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Constitutional Rights Groups Launch Legal Challenges Against Ottawa’s Invocation of Emergencies Act

By Isaac Teo February 17, 2022

Canadian civil liberties and constitutional rights groups say they intend to take the federal government to court over its use of the Emergencies Act to deal with the ongoing protests against COVID-19 mandates.

In a press release issued on Feb. 17, the Canadian Constitution Foundation (CCF) announced it is launching a legal challenge to the Liberals’ invocation of the Emergencies Act. The challenge will be by way of urgent application for judicial review at the Federal Court.

CCF litigation director Christine Van Geyn said the government has invoked the act as a matter of “political convenience,” which is “illegal and violates the rule of law.”

“Prime Minister Trudeau has set a dangerous precedent by invoking the never before used federal Emergencies Act to address the current situation. The high threshold for declaring a public order emergency in the Emergencies Act has not been met,” said Van Geyn in a statement.

On Feb. 14, Justin Trudeau became the first prime minister in Canada to invoke the Emergencies Act, using it as a means to squash the ongoing protests against COVID-19 mandates and restrictions by truckers and their supporters across the country.

Van Geyn said since the Act has never been invoked, it has also never been interpreted by the courts. “If Parliament authorizes the proclamation of the public order emergency, the courts will be the last defense for the rule of law,” she said.

“This isn’t about the convoy versus the city. This is about the rule of law.”

Separately, the Canadian Civil Liberties Association (CCLA) said it’s intending to sue the federal government over its use of the act, noting that the situation with the protests doesn’t meet the threshold to invoke it.

“The government’s emergency declaration is unprecedented and seriously infringes the charter rights of Canadians,” CCLA executive director Noa Mendelsohn Aviv said at a press conference on Feb. 17.

“The government has brought in an extreme measure that should be reserved for national emergencies, a legal standard that has not been met. Emergency powers cannot, and must not, be normalized. For all the peaceful and disruptive protests in Canada’s history, some involving unlawful acts and protracted standoffs with police, never before has a government declared a national emergency under the Emergencies Act.”

Abby Deshman, CCLA’s director of criminal justice, said there have been many protests in recent history in Canada that have been “incredibly disruptive,” but the Emergencies Act wasn’t a tool used to deal with those protests.

She made a reference to the 2021 student protests in Quebec where thousands of students protested for months, having confrontations with police and causing property damage, as well as the demonstrations in Toronto during the G20 summit, where protesters set police cars on fire.

“Throughout the past 30 years, Canadian police have successfully dealt with a very wide range of protests without resort to emergency legislation,” she said.

Deshman said in the case of the current protests, the threshold set out in the Emergencies Act hasn’t been met to warrant its use.

“Section 3 of the Emergencies Act requires that there be a national emergency, a temporary, urgent, and critical situation that seriously endangers the lives health, or safety, of Canadians, and is of such proportions or nature that it exceeds the capacity or authority of a province to deal with it. It also encompasses situations that seriously threaten the ability of the government of Canada to preserve the sovereignty, security, and territorial integrity of the country. In either case, the emergency must be such that it cannot be effectively dealt with under any other Canadian law,” she said.

“We do not want to minimize the impact that the protests are having on people across the country. But while some of the blockades have been immensely disruptive, it is unclear that the ongoing protests endanger the lives, health, or safety of Canadians so seriously that they constitute a national emergency.”

The Justice Centre for Constitutional Freedoms, which is providing legal representation to the protest organizers, said in a statement ahead of the declaration that it would “immediately file a court application seeking to overturn such a declaration.”

“Prime Minister Pierre Trudeau used the War Measures Act in 1970 to deal with violence, kidnapping and murder committed by terrorists in Quebec. Today, Prime Minister Justin Trudeau is considering using the Emergencies Act to deal with bouncy castles and ball hockey,” Justice Centre litigation director Jay Cameron said in a statement on Feb. 14.

“Peaceful protesters who feed the homeless, shovel snow, pick up garbage, dance in the streets, play street hockey, wave Canadian flags, sing the national anthem and set up bouncy castles for children do not ‘seriously endanger the lives, health or safety of Canadians,’ nor are these peaceful activities ‘of such proportions or nature as to exceed the capacity or authority of a province to deal with it.’”

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