Juno News - Constitutional lawyer breaks down Emergencies Act ruling (ft. Christine Van Geyn)

00:00:00.000 welcome to canada's most irreverent talk show this is the andrew lawton show brought to you by true

00:00:09.060 north hello and welcome to a special edition of the andrew lawton show canada's most irreverent

00:00:16.340 talk show it's not a brand new edition normally on the weekends we'll rerun some of the notable

00:00:22.060 interviews we conducted throughout throughout the week this is a bit of a different week though so

00:00:27.040 i wanted to do something a little bit special here because we had the breaking news on tuesday of the

00:00:32.720 federal court's decision finding the federal government's use of the emergencies act to be

00:00:37.600 unconstitutional we had some early reaction from christine van gein who's the litigation director

00:00:43.500 for the canadian constitution foundation and then we had her back on the next day on wednesday's show

00:00:48.800 to delve into it in a bit more detail and i thought that either one of those in isolation

00:00:53.620 wouldn't be a complete picture of what was a very fascinating pair of discussions about the ins and

00:01:00.160 outs of this case about what it means and for the law for the country politically so i wanted to bring

00:01:05.220 you both this is my interview with christine van gein the very first day the day that this decision

00:01:11.720 came down from the federal court really less than an hour after it did so this was just the product of

00:01:17.100 both her and i trying to capture as much as we could before the live show began that afternoon

00:01:22.640 at 1 p.m eastern christine i i know you've not had lawyers are very speedy readers but i know

00:01:28.140 uh you haven't had time to fully digest 190 pages just yet but uh what's your early reaction on on this

00:01:34.980 case here and what was your role in it so our role we were one of the parties that brought this this was

00:01:40.480 brought by the canadian constitution foundation which is a national legal charity that fights for

00:01:46.400 fundamental freedoms in canada as well as by the canadian civil liberties association as well as

00:01:52.220 by another organization called frontline nurses and by some individuals who had been affected by the

00:01:59.540 emergency measures for example individuals who were arrested for breaching um or i guess they

00:02:07.040 actually weren't charged under the the emergency measures but they did have their uh bank accounts

00:02:12.080 frozen so the reaction is i am i'm absolutely thrilled i i didn't know what i was expecting you know you

00:02:21.960 kind of try to brace yourself when you are dealing with this complex litigation that goes on for extended

00:02:29.440 periods of time i mean i i i didn't know what to expect um my my best hope i think was was

00:02:37.680 surpassed with this because we really won on everything um the the crux of this case is that

00:02:46.940 the invocation of the emergencies act in response to the 2022 freedom convoy was unreasonable and ultra

00:02:54.880 veras which means outside the scope of the authority of the government and then the other major issue

00:03:01.500 was whether or not the actual regulations that were created under the emergencies act which is

00:03:09.120 prohibitions on gatherings that prohibited people from protesting and a um or going to a prohibited

00:03:17.340 protest and then the financial the economic measures which uh ended up freezing people's bank accounts

00:03:23.680 and the court found that those measures were unconstitutional they violated the canadian charter of

00:03:29.800 rights and freedoms and there's also some discussion in the case about the bill of rights i i mean i'm

00:03:35.560 only i'm 90 pages into the decision which i got less than an hour ago i'm trying to get through it as

00:03:41.600 quickly as i can for initial reaction just to see what the big issues are and then i'm going to

00:03:47.540 obviously do an even deeper dive after this but my initial reaction is this surpassed my my expectations

00:03:53.600 this is a wonderful day for fundamental freedoms in canada for the right to protest and a wonderful day

00:04:01.980 on i mean i i think a lot of canadians throughout the pandemic had their faith in our our justice system

00:04:08.860 really challenged because there were a lot of decisions that didn't come down the way we had hoped

00:04:15.220 this is a huge exception and i think that in the the context of the pandemic the invocation of the

00:04:21.940 emergencies act was the most extreme piece of government overreach and here we have a court

00:04:27.020 slapping down the trudeau government for having done that and just to put a finer point on this

00:04:32.620 and and please if i i've misrepresented this correct me but as i understand it from what you said and

00:04:36.920 and what i've read so far the court has found that the emer there was no emergency basically in keeping

00:04:43.420 with what the emergencies act has said and even if there were the measures employed were not

00:04:48.760 constitutional am i understanding that correctly so i haven't got to the second part of your

00:04:53.840 question yet but i'll read directly from paragraph 255 for you for these reasons i conclude that there

00:05:00.280 was no national emergency justifying the invocation of the emergencies act and the decision to do so

00:05:06.100 was therefore unreasonable and ultra virized should i be found to have aired he then goes on to discuss

00:05:12.000 some of the different threshold requirements um because the the invocation of the emergencies act that piece of

00:05:17.900 extraordinary legislation actually has a number of internal thresholds like uh threat to the security

00:05:24.300 of canada and a requirement that the law be a law of last resort now 90 pages in i'm not at those parts

00:05:30.300 yet and i don't uh and i haven't got to the charter arguments on the actual regulation so i can't comment

00:05:36.380 on that yet but i know the result which is that they were found to have been a charter breach and and

00:05:43.660 not saved by by section one of the charter let me let me just pull ourselves out of this decision for

00:05:49.180 a moment here and i just want to i mean maybe this is a bit of a civics lesson for people but we went

00:05:53.980 through this massive public order emergency commission last year and at the end of that uh justice uh

00:05:59.740 relo or commissioner relo had concluded that the emergencies act was satisfied that threshold was

00:06:05.900 satisfied so uh what which is more important really and and how do we rationalize and sort of reconcile

00:06:12.540 these two uh seemingly well not seemingly these two inherently contradictory findings this is a really

00:06:18.460 important question this case is no question more important than an actual decision from a court

00:06:25.820 is has much more weight the the rouleau decision has no precedential value it would be of political

00:06:33.180 consequence but i don't want to you know invalidate that as an exercise because one of the really

00:06:39.820 important things that was we that helped us to actually achieve this result in the court case

00:06:45.020 was because the rouleau commission had this extreme level of transparency and we were able to

00:06:50.540 access all kinds of cabinet documents that we otherwise would not be able to access which actually we

00:06:56.780 had in this case the government had been fighting us over the disclosure of these documents that we

00:07:01.660 wanted and we were able to access them because they ended up becoming public through the rouleau inquiry

00:07:06.620 so that even though i totally disagree with the result in that inquiry it still was a really

00:07:13.740 important part of the process that led us to this result which has a huge bearing and weight on

00:07:21.980 how emergency this emergency legislation can be used in the future i think the long-term

00:07:27.900 impact of this decision is that this will reign in some of the concerns that we had over the government

00:07:35.340 now having you know unleashed the kraken and they've now used this piece of extraordinary legislation 0.99

00:07:41.900 i think there there's going to be a lot more um restraint now because they've really been slapped

00:07:49.020 down for this this is an absolute loss for the trudeau government they couldn't they couldn't have lost

00:07:55.180 worse like this yeah that's fair and i know this is not a covid case i think a lot of times it gets

00:08:00.300 lumped into the landscape of covid because that was the environment the birth the freedom convoy which

00:08:06.060 to the government birthed the the emergencies act so this isn't a covid case but i do think if we look

00:08:10.540 at all of the pandemic challenges that have been uh there in the last couple of years one thing you

00:08:15.740 and i have talked about i'll say lamented on stage and on this show has been how deferential uh courts have

00:08:21.500 been to the state over this period including on freedom of expression issues so it isn't it is

00:08:27.020 really a a divergence from what a lot of the jurisprudence has been on some of these cases of

00:08:33.100 this era over the last few years is it not it is yes i think that this was a case though where

00:08:40.540 i think one of the issues with the covet era cases was evidence and that it was difficult to litigate

00:08:47.740 with the scientific evidence as the basis about you know how dangerous are is the is the virus and

00:08:54.940 there was a lot of deference given to to the government about that and there was a kind of a

00:09:01.260 lack of scientific evidence that was in in the court cases themselves now some of the cases there were

00:09:07.100 some in manitoba that had some discussion of the evidence but for the most part it was it was not

00:09:12.940 litigated on the evidence on the science uh so it was in the end the courts ended up having deference

00:09:19.020 to the government in this case this is a more straight principle principles of law and there

00:09:26.940 actually in this case was a huge amount of evidence because of the rouleau inquiry we had all of these

00:09:31.420 affidavits we had all this evidence from testimony from policing experts um from cabinet ministers so

00:09:37.260 there was a lot here to um help the justice reach this conclusion and you also had the government

00:09:46.300 attempting to have this dismissed on mootness grounds which uh the judge clearly did not do and

00:09:52.140 i think we can be very grateful for that fact but that was one that i found quite notable that we have

00:09:56.620 such a a massive unprecedented legislation incredibly controversial usage of it and the government didn't

00:10:02.780 even want there to be a judicial review on it yeah i think that that's such an offensive notion that

00:10:08.940 this piece of extraordinary legislation that by its very nature is temporary anytime you invoke

00:10:15.820 emergencies are just temporary by nature that's what makes it an emergency um and the idea that you could

00:10:21.900 never scrutinize um this the use of this legislation because by the time you get to court the emergency is

00:10:28.780 over this is like a preposterous type of suggestion by the government and now the the judge justice

00:10:35.420 mosley did find that the case was moot i mean the the facts on the ground were were done but of course

00:10:42.380 courts have the inherent discretion to hear a case in spite of its mootness so he did proceed to hear

00:10:49.980 the case even though you know the the protests obviously had resolved and the emergency declaration had

00:10:56.060 been revoked it was only in place for a very short period of time and this was a huge issue in the

00:11:01.180 hearing where justice mosley just did not seem to be buying it at the hearing um he said in what

00:11:08.620 context would a court ever hear a challenge because it's always going to be over the emergency is always going

00:11:16.780 to be over by the time it gets to court and uh the attorney general really tried to wiggle out of that

00:11:23.660 one but i mean it is what it is and the the judge is right in this case it's always going to be over

00:11:29.980 by the time you get to court um and we're happy that this this absurd mootness argument was rejected

00:11:38.140 we are going to have you back tomorrow for a deeper dive into this once you've had a chance to

00:11:43.180 pour over it here um and i know there are going to be a few things that you'll be looking out for

00:11:47.180 specifically but i just wanted to ask you is this effectively a guarantee that the government

00:11:52.620 is going to appeal this to the the federal court of appeal um if i were a betting woman i would bet

00:11:59.180 they're going to seek leave to appeal it's they haven't said so yet but i would be absolutely

00:12:06.860 shocked if they don't appeal i mean i'm interested to see what the government's statement on this is

00:12:12.460 um because i mean it's a brutal loss for the trudeau government today well and you may not have seen

00:12:18.780 this they had a bunch of media adherences planned from ministers who have all now gone into hiding

00:12:24.300 in montreal like bill blair was about to speak and now they've like you know shoved him out the back

00:12:28.540 door and canceled this so one thing i would say though andrew is that i mean i am i'm certain that

00:12:34.780 the government is going to try to appeal this or they're going to seek leave to appeal they haven't

00:12:38.540 said it but i would bet that they are and um this is a case that is tremendously expensive so if your

00:12:45.260 supporters care about this issue and they want to see us successfully fight an inevitable appeal they

00:12:51.900 can make a donation to our legal fees at the ccf.ca donate yeah there was no i noted in the decision

00:12:59.100 there was no cost award here so it's not even like the the government is uh you know forced to give you

00:13:04.220 a token for you know having bought this we we actually typically don't ask for costs okay there's

00:13:09.740 maybe a few exceptions but i mean that's taking your your your and my money andrew because we're

00:13:14.620 always suing the government you're taking the libertarian approach let those who support this

00:13:18.060 fight uh support you well uh that website is the ccf.ca again christine congratulations we will

00:13:24.140 talk to you on the show tomorrow in in a bit more depth on this but well done wonderful

00:13:30.860 you're tuned in to the andrew lawton show

00:13:33.340 that was my first discussion with christine van gein and as i promised at the end of it there we

00:13:40.700 would have her back on the next day when both she and i had the opportunity to delve into the decision

00:13:45.900 in a bit more detail which is what we did so this was my interview with christine on wednesday's show

00:13:52.140 now that you've had the chance to look through this i i'm curious what your takeaway is because

00:13:57.420 obviously you agree with the outcome i i as do i but the reasoning behind it do you find it

00:14:02.940 it sound and is it based on what you would have hoped as a lawyer it was going to be based on

00:14:08.060 yeah so these are very detailed reasons where justice mosley goes through not just some of

00:14:14.700 the preliminary matters like standing and mootness but really dives into the crux of invocation so he

00:14:24.620 gets he spends a lot of time dealing with whether or not the threshold to invoke the emergencies act was

00:14:31.980 met and then he looks at once finding that it was not met then he goes through the measures enacted

00:14:37.900 under the emergencies act that's that was the freezing of bank accounts and the prohibition on

00:14:43.020 on gatherings and found that those were unconstitutional so we can talk about any of those

00:14:48.220 he also gave a shout out to council he said that uh one of my favorite quotes was at the end of the

00:14:53.900 decision and he said that the advocacy was wonderful and he said at the in kind of radical

00:15:01.260 transparency he said when i this case started i was leaning the other way and but for the advocacy

00:15:07.340 of groups like the canadian constitution foundation and the canadian civil liberties association

00:15:12.140 this case could have very well turned out differently so to receive that type of

00:15:17.580 sort of shout out from the bench is it's a wonderful wonderful feeling i i wanted to ask

00:15:23.580 about that actually because i i've not read as many of these things as you have i've read probably more

00:15:27.980 than it is healthy for a normal person but i i've not really come across a judge being that transparent

00:15:34.060 about their own evolution on a case like this whereas he was basically saying look at the beginning

00:15:38.620 i was leaning this way is that as rare as it seems on the surface it is so judges will uh will sometimes

00:15:45.100 if council is particularly good or particularly bad uh either give a a nice or a mean shout out to

00:15:53.260 the lawyer and say that this council was was exceptional or this council was bad uh you don't

00:15:59.260 want to be the on the bad end because then well there was one of those in this case too i i saw it

00:16:05.020 was one of the groups canada frontline nurses just got a rather scathing rebuke by the judge yeah i i i was

00:16:11.660 there in the courtroom uh so i saw what the lead up to this was and i frankly it was pretty well

00:16:17.980 deserved i wasn't surprised that there was a some criticism from the bench of that one particular

00:16:23.180 lawyer because he i mean his argument started with a discussion about the prime minister wearing

00:16:28.140 blackface which of course he did but it's not really there's not really a legal argument uh in 0.72

00:16:33.580 that it's more of a just by the way yeah anyway yeah it is rare to receive a kudos like that from

00:16:40.060 the bench so we were very thrilled to get that i wanted to ask you because one of the things you

00:16:45.900 and i spoke about when your book came out pandemic panic not that long ago was that freedom of assembly

00:16:51.980 is a very underdeveloped area of law and i i was curious what your take was on on if that's a bit

00:16:57.900 more developed now or if that really weighed in in this decision in a meaningful way so justice mosley

00:17:05.900 wrote that there was no breach of the right to freedom of assembly because he said the right to

00:17:11.020 freedom of assembly comes with a caveat which is freedom of peaceful assembly so he was not concerned

00:17:17.980 with the gathering limits breaching that right because he said the the gathering limits prohibited

00:17:24.940 participating in a gathering that may lead to the that could reasonably lead to a breach of the peace

00:17:30.300 so he said those gatherings are protected anyway i mean i i do quibble with this because

00:17:37.420 i i don't want to say too much because it may be a ground for a p it may be involved in the appeal

00:17:42.460 but i understand the position that he took because it does have that caveat in the right but i don't

00:17:49.660 agree with the conclusion that that right was not violated but the important thing to know about

00:17:55.180 the right to freedom of assembly is that it is an underdeveloped right in our charter there's not

00:17:59.580 very much jurisprudence on the right to freedom of assembly and we wrote in our book that the pandemic

00:18:05.420 presented a number of opportunities to develop a legal test of what constitutes an assembly in this

00:18:11.420 case there clearly was an assembly um the question on whether or not something is an assembly more

00:18:19.340 is geared to whether you know private gatherings like a thanksgiving dinner would constitute an

00:18:24.540 assembly under the charter i think that it would given that the text of the charter doesn't uh delineate

00:18:30.540 what the purpose of the gathering needs to be but anyway that's sort of not what this case was about

00:18:35.980 um he found there was no breach of the right to freedom of assembly the breaches were for the right

00:18:42.300 to freedom of expression because a protest is an expressive event and he found there was a breach

00:18:48.780 to privacy rights that the um disclosure information from bank accounts was an unreasonable search and

00:18:55.740 seizure that was unjustified i wanted to ask about something that follows up on on a discussion we

00:19:01.740 started yesterday which was the distinction between this and the public order emergency commission and

00:19:06.780 and just to bring people up to speed here the public order emergency commission

00:19:09.260 emergency commission was a creature of statute it's mandated in the emergencies act itself that

00:19:14.220 there must be this review and at the end of that rather exhaustive set of hearings the commissioner paul

00:19:20.780 rouleau found that the government was justified that it basically complied with the tests set

00:19:26.300 out in the emergencies act now the federal court has found the opposite is true that it was not justified

00:19:31.660 and i'm curious now that you've dug into the decision where that divergence took place

00:19:36.220 and and where uh if there was like a pivotal point uh justice mosley uh disagreed with uh basically commissioner

00:19:44.700 rouleau so he doesn't say that i mean it it's obvious that he is disagreeing but i think from what seems

00:19:54.140 like one of the key areas of disagreement is on the threshold of threats to the security of canada

00:20:01.740 and uh that is not what this case actually turned on this case uh turned first on whether or not a

00:20:10.140 national emergency existed and and justice mosley found that it did not but the the real question for

00:20:17.820 lawyers who are interested in the emergencies act is this issue of what is a threat to the security of

00:20:23.820 canada and in the legislation the emergency act that is a term that the legislation says has the same

00:20:33.340 definition as given to uh the term in the cesus act another piece of legislation and the cesus act requires

00:20:42.540 it there to be a threat or actual serious violence for a ideological or religious or political cause and

00:20:53.100 and justice mosley disagreed with justice rouleau about what that about the flexibility of that

00:21:01.660 definition and justice mosley found that that term because it's defined in the statute as having the same

00:21:09.660 meaning as another statute there can be only one reasonable interpretation it cannot have the myriad of

00:21:17.580 possible interpretations that the federal government has tried to give it which includes things like

00:21:24.860 economic harm because there were border blockades justice mosley found that economic harm is not

00:21:31.900 a threat to the security of canada under the cesus act and it is so it is not a threat to the

00:21:36.460 security of canada under the emergencies act and he said perhaps perhaps it should be i don't know

00:21:42.540 perhaps the legislature could amend it if if they want that to be the interpretation they should amend

00:21:49.100 the legislation but it is not the role of the court to do that to amend the legislation but you know

00:21:57.500 justice rouleau did accept the government's interpretation that threat to the security of canada had a

00:22:06.540 sort of different meaning under the emergencies act than it does under the cesus act and the government

00:22:11.340 has continued in the announcement of their appeal to make that case that it has this broader definition

00:22:17.580 that actually includes economic harm one of the things that i i think is probably and and will

00:22:24.220 remain in the history books as the most heavy-handed aspect of this is the freezing of bank accounts i

00:22:29.100 mean after you and i spoke yesterday i had tom marazzo on and also eddie cornell two people whose bank

00:22:34.460 accounts were frozen uh cornell was actually one of the applicants in this case and this remains

00:22:40.300 incredibly overbroad there were you know the government sort of held as its defense to this

00:22:45.660 well we only froze this small handful of accounts but the way the emergency orders were written uh they

00:22:51.660 could have frozen many many more i mean anyone who had donated a dime to the truckers would have been

00:22:56.300 fair game as as i read this and as most people would so i'm curious how the judge really took that

00:23:02.540 because i i did see one section in particular that stood out in which justice mosley talked about the

00:23:07.660 indiscriminate nature of it that the government really didn't do anything to prevent uh spouses 0.97

00:23:12.620 from being affected who had nothing to do with the convoy so okay a few things so the bank account

00:23:18.700 freezing justice mosley found was a violation of the charter's section 8 guarantee to be free from

00:23:25.340 an unreasonable search and seizure now in court the government had argued that this was not even a search

00:23:30.940 which is frankly preposterous and justice mosley in the hearing basically told them to stop wasting

00:23:37.020 their time and get to section one whether or not it was a justified search because he's like i don't

00:23:42.460 know i i forget his exact words but in the hearing itself he was not buying this argument that this was

00:23:47.900 not a search so we know that the this the examination of financial records is a search like there is a lot of

00:23:58.620 case law that says that financial records are part of the what we call the biographical core of personal

00:24:05.660 information it can reveal all kinds of personal details about a person so you know like what your

00:24:13.100 socioeconomic status is what your what your lifestyle choices are i mean frankly i don't want my husband

00:24:20.540 looking at my credit card bills let alone justin trudeau so clearly this is a search the the orders

00:24:29.580 required financial institutions to give this information to the government to police to csis

00:24:36.620 and to the rcmp so the other thing justice justice mosley was said this is a search the other thing he

00:24:44.940 found was he had to look at whether or not the search was minimally impairing uh whether it was a

00:24:50.940 justified limit under section one of the charter one of those criteria is that it be a minimally

00:24:56.780 impaired minimal impairment of the right and he found that the suspension of bank accounts and

00:25:03.980 credit cards affected joint account holders and joint credit cards uh so people who had absolutely

00:25:12.700 nothing to do with the protest if they were at home in um toronto or alberta or british columbia or

00:25:18.540 some other part of the country having nothing to do with the protest they might not be able to

00:25:23.740 use their credit card or go get into their bank account to buy groceries or to buy medication and

00:25:28.780 that happened to some to one of the applicants in this case that happened to him um these family

00:25:35.980 members had absolutely nothing to do with the protest yet their accounts were frozen that's not

00:25:41.260 minimally impairing and justice mosley found that the government took absolutely this to use his words

00:25:48.780 he said that he found there appears to have been no effort to find a solution to that problem um

00:25:56.060 another thing that justice mostly found on the credit card and bank freezing was that there was no

00:26:03.020 clear standard that applied to determine whether someone would be a designated person and have their

00:26:10.620 account frozen so the police say we only froze the accounts of people who were heavily involved in the

00:26:17.180 protest but the regulations don't actually say that so as you pointed out someone who had simply

00:26:23.980 donated to or supported the convoy might be subject to being targeted there was no clear standard and

00:26:33.180 justice mosley described the process for freezing the accounts to quote him he said the police just making

00:26:39.900 it up as they went along and then he also found once your account was frozen there was no

00:26:46.540 process to question the determination of why your account was frozen or how to get it unfrozen so a

00:26:53.900 lot going on there that clearly a breach of section 8 of your your right to be free from an unreasonable

00:27:00.380 search and justice mostly found that that that breach was not a justified limit on your charter rights

00:27:06.380 were there any of the emergency measures that he defended that he said you know actually that wasn't

00:27:11.100 unconstitutional so he said that there was uh no engagement of the bill of rights he there there

00:27:18.540 was some argument on bill of rights he was not interested in the arguments on international law

00:27:23.420 he found there was no breach of section 7 which is the right to life liberty and security of person

00:27:30.380 because he said while some people were detained uh when they were arrested uh i believe he said they were

00:27:37.180 arrested under the ordinary criminal code and their detention was uh was brief so because one because

00:27:45.100 one aspect i was interested in was i mean partially for selfish reasons was the way that journalists were

00:27:51.660 uh excluded from even reporting on this i mean there were some very i mean this would be something that

00:27:56.460 would probably have to come up in a separate case but there were excluded or pepper sprayed andrew well

00:28:01.420 both i mean in my in my case pepper spray but but even excluded and you had on the ground some very

00:28:06.460 inconsistent uh decisions like police saying that you don't have a right to walk down a sidewalk uh

00:28:11.900 because they've decided that this is now an area that they're clearing out and you know in in my case

00:28:17.020 i i had a couple of points where i was threatened with arrest even though i like this is the day after

00:28:22.220 the protests had been dismantled but i i'm wondering when you look at this from your perspective and i don't

00:28:27.580 want you to give the government ideas here but the government had committed to appealing this

00:28:31.900 basically before the ink was dry and before they had had a chance probably well i don't think they

00:28:35.900 expected to lose well fair fair enough but but i'm curious where you think they'll try to dig in on

00:28:41.420 this and where you think they'll try to base their appeal so they can only appeal what are referred to as

00:28:48.620 mistakes of law i mean that you you can also appeal what are called mistakes of fact uh but that's a lot

00:28:56.300 harder it needs to be what's called a palpable and overriding error and so there were a number of

00:29:01.980 findings of fact in this decision that will be a difficult hurdle to overcome so on this question

00:29:09.180 of threat to the security of canada one of the things justice mosley found was that the only evidence

00:29:16.380 of any threat of serious violence which is part of the threshold was in coots and he in coots alberta

00:29:23.820 where a number of people were arrested and had firearms and justice mosley wrote that while

00:29:29.740 obviously concerning and of course it is concerning those individuals were arrested before i i believe

00:29:38.860 before the um they were arrested under the ordinary criminal code so part of the threshold is the

00:29:46.380 requirement that no other law can be used to deal with the situation and clearly these individuals were

00:29:51.980 arrested under the existing criminal code so the fact that justice mosley kind of

00:29:58.940 found that the evidence showed there was only one threat of serious violence and it was addressed

00:30:06.220 using the criminal law suggests i mean i think that that's a i mean that is a finding of fact the

00:30:12.860 government can't now bring new evidence to show you know there were other hardened terror like terror

00:30:18.780 cells around canada that were a huge threat uh they're stuck with that finding and and that can't

00:30:25.340 really be overcome at least not very easily i think on errors what they have to focus on is what we call

00:30:33.420 as lawyers errors in the law and i mean i don't think there are errors in law in this decision i agree

00:30:39.660 with this decision completely but based on what christia freeland said in her press conference

00:30:46.060 yesterday it's it's seems like the government continues to emphasize this notion of threat to

00:30:54.860 the security of canada b and the standard including economic harm so they seem set on that argument but

00:31:02.620 i will say before they can even get to that justice mosley had already found that the use of the law

00:31:08.860 was unjustified because he found that there was not a national emergency and and that alone was

00:31:14.620 enough to find that the the invocation was unreasonable yeah and the government's insistence

00:31:20.060 that economic harm even qualifies as all of these things under the emergencies act i i think is very

00:31:26.700 very questionable in in a lot of ways i i just i wanted to just before we go here draw attention to

00:31:32.060 uh if you're following along at home everyone para 308 and 309 of the i see christine's following along

00:31:38.300 she's uh i see her looking for the monitors there i basically what he's saying here is that there was no

00:31:43.500 real distinction between people that had a truck that were blocking a border effectively or blocking

00:31:49.820 wellington street and people that just wanted to stand on parliament hill with a canadian flag and and

00:31:54.460 stand up for freedom as is always legal as a legitimate form of protest and that was something

00:31:59.420 that it came up slightly in the public order emergency commission where commissioner rouleau

00:32:04.220 asked at a couple of points if there was ever an alternative representative you can continue your

00:32:08.540 protest but here's how and i i appreciated that justice mosley did dig in on that where he said hang

00:32:14.380 on someone who wanted to stand there as an individual and not block a street was treated the same way

00:32:19.580 as someone that parked a semi in front of parliament hill yeah so this is in the part of

00:32:24.620 the decision that's dealing with charter infringement so the way the emergencies act was invoked the

00:32:31.180 government created regulations and one of them was a restriction on participating in a gathering that

00:32:37.500 could reasonably lead to a breach of the peace or materially supporting the gathering or traveling to

00:32:42.940 that gathering and in so far as the prohibition would would stop you from sitting in a semi truck on

00:32:55.500 wellington blasting your horn perhaps that might have been okay but this prohibition was not minimally impairing

00:33:03.660 which is what is required for it to be constitutional it did not it captured too many people so yes it

00:33:12.540 captured the person who had been spent three weeks on wellington street which is not you can't blockade

00:33:19.740 infrastructure indefinitely that we are a rule of law country you cannot do that that is not protected

00:33:25.100 expression but it captured that person but it also captured a person who had a a poster that they

00:33:32.620 wanted to walk with to capitol hill or parliament hill and stand on the grass which is completely

00:33:38.220 protected expression so it captured too many people it was not minimally impairing which is one of the

00:33:44.940 the requirements of a law if it's going to infringe on a right which this did well i'll give you again

00:33:51.340 the congratulations well earned that i gave you yesterday on the show and now uh the judge himself

00:33:57.260 has also lauded you for your work which uh i hadn't seen yesterday so uh well done all around

00:34:02.140 on this christine i look forward to having you back on as this uh case proceeds i mean the best

00:34:06.380 case scenario at this point would be for the court of appeal or the federal court of appeal to say

00:34:10.300 there's no appeal here right um i'm not sure if they get leave to appeal as of right or not but i think

00:34:16.940 certainly if they are if leave is the permission of the court to appeal if i think that they would

00:34:22.860 get it i think an interesting question is if if whatever the outcome is at the court of appeal

00:34:31.260 i mean the timeline that we're looking at is probably six months from now an appeal could be

00:34:35.980 heard and then six months from now we might get a decision but a year until there's a federal court of

00:34:41.660 appeal decision you're i think at a minimum and then when we talk about any possible if there's

00:34:47.980 any possible delays how close are we pushing it to an election because i do think if there's a change of

00:34:53.340 government the desire to appeal this decision will perhaps be lacking yeah fair enough but but but

00:35:02.380 assuming just that it goes through the normal channels here you've got a hearing under the federal

00:35:06.460 court of appeal federal court of appeal decision and then potentially beyond that supreme court of canada

00:35:11.500 how long would that add to the timeline another six months for the appeal and then six months for

00:35:17.900 the decision yeah and you're right so we're well into i mean a year into the the next government's

00:35:22.540 term possibly whether there's a change or not so uh ideally here there would be a bit of contrition

00:35:27.420 from the federal government but right now we're we're not seeing that i think that they'll probably

00:35:32.300 rush it because i think they can read polls as well yeah fair enough all right well we'll get the

00:35:37.420 political analysis next time christine van gein litigation director for the canadian constitution

00:35:42.140 foundation well done on this and thanks so much for coming on again thank you all christine all the

00:35:47.420 time that was what i joked about after the end of that second interview hope you enjoyed that we'll

00:35:51.660 be back monday with another brand spanking new edition of canada's most irreverent talk show

00:35:56.460 here on true north thank you god bless and good day to you thanks for listening to the andrew lawton

00:36:01.180 show support the program by donating to true north at www.tnc.news

Juno News - January 28, 2024

Constitutional lawyer breaks down Emergencies Act ruling (ft. Christine Van Geyn)

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