Western Standard - Inside Trudeau's Emergencies Act Appeal

00:00:00.000 good evening western standard viewers and welcome to hannaford a weekly politics show i'm jen

00:00:27.520 Hudson, filling in for Nigel Hannaford this week. It's Thursday, February 6th, 2025,

00:00:34.400 and my guest today is Christine Van Gein, Litigation Director at the Canadian Constitution

00:00:41.280 Foundation. Today we're going to be talking about the federal government's appeal to the January

00:00:47.120 2024 ruling that the invocation of the Emergencies Act on peaceful protesters on Parliament Hill

00:00:53.920 during the Freedom Convoy in 2022 was unlawful. But first, a word from our sponsors.

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00:01:34.840 Christine Van Gen is the litigation director at the Canadian Constitution Foundation.

00:01:40.700 She was in the Toronto Appeals Court this week for a two-day hearing on the Emergencies Act

00:01:45.500 appeal. Justice Mosley in 2024, January, ruled Prime Minister Justin Trudeau's invocation of

00:01:52.300 the Emergencies Act, which included a crackdown on Freedom Convoy protesters and the freezing of

00:01:58.300 bank accounts for participants and even donors was illegal. Within minutes, the Liberals filed

00:02:04.840 an appeal. Christine is here today to discuss that appeal and what transpired in court this week.

00:02:10.840 Christine, welcome to the show. Thanks for having me on. Oh, happy to have you.

00:02:15.500 Can you fill in our viewers who may not be familiar with the Emergencies Act?

00:02:20.080 Yeah, 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.

00:02:29.920 You 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.

00:02:44.580 they went to Ottawa and you know a lot of people agreed with the perspective of the the people who

00:02:54.420 were engaged in the protest if they even if they didn't agree with the means deployed a lot of

00:03:00.800 people did understand why these protesters were upset some of the means they engaged though

00:03:06.300 included blockading roads and blockading six border crossings. So these protests went on for

00:03:15.100 quite a while. Trudeau decided in response to this to invoke the Emergencies Act on February 14th,

00:03:23.540 2022. They issued a proclamation that what was called a public order emergency existed under

00:03:31.660 the Emergencies Act. This gave them the power to essentially create new criminal law by executive

00:03:38.440 order, which is what they did. They created two types of measures. They created restrictions on

00:03:44.260 assemblies that could be reasonably likely to breach the peace. And then they created economic

00:03:50.980 measures. So the protest measures, the assembly measures banned traveling to assemblies that could

00:03:59.820 reasonably lead to a breach of the peace, to be participating in them or to materially help those

00:04:06.340 assemblies. And then violating those regulations carried a penalty of up to $5,000 and a prison

00:04:13.820 term of up to five years. So these are pretty, pretty serious penalties. Then the financial

00:04:19.580 measures required banks and financial institutions to freeze the accounts of people they had reason

00:04:28.500 to believe belonged to a, quote, designated person. And a designated person was someone

00:04:34.700 engaged either directly or indirectly in those prohibited protests. Those economic measures

00:04:40.440 didn't come with any prior legal authorization, like a warrant. There was no appeal mechanism.

00:04:47.340 And there was no way people could have any prior notice. There was no neutral third party to review

00:04:54.360 whose accounts would be frozen. So we immediately challenged this. We said that the threshold to

00:05:00.980 invoke the Emergencies Act was not met. There's actually, internal to the legislation, a number

00:05:06.560 of provisions that explain exactly when it can be used for a public order emergency. There needs to

00:05:14.820 be a threat to the security of Canada, and that's defined with reference to another piece of

00:05:20.520 legislation called the CSIS Act. And it requires the existence of serious violence. And serious

00:05:26.920 violence is a known term in law. It means violence to physical violence to people or property.

00:05:33.240 And there also had to be a national emergency. That means that it was an emergency that could

00:05:40.160 not be dealt with using existing legal tools or authority. We say that those thresholds were not

00:05:47.480 met. And the regulations, those freezing accounts and the assembly restrictions, that those were

00:05:54.100 unconstitutional. They violated the charter right to freedom of expression, assembly, and to be free

00:06:00.500 from an unreasonable search. And at the lower court, Justice Mosley agreed with us that it was

00:06:06.500 those thresholds had not been met, that the act was invoked illegally, and that the measures were

00:06:12.920 a violation of the right to be free from an unreasonable search and the right to free

00:06:17.000 expression so that's all that's everything that happened up until the appeal hearing and then we

00:06:22.960 spent two days uh fighting the government who's trying to have that decision overturned wow there's

00:06:28.340 so much to take in there and so you mentioned the c6 excuse me the csis act as i understand it the

00:06:35.100 csis director actually also said that um the criteria was not met for invoking the emergencies

00:06:42.780 Act. And the appeals court heard that again this week. Is that right?

00:06:46.720 So what the CSIS director said, his name is David Vignon, he said that there was no threat to the

00:06:52.760 security of Canada. Now, remember, the existence of a threat to the security of Canada is what's

00:06:58.200 required to invoke this legislation. He said that none existed. Now, his decision is not

00:07:05.000 determinative. But if the cabinet and the prime minister is going to come to a different conclusion,

00:07:12.120 they need to be relying on something and they had the privy council office had told the prime

00:07:19.220 minister they would you know since cesus says there's no threat to security of canada since

00:07:24.060 the rcmp says legal tools are not exhausted since the national security and intelligence um

00:07:30.900 uh the ncia i forget what the a stands for but uh her name is miss thompson she said that there was

00:07:38.020 no uh no threat if they if they've all concluded this and these are the the the most informed

00:07:45.380 people about intelligence in our country if they say there's no threat to the security of canada

00:07:49.700 and you still want to invoke the act you need to be relying on something so the privy council

00:07:54.180 office said to the prime minister we'll prepare you an alternative threat assessment and that was

00:07:58.660 never done so for the decision for trudeau to invoke that act to be a reasonable decision which

00:08:04.260 is what's required to use this legislation there needs to be something there you can't just have

00:08:10.340 you can't just have the intelligence the entire intelligence community saying no threat and then

00:08:16.260 reach your own conclusion based on no information that is not a reasonable decision and that seems

00:08:22.100 that's what happened in this case there was no other information wow it sounds like the prime

00:08:28.340 minister really took what was said by these professional bodies, the RCMP, CSIS, and just

00:08:34.900 veered off and totally went his own way in invoking this. Yeah, that's what we say happened.

00:08:42.260 If you're going to use this extraordinary law, you need to meet the threshold to use it. You can't

00:08:49.940 use it on the basis of no information. There needs to be credible and real evidence that

00:08:56.900 That's what the prime minister would be basing his decision on.

00:09:00.900 Now, we think that the Emergencies Act should exist.

00:09:05.320 Like, this is a law that is very important to be able to address things like wars, real insurrections, terrorist attacks.

00:09:13.660 The government needs to be able to use a piece of legislation like this.

00:09:17.340 But if they're going to use it, they need to have an actual reason to use it.

00:09:21.560 And in this case, they didn't meet that threshold.

00:09:24.600 They had no information they based their decision on.

00:09:26.900 Wow, 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?

00:09:40.540 Well, look, I have my own perspective. We were in court defending Justice Mosley's decision.

00:09:45.960 So, of course, I think that we did an amazing job defending this decision. And I think that the decision should be upheld.

00:09:52.940 I 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.

00:10:13.440 They 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.

00:10:32.380 So, 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.

00:10:45.540 And that term, serious violence, is a term known in law.

00:10:49.680 It means physical, real physical violence to people or property.

00:10:56.280 And 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.

00:11:09.180 So they have argued that the blockades at the border constitute serious violence because they were harmed to our economy.

00:11:16.500 Now, 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.

00:11:28.060 But it's not. That's not what serious violence is.

00:11:32.140 And 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.

00:11:49.740 Of course, I agree. That's a very dangerous thing to do. And it's the physical destruction of property. That would be serious violence.

00:11:56.940 And he said, but can anyone seriously sit here and, and say to take the same big rig truck and

00:12:03.620 park it across the road is not exactly the same thing and maybe even worse. And you know, hi,

00:12:12.260 I would say that it's not the same thing. Destroying a building and blowing it up is not

00:12:18.520 the same thing as blocking a road. It's just, it's not this, it's not the same thing. And it

00:12:24.400 was an absurd analogy that I think undermined the Attorney General of Canada's position because

00:12:30.420 no one sitting in that courtroom could possibly, I can't imagine that he even agrees with that

00:12:36.540 analogy. That's just not what serious violence is. Yeah, absolutely. And that's a really a

00:12:43.840 common sense thing that in the courtroom or not, that that's easily distinguishable. And, you know,

00:12:49.300 it reminds me of um the civil cases that are happening from the ottawa from the ottawa protest

00:12:56.180 time as well as the tamara leach and chris barber case where there were all of these allegations 0.92

00:13:01.380 about the horn honking the noise and the smells and you know the um rhetoric that could have been

00:13:09.060 offensive and all of this was also like try they were trying to argue that this was violence and

00:13:14.980 that this was debt to their well-beings and so we just we see a lot of uh convoluted allegations

00:13:22.260 that are mixing up what is lawful and what is not what might just be irritating for someone if they

00:13:28.620 don't like you know their ideology or their perspective and look i want all right go ahead

00:13:34.540 i want to be clear that i i support the right to protest but it is not blockading a road is not

00:13:44.100 with something that you can do without facing police consequences. And I believe in the right

00:13:51.280 to protest, and I believe in the rule of law. And I do believe that ending blockades, like

00:13:56.620 border blockades, as well as the blockade on Wellington Street, was a perfectly legitimate 0.80

00:14:02.320 use of police power. The question for us at federal court and at the Federal Court of Appeal

00:14:08.320 was the threshold to invoke the Emergencies Act met, or could this have been resolved with

00:14:15.000 existing police power? Now, let's look at the most serious case from this whole episode, which was

00:14:22.180 the discovery of weapons at Coutts, which led to certain criminal charges for some individuals.

00:14:28.960 I think there was some overcharging in Coutts. There were not convictions on everything that

00:14:34.200 was charged. But certainly the discovery of a large cache of weapons and ammunition at that site,

00:14:43.400 it's criminal. So the question though is, could that have been addressed using existing legal

00:14:52.980 tools and authority or was the Emergencies Act needed? Well, the entire situation in Kootz was

00:14:59.080 discovered using existing police powers and it was dealt with using existing police powers and

00:15:04.860 the premier of alberta at the time jason kenney said the situation in coots is completely under

00:15:10.300 control and we have no need for the invocation of emergency measures under the emergencies act

00:15:16.040 in alberta because we have this under control we don't need the federal government using these

00:15:22.320 tools in our jurisdiction. So that's part of the threshold. The question about whether or not the

00:15:29.320 Emergencies Act can be used requires the federal government to show that existing provincial

00:15:36.860 legal tools or the criminal code or provincial authority had been, that authority and that

00:15:43.520 capacity had been exceeded. And it's on its face evident because the most serious situation was

00:15:49.720 resolved with existing tools and authority, that that threshold wasn't met. The most serious

00:15:55.180 situation was resolved using ordinary police powers. I see. So it sounds like there's all

00:16:03.180 kinds of other ways that these protests and even the border blockades could have been dealt with

00:16:10.040 short of calling the Emergencies Act. And so that reminds me of something that you said in your

00:16:16.240 synopsis about how Trudeau's lawyers went so far to mischaracterize your organization and those

00:16:26.980 that are supporting Justice Mosley's decision in court this week where they said that you falsely

00:16:34.740 said that you said your organization said well we could just call the army in rather than invoking

00:16:41.180 the emergencies act but you didn't actually say that and you mentioned in the synopsis that Chief

00:16:45.960 justice was even bewildered as to where that could have come from. So what does this mischaracterization

00:16:52.080 about your group and just about this situation in general say about this case that the Attorney

00:16:58.860 General is attempting to build on behalf of the Trudeau Liberals? It says that they're overstating

00:17:04.860 things. And by mischaracterizing us, what they're doing is building up a straw man so it can be

00:17:10.800 easily taken down because they're unwilling and unable to grapple with the actual legal arguments

00:17:16.240 that we have put forward. It's a lot easier to say that we said something we never did

00:17:22.340 and criticize that than deal with the actual challenging legal arguments that we've put

00:17:26.700 forward. So what happened was the lawyer for the attorney general said that the Canadian

00:17:33.560 Constitution Foundation were sitting here, you know, two years later, and they're thinking of

00:17:38.900 all these other things that could have been done or should have been done differently instead of

00:17:43.020 using the the emergencies act and shockingly the civil liberties group said that we could have even

00:17:48.740 called in the army uh and yeah just exactly as you described the chief justice said what are you

00:17:54.100 talking about and our lawyer jumped up and he said we never said that i do know where that came from

00:17:59.180 though another civil liberties organization called the canadian civil liberties association

00:18:04.040 had mentioned in their factum as part of existing capacity, the federal government could have

00:18:10.920 borrowed towing equipment from the Canadian military because the Canadian military has large

00:18:17.820 heavy duty towing equipment that they say could have been brought in. And that should be considered

00:18:24.000 as a resource under existing capacity, existing legal tools and resources. So they sort of

00:18:31.260 mentioned the military, but they weren't calling for the military to be brought in. That's what

00:18:38.300 the Prime Minister, Justin Trudeau's father actually did during the invocation of the War

00:18:45.080 Measures Act, which is the much more dangerous piece of legislation that the Emergencies Act

00:18:52.740 replaced. And the entire purpose of the Emergencies Act, which is the law we're dealing with now,

00:18:58.380 the whole reason it was enacted was to prevent the type of abuse we saw this prime minister's

00:19:06.240 father engage in in the 1970s. So it was created with all of these special thresholds to make sure

00:19:15.940 it was only used in the proper circumstances so it couldn't be abused again. And yet here we are.

00:19:24.020 here we are yeah what a pattern you I mean you can't make this stuff up

00:19:28.380 yeah I mean there's that expression that history doesn't repeat itself

00:19:32.900 but it rhymes and you know Trudeau rhymes with Trudeau

00:19:37.340 I think in this case you might even be able to say that it does

00:19:42.060 repeat itself given everything that you just said and there certainly is a rhyme but you know I

00:19:49.560 don't think anyone is dancing to that kind of tune. So before we wrap this up I think that you

00:19:55.320 know the most pertinent question here is what are the next steps in this appeal and maybe even more

00:20:00.720 importantly is will any elected officials including Trudeau himself including former

00:20:06.940 finance minister Christia Freeland will they be held personally accountable and what happens if

00:20:13.680 Justice Mosley does uphold his decision that this was unlawful will there be any consequences?

00:20:18.500 So 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.

00:20:30.080 This is the first time the law was ever used. So this is the first time the law has ever been interpreted by a court.

00:20:40.480 So that will dictate how the government or should dictate how the government uses it or doesn't use it in the future.

00:20:48.500 For 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.

00:21:01.640 There 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.

00:21:13.420 You may have your credit rating impacted. This could cause harm to people. And so I know there

00:21:19.240 are lawsuits underway on those issues. We're not involved in those. In terms of next steps,

00:21:26.460 the decision is at the Federal Court of Appeal. We typically expect a case to take about six

00:21:33.320 months for a decision, but there's never any promise on that. This case might take a little

00:21:38.800 bit longer because it's an especially complicated case. I think Justice Mosley might have taken

00:21:43.740 eight to 10 months for his decision. In this case, as a federal court decision, I believe will need

00:21:49.220 to be translated into French before it can be released. An interesting question is about an

00:21:55.220 appeal of whatever this decision is. Now, if there is, whatever happens, I mean, we're going to get

00:22:02.180 a result. If we at the Canadian Constitution Foundation are successful and the court upholds

00:22:09.620 the ruling that the use of this law was illegal and unconstitutional, if there is a new government

00:22:15.980 in power, like a conservative government, the conservative government has been very consistent

00:22:22.260 in their view that Trudeau should not have done this. So we don't know what a conservative

00:22:30.460 of government might do. But if we're successful, they may not appeal the case, because I think

00:22:35.860 that they agree with us. So this, if there's a new government, and we win, it may never get to

00:22:41.280 the Supreme Court. If we lose, then of course, we would appeal and that would go to the Supreme

00:22:46.400 Court. But you know, a lot of a lot of things could happen in the next in the next six months.

00:22:50.960 So yeah, we're just waiting to see what the outcome will be. And we think it went really

00:22:56.860 well we're very optimistic awesome it sure does sound like it i've certainly been following along

00:23:02.620 i've actually been tuned in uh through the zoom link myself uh watching what's been going on in

00:23:08.220 court and i totally agree with you with much what you were saying about uh about the trudeau's

00:23:15.420 lawyers the attorney general kind of uh clutching at straws uh trying trying to build a straw man

00:23:22.220 argument as you say just to tear it down so we'll certainly be following this as uh as we wait for

00:23:28.460 justice mosley justice mosley's decision on the appeal and thanks so much for joining us today

00:23:34.940 christine and for your work uh representing canadians through the canadian constitution

00:23:40.700 Foundation as well. So thank you and take care. Thank you. Thanks.

Western Standard - February 07, 2025

Inside Trudeau's Emergencies Act Appeal

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