Supreme Court to hear final appeal of Trudeau government’s invocation of Emergencies Act

Hundreds of 'Freedom Convoy' supporters returned to Parliament Hill Saturday, Feb. 17, 2024, on the two-year anniversary of the invocation of the Emergencies Act that ended the protest. Photo by Ashley Fraser /Postmedia

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OTTAWA — Canada’s top court will decide once and for all if the federal government’s invocation of the extraordinary powers of the Emergencies Act during the 2022 Freedom Convoy was constitutional.

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On Thursday, the Supreme Court Canada (SCC) announced it would hear the final appeal of two lower court decisions ruling that the invocation by former prime minister Justin Trudeau was unjustified as a way to stop the protests.

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In its application for leave to appeal, the federal government argued that the Federal Court and Federal Court of Appeal applied the “wrong principles” and a “flawed approach” when they ruled that the government’s unprecedented decision to invoke the Emergencies Act on Feb. 12, 2022 was unconstitutional.

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In January, the Federal Court of Appeal upheld a lower court decision that the Liberal government’s invocation of the Act to deal with lingering Freedom Convoy protests was unreasonable, unjustified and violated the Charter.

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The challenge to the use of the act was brought forward by civil liberties groups such as the Canadian Civil Liberties Association (CCLA) and the Canadian Constitutional Foundation (CCF) as well as the provinces of Saskatchewan and Alberta.

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In a statement Thursday morning, the CCLA vowed to defend its “historic victory” in both lower courts.

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“For the CCLA, this case is not about the ‘Freedom Convoy’ protests,” the CCLA’s Anaïs Bussières McNicoll said in a statement. “It is about sending a clear message to this and future governments: even in times of crisis, no government is above the law.”

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The case will also put a spotlight on SCC Chief Justice Richard Wagner. In March, he denied a request by a group opposing the use of the Emergencies Act to recuse himself due to comments he made in 2022 about the Freedom Convoy.

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At issue for those requesting Wagner’s recusal were two sets of 2022 comments in which the chief justice called the Freedom Convoy protest the “start of anarchy” and said participants took Ottawa residents “hostage.”

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But in a letter to parties in March, the SCC said Wagner had “concluded that there is no actual or reasonable apprehension of bias that would require his recusal under the applicable legal test.”

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The 2022 Freedom Convoy protests lasted for weeks across Canada but focused particularly on Ottawa, with dozens of large trucks and vehicles blockading streets around Parliament to protest the government’s pandemic lockdowns and vaccine mandates. Protestors also blocked border crossings in Coutts, Alta., as well as access to the Ambassador Bridge in Windsor, Ont.

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At the time, the government argued it needed the exceptional powers granted by the act to freeze some convoy participants’ bank accounts, compel tow truck companies to co-operate with local police clearing out the trucks, and mark parts of downtown Ottawa as a no-go zone.