Federal government loses Emergencies Act appeal, court says use during convoy protest was unreasonable

The Liberal government unreasonably invoked the Emergencies Act to clear the convoy protests that gridlocked the capital city and border points nearly four years ago, the Federal Court of Appeal ruled on Friday.

The court dismissed the government’s appeal of a 2024 ruling which deemed former prime minister Justin Trudeau’s decision to use the legislation unlawful and infringed on protesters’ Charter rights.

“As disturbing and disruptive the blockades and the convoy protests in Ottawa could be, they fell well short of a threat to national security,” wrote the three judges on the appeal court.

The Federal Court was initially asked to review the government’s deeply divisive proclamation of a public order emergency by the Canadian Civil Liberties Association, the Canadian Constitution Foundation and other groups.

In that 2024 decision, Federal Court Justice Richard Mosley, since retired, said the government’s decision lacked justification, transparency and intelligibility.

The government appealed. During a hearing last February, its lawyers argued the court downplayed violence with “hindsight bias on full display.” The government has long argued the protests posed a security threat and the measures it took under the Emergencies Act were targeted, proportional and temporary. 

But the appeal court’s decision agreed with Mosely’s finding that cabinet did not have reasonable grounds to believe that a threat to national security existed and fell short of the legal threshold needed to invoke the act.

“There was no evidence that the lives, health or safety of the people living in Ottawa were endangered (as annoying, stressful and concerning as the protests were),” reads the court’s decision.

How we got here

What began as a protest largely against vaccine requirements attracted thousands of people, and many in trucks, to the capital who had a slew of grievances aimed at Trudeau and his government for weeks.

In the face of blaring horns, big-rig blockades and makeshift encampments, some Ottawa businesses temporarily closed, while many residents complained of noise pollution and diesel fumes.

A protester wearing a Canadian flag takes a photo of children playing on Wellington Street across from Parliament’s West Block during the convoy protest. (Justin Tang/The Canadian Press)

Protesters, some of whom had brought bouncy castles and an inflatable hot tub, pushed back, arguing it was a largely peaceful demonstration. 

Trucks and protesters also clogged some border crossings, including the key trade route to the United States via Windsor, Ont.

Trudeau’s government invoked the Emergencies Act on Feb. 14, 2022, giving law enforcement extraordinary powers to remove and arrest protesters and gave the government the power to freeze the finances of those connected to the protests. 

It was the only time in Canada’s history the Emergencies Act had been invoked.

Mosley also found the economic orders infringed on protesters’ freedom of expression “as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace.”

Definition of a national emergency questioned 

One of the pillars of the legal challenge, and the public inquiry that came before it, centres around the definition of “threats to the security of Canada.”

Under the Emergencies Act — which was enacted in 1988 — a national emergency exists if the situation “cannot be effectively dealt with under any other law of Canada.” Further, a public order emergency can be declared only in response to “an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency.” 

The government has argued it encompasses economic disruption as well.

The act defers to the Canadian Security Intelligence Service’s definition of such threats — which includes serious violence against persons or property, espionage, foreign interference or an intent to overthrow the government by violence.

WATCH | Trudeau defends invoking the act:

Trudeau defends decision to invoke Emergencies Act

Prime Minister Justin Trudeau appeared before the Public Order Emergency Commission and defended his decision to invoke the Emergencies Act to disperse anti-COVID-19 mandate protesters who had spent almost one month occupying Ottawa.

Then CSIS director David Vigneault testified during the 2022 public inquiry that he supported invoking the Emergencies Act, even if he didn’t believe the self-styled Freedom Convoy met his agency’s definition of a threat to national security.

The Federal Court of Appeal justices were not convinced by the the government’s argument that a less stringent definition of “threats to the security of Canada” could be inferred when invoking the act.

They also didn’t accept Ottawa’s reasoning that rendering critical infrastructure unusable amounts to serious violence.

“This expansive interpretation … could stifle all kinds of protests and demonstrations that blockade pipelines, nuclear plants, railway lines and other kinds of infrastructure to advance a cause,” the decision noted.

Public inquiry came to a different opinion

A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government’s use of the Emergencies Act for weeks during the fall of 2022 and came to a different conclusion than the subsequent legal challenges.

Rouleau concluded the federal government met the “very high” threshold needed to invoke the Emergencies Act, citing a failure in policing and federalism.

WATCH | Government met threshold: Rouleau:

Government met ‘very high’ threshold to invoke Emergencies Act: Rouleau

In his final report, Justice Paul Rouleau concluded that the government’s decision to use the act was ‘appropriate’ and pointed to a series of failures in the police response to the convoy protests.

“Lawful protest descended into lawlessness, culminating in a national emergency,” he wrote.

Rouleau, an Ontario Court of Appeal justice, did say he reached his conclusion with some reluctance.

“I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming,” he said in statements he gave after his report was made public.