A court verdict worth reading — completely

Opinion

Hey there, time traveller!
This article was published 25/01/2024 (622 days ago), so information in it may no longer be current.

It’s a simple, relatively straightforward decision by a federal court judge.

And anyone who wants to comment on it should take the time to read the whole thing — not that they will, in these times of hot takes and internet rage farming.

On Tuesday, Justice Richard Mosley of Canada’s Federal Court issued his ruling on whether or not the federal government was justified in invoking the Emergencies Act to end the anti-government, anti-vaccine blockades in Ottawa and other parts of the country.

Mosley ruled that the federal government did not have reasonable grounds to invoke the Act, a decision the federal Liberal government says it will appeal.

The crux of Mosley’s decision, in the space we have? That there were other, better tools.

“Due to its nature and to the broad powers it grants the federal executive, the Emergencies Act is a tool of last resort. The (federal cabinet) cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces … And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation,” Mosley wrote. “For these reasons, I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable…”

It is interesting, however, that, while some provinces were handling the blockades, others simply weren’t — an argument was made during the case that dealing with the blockades was a matter for provincial governments to deal with. As Mosley wrote, “The Applicants and Alberta argue that the EA does not permit the federal government to override a provincial government’s decision not to exercise its powers, as federal emergency powers sit upon a delicate constitutional foundation … Thus, they contend, emergency powers are only available in times of genuine provincial incapacity and not simply provincial inaction.” (Mosley’s own underlining.)

Mosley points out that the federal Privy Council Office told the prime minister the invocation of the Emergencies Act was legal. As the judge wrote, “the Privy Council Office was of the view that the evidence collected to date supported a determination that the criteria required to declare a public order emergency pursuant to the EA had been met. It also went further, however, to note that the conclusion ‘may be vulnerable to challenge.’”

Turns out, it was indeed vulnerable to challenge.

Mosley acknowledges his decision comes with the benefit of hindsight: “I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order. I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the (federal cabinet).”

Mosley also outlines that determining if and when the Emergencies Act can be invoked is an important one. “While the circumstances (of the convoy protests) were exceptional up to that point in time, there can be no guarantee that there will not be a recurrence of similar events, or worse, in light of the rise of extremist elements within our society prepared to take their opposition to government policies to another level of protest, and to whip up support for such protests through the extraordinary reach of social media.”

A pragmatic take in a less-than-pragmatic world.

It should be required reading for Canadians — a decision as important as this one should not be delivered in tweets.