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Convoy protesters in 2022 staged a weeks-long demonstration that gridlocked the city of Ottawa over the federal government’s pandemic measures.Justin Tang/The Canadian Press
The Trudeau government’s 2022 decision to invoke the Emergencies Act to end weeks-long trucker protests in Ottawa and elsewhere was not legally justified, the Federal Court of Appeal ruled on Friday.
The appeal court was unanimous, from a panel of three judges that included Chief Justice Yves de Montigny. In a rarely used move, the judgment was signed: “The Court.”
The decision upholds a ruling from the Federal Court two years ago. The appeal court, similar to the previous judgment, said the blockades and protests were “disturbing and disruptive” but asserted: “They fell well short of a threat to national security.”
Invoking Emergencies Act wasn’t justified and infringed on Charter rights, Federal Court rules
The decision, which Ottawa can try to appeal to the Supreme Court by mid-March, represents a major judgment in the country’s legal annals. It clarifies the limits of executive power and, in such cases, the actions of the Prime Minister in heated moments where there is the potential to overstep the boundaries of the law in political-decision making.
The Emergencies Act became law in 1988, and 2022 was the first time it was used. The law had been tailored to include a high bar for its use, as it replaced the previous War Measures Act. Two courts have now clearly ruled former prime minister Justin Trudeau and his Liberal government failed to meet that strict legal test.
The Canadian Constitution Foundation, a Calgary-based advocacy group that was among those who challenged Ottawa in court and won, said the appeal court ruling “sends a powerful signal to future governments.”
“It’s not an exaggeration to say this decision is about the principles of democracy,” said Joanna Baron, executive director of the foundation.
“This ruling strengthens the Emergencies Act,” said Howard Sapers, executive director of the Canadian Civil Liberties Association, another challenger to Ottawa’s use of the act. “If it is used, we will be truly facing a national emergency.”
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An Ottawa police vehicle blocks off Kent Street in front of parked trucks during the ‘Freedom Convoy’ protests in Ottawa on Feb. 6, 2022.Justin Tang/The Canadian Press
The federal government said it is assessing its next steps. “The Government remains steadfast in its commitment to ensuring the safety and security of Canadians in the face of threats to public safety and national security,” said spokesman Simon Lafortune for Public Safety Minister Gary Anandasangaree.
In the winter of 2022, hundreds of protesters drove semi-trailer trucks to Ottawa and parked them there. They were angry over Ottawa’s pandemic vaccine mandates and generally aggrieved with the federal government.
The protests, billed as the Freedom Convoy, involved large rigs and people and gridlocked parts of central Ottawa. Some residents described feeling harassed as truck drivers blared their horns. Some border crossings with the United States were affected as well.
On Feb. 14, 2022, the federal government cited a threat to the security of Canada as it invoked the Emergencies Act. This allowed the government extraordinary temporary powers, including the prohibition of citizens assembling in public and the freezing of bank assets.
In a summary of the appeal court’s 185-page judgment, it said: “The government did not demonstrate that it had reasonable grounds to believe that a threat to national security or a national emergency existed within the meaning of the Act, or that existing laws were unable to resolve the situation.”
In the appeal court judgment itself, the earlier conclusions of the Federal Court about how the situation could have been handled without emergency powers were reiterated. Provincial laws could have helped clear the trucks from Ottawa. More police could have been brought in to clear blockades and protesters.
Five key take-aways from the Emergencies Act inquiry’s final report
A public inquiry, required after use of the Emergencies Act, was held in 2022. In a report in February, 2023, Justice Paul Rouleau concluded that the use of the act was appropriate but also said it could have been avoided.
In January, 2024, Federal Court Justice Richard Mosley ruled that Ottawa’s decision did not “bear the hallmarks of reasonableness” and the federal government had failed to prove there was an actual emergency.
On Friday, the appeal court also said the Federal Court was correct to rule that the use of the Emergencies Act infringed on the Charter of Rights and Freedoms: freedom of expression and the protection against unreasonable search or seizure.
Conservative MP Michelle Rempel Garner on Friday said: “It gives me an opportunity to emphasize how wrong that the use of the Emergencies Act was and, I think, how it undermined Canadians’ trust the government would uphold Canadian civil liberties.”
It’s not clear if the federal government under Prime Minister Mark Carney will appeal Friday’s ruling after losing in court for a second time. Some legal experts said the federal government would seek to test the legal boundaries of the Emergencies Act at the top court.
Leah West, a Carleton University professor who studies national security law, predicted: “It’s a different government and they won’t [appeal]. Nothing about this ruling curtails executive power. It just says: ‘Your reasons in the moment were bad.’”
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A protester dances on a barrier in front of vehicles and placards on Rideau Street in Ottawa, during a protest against COVID-19 measures, on Feb. 16, 2022.Justin Tang/The Canadian Press
The top court takes only a small fraction of proposed appeals but those do include complicated questions of public law, such as the Emergencies Act.
An appeal application must be filed to the Supreme Court by mid-March.
In a potential appeal, the question of earlier commentary on the trucker protests from Supreme Court Chief Justice Richard Wagner may come to the fore.
Chief Justice Wagner did an interview with Montreal newspaper Le Devoir in April, 2022, when he likened the Ottawa protests to the initial stages of anarchy – “c’est un petit début d’anarchie,” he was quoted as saying – and said he found that worrying.
A complaint from a group of about a dozen people, mostly lawyers, to the Canadian Judicial Council alleged a reasonable apprehension of bias in Chief Justice Wagner’s commentary. The council’s acting executive director at the time, Jacqueline Corado, dismissed the complaint, saying it was “manifestly without substance” and called it hypothetical.
Beyond the commentary to Le Devoir, Chief Justice Wagner in mid-June of 2022, at his annual news conference, also addressed the protests in response to a question.
“You asked what impact that had on us: Obviously, like any other residents of Ottawa, it was deplorable,” he said in French, relayed in English by a translator.
“For several weeks, business closed, people lost their jobs, work was much harder for many people, especially for the most vulnerable. And I think this kind of situation should never happen again.”
Editor’s note: This article has been updated to correct the year the Emergencies Act became law, in 1988.
