Government lawyers claim Freedom Convoy remained in 'full swing' after invocation of Emergencies Act

Justice Centre lawyer Hatim Kheir commented that the blockades in Coutts and Windsor cleared on February 13 and 14, 2022, before Prime Minister Justin Trudeau invoked the Emergencies Act.

Government lawyers claim Freedom Convoy remained in 'full swing' after invocation of Emergencies Act
The Canadian Press / Justin Tang
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According to a federal lawyer, the Freedom Convoy remained in full gear when Prime Minister Justin Trudeau and his Cabinet invoked the Emergencies Act last year, justifying the extraordinary measures taken.

On the third and final day of the judicial review, government lawyer John Provart claimed it is "revisionist history" to suggest local law enforcement got the protests and blockades across Canada under control before the invocation of the Emergencies Act.

"The situation was dynamic, continuously unfolding in the days leading up to the invocation," he told the Federal Court. "And on the ground, other measures that had been taken — from injunctions to law enforcement efforts — had been flouted, proven ineffective."

On Wednesday, lawyers for the federal attorney general laid out reasons the court should dismiss arguments from several groups and individuals opposed to the government's use of the emergency law.

Justice Richard Mosley reserved a decision on the matter until later, advising counsel it would "take a while" to arrive at a decision.

Notably, protesters jammed downtown Ottawa, many in large trucks that arrived beginning in late January. Initially touted as a demonstration against COVID mandates and lockdowns, the gathering attracted people with various grievances against Prime Minister Justin Trudeau and his government.

Meanwhile, similar protests across Canada clogged border crossings, including critical routes to the United States at Windsor and Coutts.

Justice Centre lawyer Hatim 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 February 14, 2022, the prime minister used the emergency law 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 highlighted several issues with Ottawa's handling of the convoy, including a need for more cooperation with provincial authorities and law enforcement to quell protests outside Ottawa.

"The use of the military against civilians to quell protests is permissible under the Emergencies Act, which allows the feds to overreach provincial jurisdiction and impose laws without parliamentary debate," he said. However, invoking the National Defence Act is the "second last resort," and the Emergencies Act is the "last resort."

According to Section 275 of the National Defence Act, the Canadian Armed Forces (CAF) can only be deployed domestically "beyond the powers of the civil authorities to suppress," meaning if the convoy protestors proved overwhelming for local law enforcement and RCMP officers, then the use of armed forces would be "appropriate."

On February 17, a reporter asked Trudeau if invoking the Emergencies Act was a failure of federalism. He responded that invoking the Act was "undesirable" but cited Rouleau had concluded the feds met the "high bar" in its implementation.

"Throughout the process, we saw that there were times when the provinces could have done things differently and could have cooperated better with the federal government," said Trudeau, admitting "the feds could have been better partners in federation with the provinces too."

On February 24, Manitoba's Justice Minister Kelvin Goertzen said the province considered the invocation of the Emergencies Act an act of government overreach. He credited Manitoba RCMP and Winnipeg police for dispersing a border blockade in Emerson last February.

Goertzen also said convoy protestors left their encampment outside the Manitoba Legislature on February 23, 2022, after law enforcement warned protesters of arrests and charges if they didn't clear the road.

Rouleau said the Act is not a "tool of convenience" but a "tool of last resort" in the report. Trudeau concurred it was a "measure of last resort" but "necessary" to counter the risk of people "losing faith in the rule of law."

Civil liberties and constitutional defence groups told Mosley on Monday and Tuesday that Ottawa did not meet the legal threshold to use the emergency law. At the same time, the government claims the targeted measures were proportional, time-limited and compliant with the Charter of Rights and Freedoms.

"Without the ability to know how things would have ended up if emergency measures had not been taken, it's not unreasonable to speculate that they would have been far worse," said Provart. "We do know that the convoy movement was still in full swing on February 14, with threats of further blockades across the country, including in Ontario, Quebec and British Columbia."

The government lawyer claimed protesters overwhelmed local law enforcement, who supposedly felt threatened when attempting to ticket them, enforce bylaws or arrest individuals in Ottawa.

"The fact that not every Canadian or every region of the country was equally at risk does not diminish the overall threat posed to the country as a whole and the need for nationwide measures," he said.

The Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) maintain the government did not spell out the proper legal justification for its use of the emergency measures.

Lawyer Janani Shanmuganathan, representing the CCF, cross-examined the federal point on the effectiveness of the measures to quell protests. He suggested the measures were too broad.

"Perhaps the question to ask is, well, did this all get cleared up so quickly because it was effective, or because it chilled so much speech that it chilled legitimate people from doing the things that they would have been allowed to do?" he posed to the Federal Court.

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