Trudeau government rejects court challenges, defends use of Emergencies Act to end ‘Freedom Convoy’

OTTAWA—The federal court has no business rehashing the Liberal government’s controversial decision to use the Emergencies Act to quash last year’s so-called “Freedom Convoy” protests, according to justice department lawyers.

In a written argument filed in court this week, lawyers representing Attorney General David Lametti are trying to convince a federal judge to toss out four separate legal challenges of the unprecedented move.

Taken together, the challenges threaten to relitigate contentious issues raked over during a recently-concluded public inquiry, as civil liberties groups and opponents of pandemic health measures argue the real verdict on whether the decision was legal and justified should come from the courts.

Now, the government has submitted its formal response, arguing the invocation of the Emergencies Act was “reasonable” and “constitutional.” It says the move was based on well-founded fears the protest crisis could spark “serious” politically-motivated violence, and that the bar should be high for the courts to “step into the shoes” of Prime Minister Justin Trudeau and his cabinet to revisit that decision.

“This deference is consistent with the constitutional principles underlying Parliament’s jurisdiction in emergency situations, and the scope given in assessing national security threats,” government lawyers wrote.

Context surrounding the decision is also “crucial,” the lawyers argued. According to them, the threshold for a judicial review should be based on whether that context created a reasonable belief the Emergencies Act was warranted — which they argue it did.

That’s because the crisis — which included a three-week protest occupation of trucks and encampments around Parliament Hill, as well as border blockades across the country — grew beyond the ability of police to effectively respond, with a national breadth that required a federal response, the lawyers wrote.

The crisis also posed a risk of “serious” political violence, which was one of the conditions required to trigger the Emergencies Act, they argued.

As Ontario Justice Paul Rouleau concluded in the final report of the public inquiry into the decision last month, the protests included threats to assassinate public officials, the government lawyers wrote. On top of that, they pointed to how RCMP arrested 11 people and seized a cache of guns and body armour at a convoy blockade in southern Alberta just before the government triggered the Emergencies Act.

“There were considerable cumulative threats of serious violence to individuals, including the threat of lethal violence,” the lawyers wrote.

They also argued that blockades of “critical infrastructure,” such as the Ambassador Bridge between Windsor and Detroit, should be considered a form of “serious” violence, because of its impact on the economy and Canada’s international trade reputation, and the potential to create shortages of food and medicine.

And the potential alone for serious political violence was enough, the lawyers argued, since — according to their submission — the Emergencies Act was designed to protect Canadians from “prospective” harms that fall “well short” of the threat of death.

The new court submission also defends the extraordinary police powers created through the act, including a ban on public assemblies that could breach the public peace, the creation of restricted areas where protests were outlawed, and a requirement for banks to freeze protest participants’ accounts.

These powers were designed to be minimally “drastic” in order to effectively end the crisis, the lawyers argued. They also said constitutional rights to free expression and assembly remained intact because of the bans’ narrow scope.

And even if some rights were limited, “any infringement was minimal, temporary, and justified in light of the unfolding public order emergency,” the lawyers argued.

The new federal argument refers several times to Rouleau’s report from the Emergencies Act inquiry. Tabled in Parliament last month, Rouleau concluded — “with reluctance” — that the government’s use of the Emergencies Act was justified. At the same time, however, he slammed governments for indulging in political squabbling in what amounted to a “failure of federalism.” That, combined with police shortcomings, escalated the situation to a bona fide national emergency that should have been avoidable, Rouleau concluded.

He also said, in releasing the report, that a reasonable person could look at the same situation and conclude the invocation was inappropriate.

Civil liberties groups spearheading the court challenges — including the Canadian Civil Liberties Association and Canadian Constitution Foundation — have argued the government didn’t need to invoke the Emergencies Act. They also contend it violated constitutional rights in doing so.

A hearing in their judicial review applications is set to take place in Ottawa in early April.

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