Juno News - What’s next for the Emergencies Act challenge？

00:00:00.000 The big news of the week has not been the flip-flop of Ken McDonald, but it's been the

00:00:13.780 federal court's trump card, if you will, on the federal government declaring that the use of the

00:00:20.220 Emergencies Act was unlawful. It did not comply with the Emergencies Act and the measures employed

00:00:25.680 did not comply with the Canadian Constitution. We've talked a lot about what this means in terms

00:00:32.780 of the legal arguments that are being put forward. We spoke a bit yesterday on the longer-term

00:00:37.760 implications of this and what it'll mean if it goes to the federal court of appeal and

00:00:41.840 most likely beyond that to the Supreme Court. But I wanted to delve into this in a bit more detail

00:00:47.400 because there have been a lot of questions. And one big one is how this has been such a divergence

00:00:53.380 from a lot of the other case law on constitutional freedoms in the last few years, which have been,

00:00:58.480 as I've said on the show, very deferential to the government and not particularly mindful

00:01:03.060 of protecting people's freedoms. James Manson is the Director of Legal Services with the Justice

00:01:09.640 Center for Constitutional Freedoms and joins me now. James, it's good to talk to you. I should

00:01:14.800 say to my audience, by way of disclosure, I sit on the board of the Justice Center for Constitutional

00:01:19.760 Freedoms, but that has no bearing on this interview. And this is not to be taken, James,

00:01:23.540 as a performance review by your board. Thanks very much, Andrew. You showed up on time,

00:01:29.360 so you're getting a passing grade so far. But welcome. Let's start there. I mean, we've seen

00:01:34.100 a lot of dismal rulings on constitutional freedoms in the last several years, on COVID-era cases,

00:01:40.160 on free speech cases. Why did this one, in your view, go the other way? Like, where was the judge

00:01:45.620 going with this that we haven't seen many of his colleagues go? That's an excellent question,

00:01:51.740 Andrew. And, you know, I have been struggling with the answer to that question for a couple of years,

00:01:58.580 probably like you, probably like a lot of the viewers and listeners. Why is it that these courts

00:02:03.400 have been so unwilling to, you know, even consider the Charter of Rights or consider these very

00:02:11.620 important issues dealing with all the COVID stuff? Why were they so unwilling to do that? And yet,

00:02:18.520 a couple of days ago, Justice Mosley comes right through and gives us that win that we were looking

00:02:23.860 for so desperately. Why was that the case? And I think part of it may be legal. There may be a legal

00:02:30.740 answer to part of that. There also may be a psychological answer to part of that. Now, I'm not

00:02:35.580 a psychologist, of course, but I think that back in those days, a couple, two, three, four years ago,

00:02:42.480 we all remember the fear, right, that was going on in our society. There was a lot of it going on.

00:02:50.520 And I mean, I think maybe some of us felt it to a greater or lesser degree, but I think a lot of

00:02:56.880 people in society were very, very afraid. And I think that that fear extended throughout society,

00:03:03.420 which would include government, the judiciary, a lot of people in positions of authority. And I think

00:03:11.340 a lot of this may have come from the reticence, the fear to say, I can't take a position on this,

00:03:18.520 I can't hear this, I'm too afraid of getting COVID and getting sick and potentially dying, or, you know,

00:03:23.920 all the horrible things that we were talking about back a few years ago. I think a lot of that may have

00:03:28.960 been partly what was responsible. And so the reason I say that, Andrew, is because now we're

00:03:35.300 three years later, we're four years later, we're not quite so worried anymore about COVID. Now COVID

00:03:40.840 is a bit of a punchline. I don't mean to be that glib about it. But people say, Oh, I got COVID over

00:03:45.900 the weekend, and it sucked. And I had to stay home and no big deal. That's where we are now with COVID,

00:03:50.380 right? So I think partly there's a psychological explanation. But the other explanation, Andrew,

00:03:55.720 is more in my bailiwick, which is legal. And so I think maybe the COVID stuff was

00:04:05.120 much more scientifically driven. It was much more about, you know, whether there is a scientific

00:04:14.060 explanation for vaccines, or whether or not staying at home is the right thing to do medically or

00:04:19.680 whatever. And there's all these scientific expert reports flying around for all that stuff. And the

00:04:24.380 courts were really reticent to get involved in all that. Because of course, expert opinions,

00:04:29.560 expert evidence in the courts, it's always very, very tricky. And in this particular case,

00:04:36.000 we weren't really talking so much about any of the stuff that was really COVID, really hardcore COVID

00:04:41.760 stuff. It was a totally different question, which was about the Emergencies Act, which is a very,

00:04:48.560 very, very, you know, complicated issue. But it's very legal, it's very constitutional. It's much more,

00:04:56.460 it's something that that a judge or a court would have much easier time grappling with, in the abstract,

00:05:03.680 than COVID, science, medicine, all that stuff. And I mean, don't get me wrong, Andrew, I totally

00:05:10.220 think that the courts should have gone there anyway, with all the science, they totally should have.

00:05:16.440 But that's, that ship has already sailed, of course.

00:05:19.920 Yeah, I mean, to find a judge who is an expert in science and medicine is very, very difficult. It's

00:05:26.760 incredibly rare. So judges have to be deferential to the experts. And when the government puts out,

00:05:33.100 you know, all of these people in lab coats, it's very easy to say, well, okay, they're, yeah,

00:05:36.780 that must be science. And your point about the legal aspects, I think is incredibly important. Now,

00:05:42.180 I'm not a lawyer, I kind of play one on TV sometimes by, because I've studied these cases

00:05:46.860 and covered them. And I have people like yourself, whose expertise I get to claim credit for in later

00:05:51.320 shows when I repeat it back to my audience. But the Emergencies Act is a very well written piece

00:05:57.680 of legislation, I think, in terms of spelling out the test. And, and I actually found it very easy

00:06:03.860 to go kind of point by point through all of the premises and caveats that it gives,

00:06:08.860 and try to line that up with the government's argument. And to be honest, there was not a lot

00:06:13.640 of subjectivity in the test for a national emergency, in the test for a threat to the

00:06:18.980 security of Canada. The only time you got into a pretty ambiguous territory was when it talks about

00:06:24.840 cabinet has to have a reasonable belief, because they're carving in a bit of subjectivity there.

00:06:30.140 But that was where I thought Justice Mosley's decision was much stronger than Commissioner

00:06:36.760 Rouleau's decision in the Public Order Emergency Commission, because he was probably, he was really

00:06:40.980 accepting the government's very muddied and muddled interpretation of that legal test, whereas

00:06:46.320 Justice Mosley was much stricter and more literal with it, which is, I think, how it was intended.

00:06:51.260 I agree. I totally agree. I can't improve upon your comments, Andrew. I mean, I mean, I think that,

00:06:58.240 I mean, we're talking about two different animals, obviously, the Public Order Commission, and then

00:07:05.460 this. And I think the listeners and viewers know all about what those two different animals are

00:07:10.740 designed to achieve. One may be totally different than the other. One is subject to appeal, and one

00:07:16.820 is subject to much more rigorous cross-examinations and evidentiary requirements, and the other one is

00:07:21.740 not, etc., all that stuff. But I think really what every reasonable observer needs to, I think, admit

00:07:31.660 at the end of the day, is that this decision from the federal court is much more authoritative,

00:07:37.800 shall we say, with respect to the actual text of the legislation, the actual intent of the

00:07:44.300 parliament in bringing it into effect. I mean, remembering this all came out, Andrew, from the War

00:07:49.760 Measures Act back in 1970, and the whole debacle of the FLQ crisis, basically, parliament got

00:07:56.100 together and said, we have to change this. It has to be much harder to invoke these very,

00:08:02.460 very stringent, very, very serious powers. And this is what they came up with, right? And so to say

00:08:10.740 that the government suggested, or maybe Justice Rouleau acquiesced in, to suggest that it

00:08:19.620 should be easy, or that it should somehow fall to the executive, to cabinet, to just be able to do

00:08:26.760 this whenever it basically wants to, is crazy, in my view. It is totally, totally anathema to what

00:08:36.420 parliament did in, you know, enacting this brand new piece of legislation a few years, 50 years ago,

00:08:43.740 right? Yeah. And I wanted to ask a little bit about the mechanics of the next step. We know the

00:08:48.860 federal government is going to be appealing this, which means it will likely go to the federal

00:08:54.120 court of appeal. I've heard several lawyers say that the federal court of appeal is almost certainly

00:08:57.900 going to take this up, given the circumstances. But I'm curious, and I don't know if you can

00:09:03.160 actually drill this down into a statistical analysis, but how commonly are trial court decisions

00:09:10.140 from the federal court overturned by the federal court of appeal? Or is it really a toss up?

00:09:14.580 Yeah, I don't have that statistic. You could probably, I'm not sure if you could find it,

00:09:19.540 if you looked. I can tell you, though, that in this particular case, first of all, just so that

00:09:27.440 everybody's clear, it's not a question of whether they will take it up. They have to take it up.

00:09:33.100 If the federal court of appeal gets a notice of appeal from the government, they have to do the

00:09:38.700 appeal because the government and anybody on our side also would have the right to an appeal in this

00:09:45.360 case. The second appeal, which in this case would be to the Supreme Court of Canada, that one would

00:09:52.940 need to be done by permission. You would have to get what they call leave to appeal. So anyway,

00:09:57.360 we're in the first step. This is an appeal as of a right, which means that you can appeal it. There

00:10:04.880 will be an appeal. Now, the question becomes, what happens on the appeal? There's different tests and

00:10:11.960 different factors and different things that happen on an appeal based on the type of proceeding we're

00:10:19.480 talking about. So this isn't a trial with a jury, for example. This was what we call a judicial review.

00:10:28.100 I don't need to bore everybody with exactly what that means. It's a bit different than just a regular

00:10:32.760 case. But basically, when you go on appeal from this decision, from a judicial review, the standard

00:10:41.800 of review, which is what we use to say, what does the court of appeal do? What is their function?

00:10:46.880 What are they looking for? Sometimes the appeal court has got a very narrow function. They're only

00:10:54.240 looking for some place where the judge made a mistake, screwed up, did something really, really

00:10:58.520 wrong. In other cases, like this one, basically, it's kind of a rehearing. It's kind of a do-over.

00:11:09.400 Not entirely a do-over, but kind of a do-over, which is to say that what the appeal court has to do

00:11:18.200 is take a look at the lower court judge's reasons and determine if they basically applied the right

00:11:24.720 standards of review to the declaration and whether or not they applied it all properly. Now, that's all

00:11:32.020 very formal language to say it's kind of a do-over. So we're going to have to see how much of a do-over

00:11:39.760 we're talking about here. Are we going to literally have 11,000 pages of the record put before the

00:11:46.040 court of appeal? Are we going to have a multi-day hearing in the court of appeal? Is it going to take

00:11:51.680 months to get there while everybody prepares their briefs again a second time? I don't know as I sit

00:11:57.760 here. I hope not, because I don't want to have a totally second kick at the can on the part of the

00:12:07.540 government. My thinking, my hope anyway, is that this is going to be a fairly tailored process.

00:12:17.980 But nonetheless, it's possible that we get into everything all over again, that we get into the

00:12:23.200 mootness again. It's possible that we get into the national emergency finding again. It's possible

00:12:28.100 that we get into the national security threat findings. It's possible that we get into the

00:12:33.420 Charter of Rights again, because of course, the Section 2 and Section 8 violations of the, you know,

00:12:38.900 with those regulations, those horrible regulations, freezing people's bank accounts. Yes.

00:12:45.600 It's possible that we have to revisit all of that. And given the way the government is going these

00:12:51.020 days, that they seem to be completely unable to recognize and respect the rule of law. I'm sorry

00:13:00.920 to be so spicy when I say that, but it appears like I honestly can't believe, Andrew, that a government

00:13:08.700 would consider appealing a decision like this. Well, yeah, I mean, I can't believe they would

00:13:13.720 have done the first thing, which was freezing the bank accounts right in the get there. That's a fair

00:13:18.060 point. I mean, they're only they're only real recourse is to just keep digging in and hope that

00:13:22.420 eventually they're going to get some seal of approval from from a court, I guess. Well, and as

00:13:26.420 you said in your last segment, I mean, we're not going to get help from Mr. Singh. So yeah, it's

00:13:31.160 basically it's basically 2025 or bus, right? Yeah. Yeah. Very, very well said. James Manson is the

00:13:38.260 Director of Legal Services with the Justice Center for Constitutional Freedom. Thank you so much, James.

00:13:42.720 Thanks, Andrew. Cheers. Thanks for listening to The Andrew Lawton Show. Support the program by donating

00:13:47.820 to True North at www.tnc.news.

Juno News - January 28, 2024

What’s next for the Emergencies Act challenge？

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