Liberals not above the law
Of course the Liberals are going to appeal the Federal Court’s ruling, issued Tuesday, that their use of the Emergencies Act in February 2022 was unjustified. They have barely even tried to persuade the public, or the courts, that their choice to declare a national emergency met the standard set out in law. They just want to be cleared for going outside those legal bounds. That is, the Liberals want the courts to clear a political decision to violate the law.
The Liberals clearly hoped that the Federal Court would agree that they were correct to trigger the Emergencies Act — either on the ground that a national emergency had arisen, or alternatively, on the ground that “threats to the security of Canada” were strong enough to warrant emergency powers. As it happens, the court sided with civil liberties groups that challenged the government.
National emergencies, however, are national-in-scope problems of such urgency that they “cannot be effectively dealt with under any other law of Canada.” This clearly couldn’t be the case, Justice Richard Mosley pointed out, as the provinces proved capable of managing the protests (with the exception of Ottawa, which was local in scope).
But the Emergencies Act can be invoked if there is enough evidence to believe a broader “threat to the security of Canada” has arisen, which the Liberals argued existed. Had the law not defined what a “threat” entailed in writing, the judge conceded they may have succeeded.
The Emergencies Act imports the Canadian Security Intelligence Service Act definition of “threats to the security of Canada,” which specifies that such threats must be “directed toward or in support of the threat or use of acts of serious violence against persons or property.”
The keyword: serious violence.
No one within government — the prime minister, his cabinet ministers or their advisers — thinks the Freedom Convoy protests fit the legal definition of a threat to national security as it’s written. Trudeau even admitted this when testifying at the public inquiry: “The fact that there was not yet any serious violence that had been noted was obviously a good thing, but we could not say that there was no potential for serious violence, for serious violence to happen over the coming days.”
Instead, advisers argued that the definitions in law should be disregarded altogether. Trudeau’s National Security Advisor Jody Thomas testified that “there are other definitions of threats to the security of Canada.” CSIS director David Vigneault agreed and told the inquiry he recommended using the Emergencies Act even though the convoy did not rise to be a “threat to the security of Canada,” as defined in law.
These arguments did not persuade the judge. “The words ‘threats to the security of Canada’ do not stand alone in the Act and must be interpreted with reference to the meaning of that term” found in the CSIS Act, Mosley argued.
Absent true threats to security, the proclamation invoking the act cited “the adverse effects on the Canadian economy,” which was of serious concern, but completely beside the point.
“The harm being caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property,” Mosley wrote.
The Liberals, unable to point to actual serious violence, also tried to focus on the threat. Similar to Trudeau’s testimony to the inquiry, the order-in-council declaring a national emergency referred to the “potential” for violence.
But legally, that falls far short of the legal standard.
“The potential for serious violence, or being unable to say that there was no potential for serious violence was, of course, a valid reason for concern” Mosley wrote. “But in my view, it did not satisfy the test required to invoke the Act.”
Finally, the Liberals had an evidence problem. The law requires cabinet to have “reasonable grounds” to believe it could invoke the act — that is, a basis of “compelling and credible information.” The federal legal team argued for a fuzzier standard, that of “whether it was reasonable for the (government) to have an objective basis for its belief that the requirements of a public-order emergency were met.”
In rejecting that reasoning, Mosley added, in reference to the Coutts, Alta., border blockade where a cache of guns had been found, that, “There was no evidence of a similar ‘hardened cell’ elsewhere in the country, only speculation, and the situation at Coutts had been resolved without violence.”
During the early weeks of 2022, there was a genuine crisis brought on by a breakdown of law and order. Most everyone, with the exception of the protesters themselves perhaps, would agree with this assessment, and Mosley accepts it, almost without question.
But that doesn’t mean the protests rose to the level of a national emergency, or that there were genuine threats of serious violence, specifically in Ottawa, or anywhere outside Coutts. Again, everyone appears to be in agreement on this.
If the government truly believed it met the test for invoking the act, it would not have repeatedly tried to use more fluid interpretations of the law.
Ultimately, what the case came down to is whether the government is free to ignore legislation or not, whether it is above the law or not.
So the Liberals will appeal, but even if they lose, it is not like they were interested in following the law in the first place.
THE CONVOY DID NOT RISE TO BE A ‘THREAT TO THE SECURITY OF CANADA.’