Canada’s Use of Emergency Powers to End Trucker Protests Was Unconstitutional, Judge Rules
Liberal government plans appeal of ruling on use of extraordinary powers to halt demonstrations over Covid-19 vaccine mandates
By Paul Vieira
Jan. 23, 2024 3:33 pm ET
OTTAWA—A Canadian judge ruled Tuesday that Prime Minister Justin Trudeau violated the country’s constitution when he invoked extraordinary powers in 2022 to end a weekslong protest in the capital against Covid-19 vaccine mandates.
The Federal Court of Canada ruling marks the latest setback for Trudeau’s Liberal government, which is struggling in public-opinion polls with an election over a year away. The protests in Ottawa were led by the so-called Freedom Convoy, a group of truck drivers and tens of thousands of other individuals who said they were fed up with the social restrictions and vaccine mandates meant to contain the spread of Covid-19. The protest in the capital spawned copycat demonstrations at certain U.S.-Canada border crossings in the provinces of Alberta and Ontario, and abroad, like in New Zealand.
Canadian officials said Tuesday they would appeal the ruling from Justice Richard Mosley. Legal watchers say the case likely ends up with the Supreme Court of Canada, which may have to decide that either the Trudeau government’s use of the Emergencies Act was justified, or if not what limits future governments face in trying to invoke such powers.
Justice Mosley said the Trudeau’s government use of the federal Emergencies Act “does not bear the hallmarks of reasonableness—justification, transparency and intelligibility—and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration.” He said the use of emergency powers “infringed” on provisions in the constitution.
The judge said the Trudeau government argued emergency powers were required because of a national-security threat prevalent across Canada. Protesters sympathetic to the Freedom Convoy cause popped up in Coutts, Alberta, and Windsor, Ontario, to temporarily thwart commercial and passenger transit between Canada and the U.S. Police in those jurisdictions eventually removed the protesters.
Judge Mosley said the government’s characterization of the security threat “was, in my view, an overstatement of the situation known.” While the Trudeau administration was worried about the threat of other protests at border crossings, the judge said “the evidence available to cabinet was that these were being dealt with by local and provincial authorities, through arrests and superior court injunctions, aside from the impasse which remained in Ottawa.”
At the time, critics of the use of emergency powers said the government unnecessarily usurped people’s rights for what was essentially a policing issue contained to one city, Ottawa. Among the measures temporarily invoked was the freezing of bank accounts and other assets belonging to convoy protesters.
The Canadian Civil Liberties Association, one of the plaintiffs challenging the use of emergency powers, said the federal court decision “sets a clear and critical precedent for every future government” seeking to use the Emergencies Act.
Canadian Finance Minister Chrystia Freeland told reporters in Montreal that, at the time the emergency powers were invoked, “our national security, which includes our national economic security, was under threat. We were convinced at the time, and I was convinced at the time, it was the right thing to do.” She said an appeal was forthcoming.
Last year, a judicial inquiry said that the Freedom Convoy protest was the result of simmering social, economic and political grievances exacerbated by the pandemic. In the end, the inquiry concluded, Trudeau was justified in invoking emergency powers because senior officials had information about threats “of serious violence,” adding a series of local policing mistakes “contributed to a situation that spun out of control.”
Write to Paul Vieira at paul.vieira@wsj.com
