So, this past week, Federal Court justice Mosley issued a ruling on a group of cases attacking the Federal Government's use of the Emergencies Act as somehow illegal/unconstitutional/whatever.
Let me start off by saying that I've read a good number of rulings from Canadian judges, and usually they're pretty readable. This is not one of them. In fact it is shockingly unclear in so many respects. In other words, to be utterly charitable, it feels like the judge had a horribly unclear picture of the evidence before him and that is reflected in the utterly muddled outcome.
Let's start with the end where we get a clear statement from the justice as to how muddled his thinking really is.
On To The Analysis
In essence, he is admitting first that he is ruling "with the benefit of retrospect", which is problematic in itself. I take this as a declaration that fundamentally the ruling itself is profoundly flawed and the judge knows it.
The first thing I want to point out is that the judge does not have the full scope of the Privy Council report that leads ultimately to the invocation of the EA. In the Annexes, a copy of what the court had before it was provided, and there are significant redactions. Precisely what the context of those redactions covers is, of course, secret. Its importance is in revealing that there are limits to how much of the Governor In Council's decision making we are able to see, and similarly that the courts are able to assess.
Paragraphs 219-255 of the judgement are critical to the ruling. In it, the judge lays out his reasoning around the question "Was there a national emergency?". The judge's opinion here rests upon the question of whether or not other legislative powers could have been used to handle the situation. I suppose that from a purely technical perspective, yes, there were legal tools which could have been used by the provinces. Certainly, Ontario and Alberta both have seemingly relevant legislation.
However, the judge's analysis here fails to fully consider the context of the situation. By the time the Emergencies Act was invoked, we already knew that Canada's conservatives were working the Convoy to undermine the government in Ottawa. Bergen's instructions to the federal CPC caucus were "to make it Trudeau's problem". Similarly, Premiers Ford and Kenney were practically salivating at the opportunity to make a political headache. Blockades at the Ambassador Bridge in Ontario, and Coutts in Alberta cost the country billions in trade, and both Premiers were mysteriously absent in dealing with those blockades.
Ford eventually caved in Ontario and gave the provincial police the needed powers - but only after American legislators started musing out loud about dismantling cross-border automotive trade. Alberta sat firmly on its hands, allowing malign elements in the Coutts blockade to plot the murder of RCMP officers, and to arm up to a shocking degree.
Further, no analysis should have ignored the so-called "MOU" which relied on pseudo-legal gibberish to demand a meeting with the Governor General wherein the government would be dissolved, and the protestors would be installed as some kind of interim government. Yes, the Ottawa protestors backed away from that document after it was revealed and smarter minds than the collective wisdom of the Convoy could muster laughed at them - loudly.
In short, the judge's analysis fails to consider the full national picture, and in particular the political dimensions of that picture. Further, for the judge to opine that there was "no national emergency" also requires him to turn a blind eye to the financing, and coordination going on across these various protest sites. It doesn't take a rocket scientist to understand that they were operating in concert with each other, and they shared goals.
Further, it's not hard to see that there is a significant partisan element to the organization of the protest, and that it was being supported actively by conservative political interests.
The judge's analysis here is arguably incomplete, and the conclusion drawn creates a legal situation that ties the Federal Government's hands when it comes to dealing with a crisis that spans the nation and where there are significant political elements to it.
Then the analysis moves on to the question of whether there were threats of serious violence. Anyone with a Telegram account who was monitoring the "Convoy" as it was organizing saw any number of threats being made both against individual politicians as well as the government in general. Further, blockading border crossings and downtown Ottawa with heavy vehicles is itself a form of threat. In fact, it is no different from the indigenous blockades of railway infrastructure a few years before which caused the government of Alberta to put in place the "Critical Infrastructure Protection Act" - which they declined to use to deal with the blockade.
In paragraph 292, the judge dismisses the events at Coutts as "having been resolved without violence". Except it wasn't. First, the Coutts blockade didn't lift until the morning that it was clear that the EA was going to be invoked. The charges and evidence at Coutts show that the organizing clearly demonstrates that there were elements preparing for violence at that location. To simply dismiss that evidence and say "well, it was all resolved peacefully" is a gross misrepresentation of what was going on. There was plenty of evidence of similar forces at play in Ottawa as well, and we would be naive to think that it wasn't the intent to become violent eventually.
In my opinion, the judge spends far too much time ruminating on matters related to potential violence, and not enough time considering other aspects of the EA and definition of "emergency". The Convoy protests were arguably an economic attack rather than a simple-minded thing like a bombing or arming up to shoot others. To simply conceptualize "violence" in the narrow terms used by the judge here ignores the full scope of what was happening.
At paragraph 292, the ruling states:But the test for declaring a public order emergency under the EA requires that each element be satisfied including the definition imported from the CSIS Act. The harm being caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property.
Here, I argue that the judge has made a serious error in interpreting the CSIS Act's definition of "threats to the security of Canada". The CSIS Act defines "threats to the security of Canada" as follows:
threats to the security of Canada means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). (menaces envers la sécurité du Canada)
When we are talking about these definitions, it is important to recognize that there was evidence that the Convoy protest met criteria under items (b), (c), and (d) of the CSIS definition. Consider the following analysis:
With respect to point (b) from the CSIS act, we have evidence of US GOP politicians engaging with and endorsing the convoy (e.g. Mike Roman in particular); there is evidence of non-Canadian funding of the Convoy - and the extent of that was not clear at the time of declaration.
With respect to point (c), in spite of the "hot tubs and BBQs" front, there is little doubt that the occupation of downtown Ottawa presented a real and serious problem for the residents of Ottawa. Had the protest dispersed after a reasonable amount of time, it wouldn't have been an issue. It didn't. Instead we saw the protestors establishing encampments, logistics bases, and so on. To such an extent that the local police force could not deal with (or failed to deal with entirely).
Now, let's turn our attention to the border blockades. We cannot examine those in isolation relative to the Ottawa Occupation, because at the end of the day, it's pretty clear that these were highly coordinated actions with a regular stream of communication. This cannot be ignored, nor should it be in the service of some judicial desire to make a precedent for a narrow interpretation of the law.
The fact of the matter is that we had a multi-pronged "attack from within" assault on not only the government of Canada, but on the economy of Canada as well. It would be valid for the government to claim that the larger picture also includes elements of clause (d).
Similarly, I disagree strongly with the judge's analysis of whether the Economic Orders to freeze bank accounts associated with funding the Convoy. I note that the judge not only fails to acknowledge the time critical nature of the situation, but he also fails to fully apply the rationale of the Oakes test. Those economic orders were, in my opinion a necessary and appropriate means of limiting the resources that the Convoy protestors had access to. At the end of a week, things were bad enough in Ottawa, and the impact on the economy was clearly becoming measurable. The EA was not invoked until the protests had been going for a full 3 weeks.
Conclusions
To be kind, the judge in this ruling has taken a narrow, point by point approach to interpreting the invocation of the EA, and whether that was reasonable and justified. If one looks at the topics individually, perhaps one can arrive at such a conclusion. However, the job of the GIC in such circumstances is not to engage in legal theatrics, it is to take decisive steps to restore order before things get further out of hand.
While the government has obligations under both the Constitution and the Emergencies Act itself to safeguard the rights of all Canadians, legal review of such matters needs to fully encompass the context of the situation. In such circumstances, there may actually have to be evidence introduced to the courts which is not made visible to applicants asking for relief resulting from the invocation of those powers.
If this ruling is allowed to stand, it will hamstring the ability of future governments to respond effectively to emergency situations by tying their hands to levels of detail and analysis that simply are not practical in the moments of emergency. A narrow, inflexible application of law here is wholly inappropriate as each emergency has unique characteristics and there are a broad range of considerations as to what might (or might not) be "legal" in a narrower legal interpretation taken after the fact.
[ I may add to this post when I have time and the inclination to wade through the ruling further ]
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