It took a 74 year old long-time lawyer and Justice, having spent a lifetime in security related matters, someone with two feet clearly planted on the ground, to finally call out the Liberals and their authoritarian ways. In the past week, Federal Court Justice Richard Mosley finally righted the wrongs of the imposition of the Emergencies Act. It was roughly two years ago that the “Act” was imposed on February 14, 2022, with grand fanfare and a concerned grimace by the Prime Minister. His forever kowtowing Ministers, and his NDP cohorts, profusely nodding in vigorous agreement standing behind him. This group of progressive liberals launched an Act designed, as it names implies, for a National Emergency, and when imposed, dictated full control over the lives of its citizens and specifically their ability to protest. There should be no mistake, this was a move that was in this writer’s opinion purely political, a move meant to show strength and determination, and aimed specifically at a group that had the audacity to question, a group that did not support the governing Liberals–in other words, they were the enemy. To put it in even simpler terms, the Liberals and their ilk did not like these protestors, these anti-vaccine rednecks, who came from afar. They were not of them.

Judge Mosley declared in his ruling that the imposition was “unreasonable and infringed on protestors charter rights”. That it did not “bear the hallmarks of reasonableness–justification, transparency and intelligibility”. He confirmed in essence what many thought –there was “no national emergency”. The faithful readers of this blog will remember a blog some months ago entitled “Sledgehammer and the Peanuts” which argued these same points; that the blaring of horns, the smell of diesel, bouncy castle encampments, and the disruption of the workday for bureaucrats in Ottawa (who were working from home through all this because of COVID) did not fit the definition, no matter how broadly interpreted, of this being a national emergency and that it certainly did not need such an all encompassing and arbitrary legal hammer.

The protest and the reaction to it did show that in Ottawa, if you put too many police departments in the kitchen, the broth will in fact be spoiled. The frustration and lack of coordination by the RCMP and the Ottawa Police Service, combined with the Doug Ford non-response, bordered on farce.

Of course this ruling was a kick in the pants for those fearless crime fighters Trudeau and Freeland; they know that this is not good in terms of going into the next election. Freeland, undeterred by a lack of factual support for her argument, went immediately running to the microphone, saying in her pedantic kindergarten teacher voice, “the safety of individual Canadians was under real threat…our national security was under real threat”. Quite an explanation.

So the Liberal government immediately have said they were going to launch an appeal. Usually the governing party of the day and any governing party would be more cautious in challenging the judiciary, normally they would “take it under advisement” or would be “studying” the case. It demonstrates the level of incomprehension amongst these Liberals as to someone having challenged their decision making, a court saying to them, no, you were wrong, and in fact you breached the Charter of Rights. How dare Judge Mosley describe the decision making at the time, as only based on “speculation” and that it had led to “unreasonable search and seizure”. The Liberals, of course have not released their legal grounds for that appeal, so I am suspecting that the Justice Department is now assigned to go find those grounds.

It is good to remember that there are four grounds to impose the Emergencies Act as clearly written: a) a public welfare emergency b) a public order emergency c) an international emergency, and finally d) a war emergency. CSIS in the Act is the defining authority in terms of what constitutes a security emergency. Clearly the latter two conditions, c) and d) didn’t apply, so the Liberals will have to continue to argue that it was a public welfare or public order emergency on a national scale. It was very interesting at the time, that CSIS Director David Vigneault in front of the Rouleau Commission, in a classic case of double-speak, said that even though the circumstances “didn’t meet the definition of a threat to national security”– nevertheless he supported the government decision. So in the end he supported what turns out to be a serious breach of rights of Canadian citizens, when he didn’t feel that there were grounds to do so. Time for Vigneault to step down.

So what will be the Liberal strategy be to fight this public relations nightmare. They are going to point to two arguments, and they have already started down this road.

First and foremost, they will point to the earlier mandated government appointed Commission that was chaired by Justice Paul Rouleau. The “appointed” Commission predictably found that it was “a failure in policing and federalism”, that it was in fact a “national emergency”. This was a bit of sleight of hand. The Commission mandate was to “examine and assess the basis for the Government’s decision to declare a public emergency…appropriateness and effectiveness of the measures selected by the government”. It was was not in fact a “legal” finding. The Federal Court with Judge Mosley on the other hand was to determine the legal “threshold” having to be met for the imposition of the Act.

Rouleau interestingly also said that it was a “difficult decision” he came to and that the “factual basis” for his finding “was not overwhelming”. I guess the lesson there for everyone is to never let the facts get in the way of a good argument.

The Commission was politically tainted, it appeared to have been set up purposely to ameliorate the decisions by the government of the day. The allowed testimony was not subject to being tested in terms of any extended cross-examination. The Minister of the day, now former Justice Minister David Lametti, during his testimony even refused to reveal the legal opinion which prompted their taking of the action, arguing lawyer client privilege. It was pointed out to him that he could have waved the privilege, but he would not. Mr. Lametti, who was so traumatized during the days of the convoy, that he moved back to Montreal, in a recent interview he now of course “disagrees totally” with Judge Mosely and is “confident” that they will win an appeal.

The other argument that the Liberals will bring is the example of what was going on at the time in Coutts Alberta and the roadblock there. It led to an investigation of an extremist group who wanted to attach themselves to the protest, and they were intercepted and charged by the RCMP. This Liberal argument is also disingenuous. The investigation and charges were brought about through the Criminal Code not the Emergencies Act. The police used the existing powers to bring that investigation to a close. So as Judge Mosley points out in his decision, the “existing laws were sufficient”, to deal with the Convoy protests, that the regular laws were open to the police and could handle the situation. The protestors that were charged, Tamara Litch and Chris Barber won’t necessarily be helped by this Federal Court decision, because they were also charged under the Criminal Code, not under the Emergencies Act.

Judge Mosley also added that “economic disruption cannot form the basis of extraordinary measures”. The Liberals during this “crisis” often argued that the Windsor border blockade was disrupting trade going into the United States. Ms. Freeland trotted that argument out again at her recent press conference, again arguing that Canada’s “economic security” was threatened. Maybe, she had not read the entire decision?

It is also interesting to read the various takes of those in the Liberal support groups, who were supportive of the government measures at the time. The CBC called it a “a divisive decision” and that illustrious leader of the NDP, Jagmeet Singh now says that he only “reluctantly supported the Act”. The Ottawa citizens who formed a civil class action against the protestors, which is seeking $290 million for their Wellington Street disruption, are still saying this ruling does not hurt them. Their lawyer Paul Champ argues that their case is about “honking, its about parking on the street, not for an afternoon of protest, but for weeks”. If one ever needed convincing that the citizens of Ottawa, and the bureaucrats who are governing this country live in a hermetically sealed environment, this is the case.

The Canadian Civil Liberties Association, a group which I rarely find agreement with, but brought the case forward to the Federal Court, said that the actions of government in this case, that the imposition of these types of laws “…are dangerous to democracy”. This decision, if looked at in a broader scope, should be seen as an examination of the very tenuous nature of democracy. The solitary Judge showed us how thin that thread really is, and for that we owe him a debt of gratitude.

Photo courtesy of Michael_Swan of Flickr Commons – some Rights Reserved.