In 2022, Prime Minister Justin Trudeau declared a public order emergency in response to a Freedom Convoy protest on Parliament Hill. The government sought to freeze bank accounts and other financial assets of participants in the protest. The Canadian Constitution Foundation challenged the government's use of the Emergencies Act, arguing that these actions violated the Charter right to freedom of expression and assembly. The Supreme Court of Canada agreed.
00:00:00.000good evening western standard viewers and welcome to hannaford a weekly politics show i'm jen
00:00:27.520Hudson, filling in for Nigel Hannaford this week. It's Thursday, February 6th, 2025,
00:00:34.400and my guest today is Christine Van Gein, Litigation Director at the Canadian Constitution
00:00:41.280Foundation. Today we're going to be talking about the federal government's appeal to the January
00:00:47.1202024 ruling that the invocation of the Emergencies Act on peaceful protesters on Parliament Hill
00:00:53.920during the Freedom Convoy in 2022 was unlawful. But first, a word from our sponsors.
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00:01:34.840Christine Van Gen is the litigation director at the Canadian Constitution Foundation.
00:01:40.700She was in the Toronto Appeals Court this week for a two-day hearing on the Emergencies Act
00:01:45.500appeal. Justice Mosley in 2024, January, ruled Prime Minister Justin Trudeau's invocation of
00:01:52.300the Emergencies Act, which included a crackdown on Freedom Convoy protesters and the freezing of
00:01:58.300bank accounts for participants and even donors was illegal. Within minutes, the Liberals filed
00:02:04.840an appeal. Christine is here today to discuss that appeal and what transpired in court this week.
00:02:10.840Christine, welcome to the show. Thanks for having me on. Oh, happy to have you.
00:02:15.500Can you fill in our viewers who may not be familiar with the Emergencies Act?
00:02:20.080Yeah, so just for background, this was a legal challenge to the Trudeau government's use of the Emergencies Act, which was invoked in response to the 2022 Freedom Convoy.
00:02:29.920You know, that was a protest. It was pretty noisy. Protesters were upset about a vaccine mandate for cross-border truckers and then more broadly about pandemic era restrictions that had gone on for quite a long time.
00:02:44.580they went to Ottawa and you know a lot of people agreed with the perspective of the the people who
00:02:54.420were engaged in the protest if they even if they didn't agree with the means deployed a lot of
00:03:00.800people did understand why these protesters were upset some of the means they engaged though
00:03:06.300included blockading roads and blockading six border crossings. So these protests went on for
00:03:15.100quite a while. Trudeau decided in response to this to invoke the Emergencies Act on February 14th,
00:03:23.5402022. They issued a proclamation that what was called a public order emergency existed under
00:03:31.660the Emergencies Act. This gave them the power to essentially create new criminal law by executive
00:03:38.440order, which is what they did. They created two types of measures. They created restrictions on
00:03:44.260assemblies that could be reasonably likely to breach the peace. And then they created economic
00:03:50.980measures. So the protest measures, the assembly measures banned traveling to assemblies that could
00:03:59.820reasonably lead to a breach of the peace, to be participating in them or to materially help those
00:04:06.340assemblies. And then violating those regulations carried a penalty of up to $5,000 and a prison
00:04:13.820term of up to five years. So these are pretty, pretty serious penalties. Then the financial
00:04:19.580measures required banks and financial institutions to freeze the accounts of people they had reason
00:04:28.500to believe belonged to a, quote, designated person. And a designated person was someone
00:04:34.700engaged either directly or indirectly in those prohibited protests. Those economic measures
00:04:40.440didn't come with any prior legal authorization, like a warrant. There was no appeal mechanism.
00:04:47.340And there was no way people could have any prior notice. There was no neutral third party to review
00:04:54.360whose accounts would be frozen. So we immediately challenged this. We said that the threshold to
00:05:00.980invoke the Emergencies Act was not met. There's actually, internal to the legislation, a number
00:05:06.560of provisions that explain exactly when it can be used for a public order emergency. There needs to
00:05:14.820be a threat to the security of Canada, and that's defined with reference to another piece of
00:05:20.520legislation called the CSIS Act. And it requires the existence of serious violence. And serious
00:05:26.920violence is a known term in law. It means violence to physical violence to people or property.
00:05:33.240And there also had to be a national emergency. That means that it was an emergency that could
00:05:40.160not be dealt with using existing legal tools or authority. We say that those thresholds were not
00:05:47.480met. And the regulations, those freezing accounts and the assembly restrictions, that those were
00:05:54.100unconstitutional. They violated the charter right to freedom of expression, assembly, and to be free
00:06:00.500from an unreasonable search. And at the lower court, Justice Mosley agreed with us that it was
00:06:06.500those thresholds had not been met, that the act was invoked illegally, and that the measures were
00:06:12.920a violation of the right to be free from an unreasonable search and the right to free
00:06:17.000expression so that's all that's everything that happened up until the appeal hearing and then we
00:06:22.960spent two days uh fighting the government who's trying to have that decision overturned wow there's
00:06:28.340so much to take in there and so you mentioned the c6 excuse me the csis act as i understand it the
00:06:35.100csis director actually also said that um the criteria was not met for invoking the emergencies
00:06:42.780Act. And the appeals court heard that again this week. Is that right?
00:06:46.720So what the CSIS director said, his name is David Vignon, he said that there was no threat to the
00:06:52.760security of Canada. Now, remember, the existence of a threat to the security of Canada is what's
00:06:58.200required to invoke this legislation. He said that none existed. Now, his decision is not
00:07:05.000determinative. But if the cabinet and the prime minister is going to come to a different conclusion,
00:07:12.120they need to be relying on something and they had the privy council office had told the prime
00:07:19.220minister they would you know since cesus says there's no threat to security of canada since
00:07:24.060the rcmp says legal tools are not exhausted since the national security and intelligence um
00:07:30.900uh the ncia i forget what the a stands for but uh her name is miss thompson she said that there was
00:07:38.020no uh no threat if they if they've all concluded this and these are the the the most informed
00:07:45.380people about intelligence in our country if they say there's no threat to the security of canada
00:07:49.700and you still want to invoke the act you need to be relying on something so the privy council
00:07:54.180office said to the prime minister we'll prepare you an alternative threat assessment and that was
00:07:58.660never done so for the decision for trudeau to invoke that act to be a reasonable decision which
00:08:04.260is what's required to use this legislation there needs to be something there you can't just have
00:08:10.340you can't just have the intelligence the entire intelligence community saying no threat and then
00:08:16.260reach your own conclusion based on no information that is not a reasonable decision and that seems
00:08:22.100that's what happened in this case there was no other information wow it sounds like the prime
00:08:28.340minister really took what was said by these professional bodies, the RCMP, CSIS, and just
00:08:34.900veered off and totally went his own way in invoking this. Yeah, that's what we say happened.
00:08:42.260If you're going to use this extraordinary law, you need to meet the threshold to use it. You can't
00:08:49.940use it on the basis of no information. There needs to be credible and real evidence that
00:08:56.900That's what the prime minister would be basing his decision on.
00:09:00.900Now, we think that the Emergencies Act should exist.
00:09:05.320Like, this is a law that is very important to be able to address things like wars, real insurrections, terrorist attacks.
00:09:13.660The government needs to be able to use a piece of legislation like this.
00:09:17.340But if they're going to use it, they need to have an actual reason to use it.
00:09:21.560And in this case, they didn't meet that threshold.
00:09:24.600They had no information they based their decision on.
00:09:26.900Wow, it does sound like it. So, Christine, in light of all this, in your professional opinion, did the federal government's lawyers present a sound argument this week for overturning Justice Mosley's decision?
00:09:40.540Well, look, I have my own perspective. We were in court defending Justice Mosley's decision.
00:09:45.960So, of course, I think that we did an amazing job defending this decision. And I think that the decision should be upheld.
00:09:52.940I think Justice Mosley's decision was reasonable. And he met all of the requirements of a judicial review. So, you know, what the Attorney General of Canada said, and by the way, this is not their government lawyer. They actually fired their government lawyer after spending nearly $2.3 million on the losing case at the court below.
00:10:13.440They went out and got a new lawyer, a much more expensive private sector lawyer, of course with taxpayer money, so I'm sure their new bill will be even higher, but their new lawyer said some pretty astonishing things, and I'll just give you an example.
00:10:32.380So, as I mentioned, the standard to invoke the Emergencies Act is a threat to the security of Canada, which requires the existence of serious violence.
00:10:45.540And that term, serious violence, is a term known in law.
00:10:49.680It means physical, real physical violence to people or property.
00:10:56.280And the federal government has consistently argued throughout this case that economic harm, you know, broad harm to our economy is the same thing as serious violence.
00:11:09.180So they have argued that the blockades at the border constitute serious violence because they were harmed to our economy.
00:11:16.500Now, if harming our economy was violence, I mean, I'm pretty sure I can think of a few politicians in this country who are engaged in murder, basically.
00:11:28.060But it's not. That's not what serious violence is.
00:11:32.140And he gave an example where he said, you know, if a person were to take a big rig truck and drive it into a booth at the border, a security booth at the border, that would be serious violence.
00:11:49.740Of course, I agree. That's a very dangerous thing to do. And it's the physical destruction of property. That would be serious violence.
00:11:56.940And he said, but can anyone seriously sit here and, and say to take the same big rig truck and
00:12:03.620park it across the road is not exactly the same thing and maybe even worse. And you know, hi,
00:12:12.260I would say that it's not the same thing. Destroying a building and blowing it up is not
00:12:18.520the same thing as blocking a road. It's just, it's not this, it's not the same thing. And it
00:12:24.400was an absurd analogy that I think undermined the Attorney General of Canada's position because
00:12:30.420no one sitting in that courtroom could possibly, I can't imagine that he even agrees with that
00:12:36.540analogy. That's just not what serious violence is. Yeah, absolutely. And that's a really a
00:12:43.840common sense thing that in the courtroom or not, that that's easily distinguishable. And, you know,
00:12:49.300it reminds me of um the civil cases that are happening from the ottawa from the ottawa protest
00:12:56.180time as well as the tamara leach and chris barber case where there were all of these allegations0.92
00:13:01.380about the horn honking the noise and the smells and you know the um rhetoric that could have been
00:13:09.060offensive and all of this was also like try they were trying to argue that this was violence and
00:13:14.980that this was debt to their well-beings and so we just we see a lot of uh convoluted allegations
00:13:22.260that are mixing up what is lawful and what is not what might just be irritating for someone if they
00:13:28.620don't like you know their ideology or their perspective and look i want all right go ahead
00:13:34.540i want to be clear that i i support the right to protest but it is not blockading a road is not
00:13:44.100with something that you can do without facing police consequences. And I believe in the right
00:13:51.280to protest, and I believe in the rule of law. And I do believe that ending blockades, like
00:13:56.620border blockades, as well as the blockade on Wellington Street, was a perfectly legitimate0.80
00:14:02.320use of police power. The question for us at federal court and at the Federal Court of Appeal
00:14:08.320was the threshold to invoke the Emergencies Act met, or could this have been resolved with
00:14:15.000existing police power? Now, let's look at the most serious case from this whole episode, which was
00:14:22.180the discovery of weapons at Coutts, which led to certain criminal charges for some individuals.
00:14:28.960I think there was some overcharging in Coutts. There were not convictions on everything that
00:14:34.200was charged. But certainly the discovery of a large cache of weapons and ammunition at that site,
00:14:43.400it's criminal. So the question though is, could that have been addressed using existing legal
00:14:52.980tools and authority or was the Emergencies Act needed? Well, the entire situation in Kootz was
00:14:59.080discovered using existing police powers and it was dealt with using existing police powers and
00:15:04.860the premier of alberta at the time jason kenney said the situation in coots is completely under
00:15:10.300control and we have no need for the invocation of emergency measures under the emergencies act
00:15:16.040in alberta because we have this under control we don't need the federal government using these
00:15:22.320tools in our jurisdiction. So that's part of the threshold. The question about whether or not the
00:15:29.320Emergencies Act can be used requires the federal government to show that existing provincial
00:15:36.860legal tools or the criminal code or provincial authority had been, that authority and that
00:15:43.520capacity had been exceeded. And it's on its face evident because the most serious situation was
00:15:49.720resolved with existing tools and authority, that that threshold wasn't met. The most serious
00:15:55.180situation was resolved using ordinary police powers. I see. So it sounds like there's all
00:16:03.180kinds of other ways that these protests and even the border blockades could have been dealt with
00:16:10.040short of calling the Emergencies Act. And so that reminds me of something that you said in your
00:16:16.240synopsis about how Trudeau's lawyers went so far to mischaracterize your organization and those
00:16:26.980that are supporting Justice Mosley's decision in court this week where they said that you falsely
00:16:34.740said that you said your organization said well we could just call the army in rather than invoking
00:16:41.180the emergencies act but you didn't actually say that and you mentioned in the synopsis that Chief
00:16:45.960justice was even bewildered as to where that could have come from. So what does this mischaracterization
00:16:52.080about your group and just about this situation in general say about this case that the Attorney
00:16:58.860General is attempting to build on behalf of the Trudeau Liberals? It says that they're overstating
00:17:04.860things. And by mischaracterizing us, what they're doing is building up a straw man so it can be
00:17:10.800easily taken down because they're unwilling and unable to grapple with the actual legal arguments
00:17:16.240that we have put forward. It's a lot easier to say that we said something we never did
00:17:22.340and criticize that than deal with the actual challenging legal arguments that we've put
00:17:26.700forward. So what happened was the lawyer for the attorney general said that the Canadian
00:17:33.560Constitution Foundation were sitting here, you know, two years later, and they're thinking of
00:17:38.900all these other things that could have been done or should have been done differently instead of
00:17:43.020using the the emergencies act and shockingly the civil liberties group said that we could have even
00:17:48.740called in the army uh and yeah just exactly as you described the chief justice said what are you
00:17:54.100talking about and our lawyer jumped up and he said we never said that i do know where that came from
00:17:59.180though another civil liberties organization called the canadian civil liberties association
00:18:04.040had mentioned in their factum as part of existing capacity, the federal government could have
00:18:10.920borrowed towing equipment from the Canadian military because the Canadian military has large
00:18:17.820heavy duty towing equipment that they say could have been brought in. And that should be considered
00:18:24.000as a resource under existing capacity, existing legal tools and resources. So they sort of
00:18:31.260mentioned the military, but they weren't calling for the military to be brought in. That's what
00:18:38.300the Prime Minister, Justin Trudeau's father actually did during the invocation of the War
00:18:45.080Measures Act, which is the much more dangerous piece of legislation that the Emergencies Act
00:18:52.740replaced. And the entire purpose of the Emergencies Act, which is the law we're dealing with now,
00:18:58.380the whole reason it was enacted was to prevent the type of abuse we saw this prime minister's
00:19:06.240father engage in in the 1970s. So it was created with all of these special thresholds to make sure
00:19:15.940it was only used in the proper circumstances so it couldn't be abused again. And yet here we are.
00:19:24.020here we are yeah what a pattern you I mean you can't make this stuff up
00:19:28.380yeah I mean there's that expression that history doesn't repeat itself
00:19:32.900but it rhymes and you know Trudeau rhymes with Trudeau
00:19:37.340I think in this case you might even be able to say that it does
00:19:42.060repeat itself given everything that you just said and there certainly is a rhyme but you know I
00:19:49.560don't think anyone is dancing to that kind of tune. So before we wrap this up I think that you
00:19:55.320know the most pertinent question here is what are the next steps in this appeal and maybe even more
00:20:00.720importantly is will any elected officials including Trudeau himself including former
00:20:06.940finance minister Christia Freeland will they be held personally accountable and what happens if
00:20:13.680Justice Mosley does uphold his decision that this was unlawful will there be any consequences?
00:20:18.500So the consequence would be that this creates a binding precedent that will prevent future governments from doing this type of abusive thing again in the future.
00:20:30.080This is the first time the law was ever used. So this is the first time the law has ever been interpreted by a court.
00:20:40.480So that will dictate how the government or should dictate how the government uses it or doesn't use it in the future.
00:20:48.500For personal accountability, the recourse we have for that is in the voting booth. So if people are unhappy with what the prime minister did in this case, they can vote for a different prime minister.
00:21:01.640There is some possibility of civil recourse for people who had their bank accounts frozen and were hurt by this, because, of course, if your bank account's frozen, you may be unable to pay your bills.
00:21:13.420You may have your credit rating impacted. This could cause harm to people. And so I know there
00:21:19.240are lawsuits underway on those issues. We're not involved in those. In terms of next steps,
00:21:26.460the decision is at the Federal Court of Appeal. We typically expect a case to take about six
00:21:33.320months for a decision, but there's never any promise on that. This case might take a little
00:21:38.800bit longer because it's an especially complicated case. I think Justice Mosley might have taken
00:21:43.740eight to 10 months for his decision. In this case, as a federal court decision, I believe will need
00:21:49.220to be translated into French before it can be released. An interesting question is about an
00:21:55.220appeal of whatever this decision is. Now, if there is, whatever happens, I mean, we're going to get
00:22:02.180a result. If we at the Canadian Constitution Foundation are successful and the court upholds
00:22:09.620the ruling that the use of this law was illegal and unconstitutional, if there is a new government
00:22:15.980in power, like a conservative government, the conservative government has been very consistent
00:22:22.260in their view that Trudeau should not have done this. So we don't know what a conservative
00:22:30.460of government might do. But if we're successful, they may not appeal the case, because I think
00:22:35.860that they agree with us. So this, if there's a new government, and we win, it may never get to
00:22:41.280the Supreme Court. If we lose, then of course, we would appeal and that would go to the Supreme
00:22:46.400Court. But you know, a lot of a lot of things could happen in the next in the next six months.
00:22:50.960So yeah, we're just waiting to see what the outcome will be. And we think it went really
00:22:56.860well we're very optimistic awesome it sure does sound like it i've certainly been following along
00:23:02.620i've actually been tuned in uh through the zoom link myself uh watching what's been going on in
00:23:08.220court and i totally agree with you with much what you were saying about uh about the trudeau's
00:23:15.420lawyers the attorney general kind of uh clutching at straws uh trying trying to build a straw man
00:23:22.220argument as you say just to tear it down so we'll certainly be following this as uh as we wait for
00:23:28.460justice mosley justice mosley's decision on the appeal and thanks so much for joining us today
00:23:34.940christine and for your work uh representing canadians through the canadian constitution
00:23:40.700Foundation as well. So thank you and take care. Thank you. Thanks.