Freedom Convoy heads to Federal Court, claims use of Emergencies Act was 'unconstitutional'

Justice Centre lawyer, Hatim Kheir, says the POEC report is 'just an investigation' and 'not legally binding' — though it 'influences people with authority.' He adds that if the courts find the invocation unjustified, it would be the winning voice because it is binding in Federal Court.

Freedom Convoy heads to Federal Court, claims use of Emergencies Act was 'unconstitutional'
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Supporters of the Freedom Convoy are mounting a legal challenge of Justin Trudeau's invocation of the Emergencies Act as they head to Federal Court on April 3.

Lawyers for the Canadian Civil Liberties Association (CCLA) and Justice Centre for Constitutional Freedoms (JCCF) filed the challenge one year ago, claiming the use of emergency powers was "unconstitutional."

To date, Cabinet has cleared two hurdles, including the Commons vote to uphold its use of the Emergencies Act. The Public Order Emergency Commission (POEC) by Justice Paul Rouleau also upheld Cabinet's decision.

"Cabinet had reasonable grounds to believe there existed a national emergency arising from threats to the security of Canada that necessitated the taking of special temporary measures," wrote Justice Paul Rouleau in his 2,000-page report.

"I do not come to this conclusion easily as I do not consider the factual basis for it to be overwhelming. Reasonable and informed people could reach a different conclusion than I have arrived at."

According to Blacklock's Reporter, the Court will hear arguments on whether protests outside Parliament represented a threat to the security of Canada, a legal requirement for invoking the Act.

"The federal government handed itself the power to make laws with almost no constraints," said Noa Mendelsohn Aviv, general counsel for CCLA. She added that Canadians should be "concerned about democracy, equality, justice and rights."

According to Section 17(1) of the Emergencies Act, Ottawa can exact "temporary special measures" when it believes a public order emergency exists on "reasonable grounds" — a phrase that Justice Centre lawyer Hatim Kheir said has meaning in law.

"It refers to the probability that something is true," said Kheir, adding the federal government believed the convoy posed "threats to the security of serious as to be a national emergency."

A national emergency constitutes that which could not be effectively dealt with under any law in Canada as an "urgent and critical situation of a temporary nature."

The feds articulated that the convoy impacted residents by shouting pro-western Canadian rhetoric, honking, and the fumes of the convoy trucks.

They also referenced border blockades, the economic impact, and the risk of conflict with counter-protesters to justify declaring the demonstrations a "national emergency."

The "Rouleau Report" claimed that online threats against officials, the risk of violence from lone wolf actors, "concerning" memes from Diagolon, and weapons at the Coutts, Alberta blockade with supposed Diagolon paraphernalia constituted threats to national security.

"There was credible and compelling evidence supporting both a subjective and objectively reasonable belief in the existence of a public order emergency," reads the report.

"I have concluded that the Cabinet was reasonably concerned that the situation it was facing was worsening and at a risk of becoming dangerous and unmanageable," said Rouleau. "The standard of reasonable grounds to believe does not require certainty."

However, Kheir said the report is "just an investigation" and "not legally binding" — though it "influences people with authority."

The Canadian Security Intelligence Service (CSIS) defines threats to national security as espionage or sabotage, foreign-influenced activities, acts of serious violence, or an attempt to overthrow the government.

"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, who hopes the judicial review through April 3-5 goes differently than the POEC report.

Cara Zwibel, counsel for CCLA, confirmed, "That is the job of the courts."

"That is why we initiated and maintained our application for judicial review before the Federal Court. The Court will assess the legality of the declaration and consider the legality and constitutionality of the emergency measures," she said.

Rob Kittredge, another lawyer with the Justice Centre, noted the Court is not bound by contrary opinions that Cabinet's action was lawful. 

"We are optimistic the Federal Court will reach a different conclusion," he said.

MPs who voted for the Emergencies Act had a subdued response to the Commissioner's report. 

"We take no joy in where we are here," said New Democrat MP Matthew Green, whose leader, Jagmeet Singh, accused the convoy of wanting to overthrow the federal government in a "fascist way." 

Trudeau swore the "lawful protests embraced lawlessness," citing several border blockades and the Ottawa occupation. He also said they posed a "volatile, out of control" threat to Canadians owing to "ideologically motivated extremism."

In contrast, Opposition leader Pierre Poilievre characterized the Freedom Convoy as a political protest, not a security threat. 

"A lot of people were so helpless and so desperate they ended up participating in a protest in Ottawa," he said. "This was an emergency that Justin Trudeau created."

"See, he thinks if you're afraid of your neighbour, you'll forget you can't pay your rent," said Poilievre. "If you're afraid of a trucker, you might forget that you're hungry and take your eyes off the guy who caused the problem in the first place."

Maxime Bernier, Leader of the People's Party, dismissed the Commission report as the work of Liberal Party operatives. "Is anyone really surprised that Liberals protect their own?" Bernier said in a statement. "The Commission was not as independent as it should have been. It was Liberals investigating Liberals."

Justice Rouleau previously worked as a partner at Heenan Blaikie & Associates, a now-defunct Montréal firm whose associates included Pierre Trudeau. Rouleau was also a 2002 Liberal appointee to Ontario Superior Court.

"Trudeau handpicked Justice Rouleau to oversee the inquiry," said Bernier. "We can't forget he has a history as a Liberal activist."

On February 17, Rouleau said the Emergencies Act is not a "tool of convenience" but a "tool of last resort" in his report.

Trudeau also admitted that using the Act was a "measure of last resort" but "necessary" to counter the risk of people "losing faith in the rule of law."

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