Carney government asks Canada’s Supreme Court to overturn rulings against use of Emergencies Act to end 2022 “Freedom Convoy”

Police officers gather as they prepare to dismantle the “Freedom” Convoy blockade using emergency powers Ottawa, Friday, Feb. 18, 2022. [AP Photo/Robert Bumsted]

The Liberal government of Prime Minister Mark Carney has appealed to Canada’s Supreme Court to overturn lower court rulings that found unlawful Ottawa’s February 2022 invocation of the Emergencies Act to disperse the far-right “Freedom Convoy.” The Convoy menacingly occupied downtown Ottawa for 23 days and blocked key border crossings with the United States to press for the final elimination of all remaining COVID-19 pandemic mitigation measures. 

The Liberals are intent on ensuring that they and future governments retain the broadest possible latitude to invoke emergency powers in political and social crises, in particular against the working class and a developing movement against austerity and war.

A spokesperson for Justice Minister Sean Fraser told CBC News last week the government is “committed to ensuring it has the tools needed to protect the safety and security of Canadians in the face of threats to public order and national security.”

In its filing with Canada’s highest court, the government argued that the lower court decisions that found the use of the Emergencies Act unconstitutional were based on “wrong principles” and a “flawed approach.” It further argued that the high court needs to make a final determination since the lower court rulings contradict the findings of a public inquiry convened by Carney’s predecessor, Justin Trudeau. In his 2023 report, Justice Paul Rouleau found the use of the Act against the Convoy was “reasonable.”

Federal Court Judge Richard Mosley, a Liberal appointee, ruled in January 2024 that the Trudeau government’s invocation of a public order emergency under the Emergencies Act was unlawful because it did not meet the Act’s high threshold for a “national emergency” or a threat to the security of Canada. It also found that some measures taken under the Act, including the freezing of bank accounts of Convoy participants, violated the constitution’s Charter of Rights and Freedoms and were not justified. 

Under the law a “national emergency” is defined as an urgent and critical situation that exceeds provincial capacity and cannot be effectively dealt with under any other law of Canada. A public order emergency further requires the existence of a “threat to the security of Canada” as defined in the act that governs the operations of the Canadian Security Intelligence Service (CSIS). Mosley ruled these criteria were not met in the Trudeau government’s invocation.

A three-judge panel of two Conservative appointees and one Liberal appointee, upheld Mosely’s ruling in January of this year. 

A draconian law imposed on the basis of a secret “reinterpretation”

Mosley’s ruling and the Federal Court of Appeal’s concurrence do nothing to protect democratic rights, as the main contention is over the legal process in determining the threshold for its use and not the constitutionality of the Emergencies Act itself. The successor to the War Measures Act, it gives the federal government immense power to run roughshod over basic democratic rights in order to take “special temporary measures that may not be appropriate in normal times.” 

The sweeping powers it grants the government include the ability to ban public assembly and free travel, lockdown “protected areas” of cities, seize public utilities and services, compel the labour of those working in “essential services” and imprison for up to five years and impose a $5,000 fine on anyone found in violation of the government’s orders.

The Trudeau government’s invocation of a “public order emergency” was based on a secret reinterpretation of the Emergencies Act authored by the Justice Department. Not only has the government refused to make this “reinterpretation public,” it refused to even share it with the Rouleau inquiry, invoking solicitor-client privilege to shield its reasoning from scrutiny. This secret rewriting of the law, carried out behind closed doors and concealed from democratic oversight, underscores the criminal character of the assault on democratic rights launched by the Liberals under the cover of dispersing the “Freedom” Convoy and demonstrates how easily constitutional protections can be set aside when the interests of the ruling class demand it.

In both cases, the Liberals have stretched and redefined existing legal provisions to sideline parliament and expand its authority to suppress opposition, particularly from the working class. 

The Carney government’s appeal to the Supreme Court is thus aimed at ensuring there are no new legal constraints that could limit the future use of the authoritarian powers contained in the Emergencies Act. 

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