Juno News - January 28, 2024


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


Episode Stats

Length

36 minutes

Words per Minute

177.36333

Word Count

6,416

Sentence Count

6


Summary


Transcript

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
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
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
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