Emergencies Act sparks legal challenges in wake of trucker convoy protests


OTTAWA, ON, March 11, 2022 – The process of parliamentary inquiry and review into the use of the Emergencies Act to halt trucker protests over vaccine mandates is not yet underway, but the legal fallout over recourse to new unprecedented federal powers has already begun.

The Emergencies Act calls for an inquiry to examine the circumstances that led to declaring an emergency, as well as a review to determine how these powers were used. For the first time in Canadian history, the federal government enacted the Emergencies Act, declaring a public order emergency following three weeks of continuous protests in Ottawa and blockades at key Canada-US border crossings. Two days later, the government reversed course.

The federal government’s decision to bring in the Emergencies Act to quell trucker protests has generated a fair amount of criticism and hand-wringing over what kind of precedent this might set. Premier Jason Kenney of Alberta made no bones about the fact that he thinks the feds have overshot their authority. This is “one of the most obvious overreaches of government power in my lifetime,” he said in the Alberta legislature shortly after the Emergencies Act was revoked. Despite its revocation, the province of Alberta will proceed with its request for a judicial review of the federal government’s use of the Emergencies Act.

Order restored in Ottawa
After the occupation has been cleared along Ottawa’s at Rideau St. and Colonel By Drive.

“That (revocation) does not change the profound concerns of Canadians, of Albertans and this assembly with this unnecessary, unjustified and disproportionate use of arbitrary police power in our lifetime with no good reason,” Kenney said.

He highlighted the fact that the blockade in Coutts, Alta. was cleared without the use of extraordinary powers. He also said that it was within the jurisdiction of the Ottawa police to prevent semi-trailer rigs from being parked on the streets of downtown Ottawa.

Things are relatively back to normal in downtown Ottawa.

“We had no shortage of law. What we had was a shortage of enforcement,” Kenney said. Despite the tense standoff at a number of border crossings, the situation in Coutts, Alberta ended on a positive note with RCMP officers shaking hands and hugging trucker convoy protesters as they prepared to roll out. This scene was in stark contrast to an earlier one in which police seized a cache of weapons found in trailers in Coutts.

Initially, Prime Minister Justin Trudeau defended the wide range of sweeping powers in the Emergencies Act saying they were necessary to ensure order. After order was restored in both Windsor and Ottawa. He did a 180-degree turnaround saying extraordinary powers were no longer necessary to end the crisis which had gridlocked downtown Ottawa and slowed the flow of goods between the US and Canada.

“We are confident that existing laws and bylaws are now sufficient to keep people safe,” Trudeau told a news conference just two days after Parliament passed the controversial legislation. The most contentious measure included authorizing financial institutions to freeze or suspend accounts affiliated with convoy fund-raising without a court order. The new law also imposed heavy fines and imprisonment on anyone who breached the orders.

The Canadian Civil Liberties Association (CCLA) announced that it plans to sue the federal government over its decision to invoke the Emergencies Act in response to trucker protests and blockades. “Emergency powers cannot and must not be normalized,” said CCLA executive director Noa Mendelsohn. Despite the revocation of the Emergencies Act, the CCLA plans to continue its case. Abby Deshman, CCLA’s Director of Criminal Justice made the following statement: “We welcome the government’s decision to revoke the proclamation of emergency … From the outset, however, we have stated that the government did not meet the legal thresholds set out in the Emergencies Act. We continue to believe that there was an insufficient legal basis for resort to the Emergencies Act and that the orders the government passed under this legislation were unconstitutional. We also continue to believe that it is important for the courts to consider the legal threshold and constitutional issues so as to guide the actions of future governments. Even though the orders are no longer in force, Canadians are left with the precedent that the government’s actions have set. We will be consulting with our counsel over the next few days to determine what the next steps are in our litigation, but at this time we will continue our case.”

While Alberta Premier Jason Kenney, the CCLA and others have expressed the view that the federal government overplayed its hand, many residents and small business owners in downtown Ottawa clearly feel that the government did not act soon enough to calm the situation resulting in snarled traffic and shuttered businesses and now they are seeking damages. Ottawa lawyer Paul Champ of Champ & Associates filed a $300-million class-action lawsuit against the convoy leaders and protestors on behalf of thousands of residents and an injunction “prohibiting the continuation of the nuisance.” The statement of claim names convoy protest organizers Tamara Lich, Patrick King, Chris Barber and others as defendants.

The lengthy protest-turned-occupation of Ottawa’s downtown core was by no means limited to truckers honking their horns even after an injunction prohibited honking. Self-styled protesters came out in droves across the country to support truckers who opposed vaccine mandates. Thousands more made their way to the nation’s capital to voice broader grievances over lockdowns and all Covid mandates. The disputes between convoy organizers and the Trudeau Government, the Ford government, and Mayor Jim Watson and the City of Ottawa soon turned inexplicably into a festival atmosphere featuring a DJ and sound stage, dance parties, a bouncy castle, hot tubs, cook-outs, street performers and mascots, attracting throngs of young weekend “partyholics” who unleashed nearly two years of pent up pandemic frustrations and cancelled holiday spirit on Ottawa’s downtown denizens.

The whole carnavalesque nature of the protest surely caught many pundits off guard and left them scratching their heads. In the end, police reports showed that, apart from ignoring public health rules, most of the people gathered in the downtown core of Ottawa were guilty of nothing more than having too much of a good time and not knowing when it was time to go home. However, the large crowds and frenetic activity provided a cover for illegal acts, some of quite serious nature, resulting in 191 arrests.

For Ottawa’s downtown residents and small business owners located in close proximity to the Parliamentary precinct there was nothing fun about the hijinx of the convoy protest. Many residents were unable to pursue their normal daily lives because of the huge crowds milling about outside their apartments or to get a decent night’s sleep owing to the constant noise. Some owners of storefront businesses poised to reopen as restrictions lifted found themselves unwilling to open their doors to customers and staff because of security concerns.

On March 9 lawyers for the proposed class-action lawsuit against the convoy protest in Ottawa argued in court that American crowd-funding site GiveSendGo may be in breach of a freezing order on funds raised for the convoy on its website. Monique Jilesen, a lawyer representing the proposed class and who obtained an injunction that froze convoy funds, said the order is meant to secure funds so the legal issue of how they should be used can be dealt with in court. Parties in the case have agreed to move some donated funds and cryptocurrency into escrow, which could be redistributed to affected Ottawa residents and business owners should the class action succeed. Jacob Wells, co-founder of GiveSendGo, told an Ontario Superior Court judge that the platform’s terms of service give it the discretion to return funds to donors.

On another front, Tamara Lich, one of the principal organizers of the “Freedom Convoy” protest that overtook downtown Ottawa, has recently been granted bail after review. Lich was arrested Feb. 17 and charged with counselling mischief the day before police moved in to break up lingering crowds of protesters using powers invoked under the federal Emergencies Act. Lich was initially denied bail on Feb. 22 after Ontario Court Justice Julie Bourgeois ruled her detention was “necessary for the protection and safety of the public.” Her lawyer, Diane Magas launched a bail review on the grounds that the judge’s decision might have been tainted by the fact that Bourgeois ran as a federal Liberal candidate in the 2011 election.

Magas filed an affidavit on behalf of Lich saying that had she known that Bourgeois had ties to the federal Liberals she would have asked the justice to recuse herself from the case. “Had I had that information beforehand, I would have felt uncomfortable with the situation,” Lich told the court. Magas also argued that Bourgeois repeatedly referred to the impact of the protest on “our community,” in her decision to keep Lich in jail. “If a justice feels impacted in our community, in her community, in my submission she should not sit. There should be an out of town judge,” Magas told the court.

The newly formed parliamentary review committee will be holding its first meeting on March 14 as it begins its work scrutinizing the government’s invocation of a national public order emergency to end the trucker convoy protests. The multiparty panel of seven MPs and four senators is expected to complete and submit at least an initial report shortly after Parliament reconvenes on March 21. The joint House and Senate Parliamentary Review Committee has the responsibility to review the government’s actions under the Act starting on the day it was invoked, and ensure the government used its powers responsibly through the 10 days it remained in effect. Every member of the committee, and all staff tasked to work with it, will have to take an oath of secrecy. Much of the committee’s work will be done behind closed doors although parts of the committee’s work will be available to the public.

by Deborah Rankin

photos by Terry Lankstead

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