply.

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