Civil rights lawyers have put Ottawa on notice against misusing the Emergencies Act to quash peaceful protests moving forward.
"I want to be crystal clear," said Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association (CCLA). "We will fight them tooth and nail at the Federal Court of Appeal. We will defend our historic victory for rights."
After Federal Justice Richard Mosley ruled against the "unconstitutional" use of emergency powers against the Freedom Convoy, the Trudeau Liberals immediately announced it would appeal the decision.
"We are aware of the court decision," Deputy Prime Minister Chrystia Freeland told reporters. "We … will be appealing," she said.
Mendelsohn Aviv claims the appeal bears "significant implications for the future."
"All future governments need to know even in times of crisis," she said, "especially perhaps in times of crisis when emotions are running high."
"No government is above the law," continued the executive director. "Even in times of crisis basic rights and freedoms must be upheld."
On Tuesday, Justice Mosley acknowledged that the testimony of civil rights lawyers changed his mind on the case against the Freedom Convoy.
"I was leaning to the view that the decision to invoke the Emergencies Act was reasonable," he wrote.
Lawyers with the CCLA and Canadian Constitution Foundation (CCF) successfully argued in Federal Court the Emergencies Act usurped their clients' freedom of expression and exposed them to unreasonable search and seizure, reported Blacklock’s Reporter.
"The Emergencies Act is an Act of last resort," contends Ewa Krajewska, counsel with the CCLA. "It should not be invoked for convenience or expediency."
On February 14, 2022, Freeland invoked the Emergencies Act to dispel protests in Ottawa and from across the country. The invocation of the act permitted law enforcement to detain protesters, freeze their bank accounts, confiscate assets and dismantle peaceful blockades in the ensuing weeks.
She called it an "easy decision" to make, calling the Freedom Convoy "an incredibly serious threat."
However, Krajewska rebuked the claim, stipulating the protests did not rise to the level of a "serious threat to Canada’s national security."
The federal cabinet and RCMP "have the necessary powers to deal with protests under existing laws," she said. "They do not need to invoke the Emergencies Act."
Last April 4, CCF counsel told Justice Mosley that Ottawa 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.
"In my view," he writes, "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."
The decision upends a judicial inquiry last February 17 that upheld the cabinet action as "reasonable." The House of Commons in 2022 upheld the use of the Emergencies Act by a 185 to 151 vote.
A Special Joint Committee on the Declaration of Emergency remains stalemated without any final report.