Juno News - January 28, 2024


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


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Length

36 minutes

Words per minute

177.36333

Word count

6,416

Sentence count

6

Harmful content

Hate speech

3

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

On Tuesday, the federal court struck down the federal government's use of the Emergency Measures Act as unconstitutional. This is a special edition of the Andrew Lawton Show, featuring an interview with Christine van Gein, the litigation director of the Canadian Constitution Foundation, and Andrew Lawton, host of the show.

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
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