Judicial review a 'test case' to build framework to review future use of emergency powers: lawyer

Canadian Constitutional Foundation argues use of Emergencies Act was unnecessary, unconstitutional

Judicial review a 'test case' to build framework to review future use of emergency powers: lawyer
Sujit Choudhry, Janani Shanmuganathan

The Canadian Constitutional Foundation is currently before the Federal Court arguing that the federal government’s use of the Emergencies Act in February was unnecessary and unconstitutional.

The CCF brought an application for judicial review on Feb. 23, the day the federal government revoked the emergency proclamation. The application is a test case, says Sujit Choudhry, who is acting for the CCF along with Janani Shanmuganathan.

“First of all, we think it's very important that, even though the emergency has come to an end, that a court of law rule on the legality and constitutionality of the emergency and the measures taken,” he says.

“This is the first time that the Emergencies Act was used since it was enacted into law in 1988. The case provides a once-in-a-generation opportunity for the courts to build a legal framework for what we call an effective and efficient judicial review of the exercise of emergency powers.”

On Feb. 14, in response to the Freedom Convoy occupation in the nation’s capital and blockades of major transportation channels, the Government of Canada declared a public order emergency under the Emergencies Act, which was in effect until revoked on Feb. 23.

As a test for triggering a declaration of a public order emergency, the Emergencies Act requires “absolute necessity,” says Choudhry. The government must show that no other legal means are effective, he says.

The CCF argues that the police could have cleared the border blockades and Ottawa protest with existing tools available under Canadian law.

In their amended notice of application, the CCF states that police ultimately cleared the blockades using the Criminal Code and provincial highway traffic legislation, and that every charge the police have issued so far has been under those powers.

Same goes for the protest in Ottawa. The feds had the power to provide the city with officers, and to launch a joint command with the Ottawa Police and the Ontario Provincial Police – which they did prior to the Emergency Proclamation. The CCF adds that, under s. 129(b) of the Criminal Code, the police could have compelled tow-truck drivers to make their trucks available to clear the vehicles. As with the blockades, every charge police laid was under existing Criminal Code provisions, said the notice of application.

The Emergencies Act was also unnecessary to stem the convoy’s funding, argues the CCF. The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) requires payment processing platforms to report suspicious transfers to and from crowdfunding websites, and the federal government had the power to apply for a restraint order under s. 490.8 of the Criminal Code to “prevent a person from disposing of, or otherwise dealing with, any interest in offence-related property.”

The CCF also alleges that Ottawa’s use of the Emergencies Act violated the Charter rights to freedom of expression, association, and assembly, under ss. 2(b), (c), and (d); the guarantee against the interference with life, liberty, and security of the person, under s. 7; and the right to be secure against unreasonable search and seizure, under s. 8.

The position of the Attorney General of Canada is that the CCF’s applications are moot, due to the revocation of the emergency measures, says Ian McLeod, a spokesperson for Justice Canada. Canada also argues that the CCF does not have standing to challenge the invocation of the Emergencies Act.

Canada also argues that certain material that was before the Governor in Council when it proclaimed the public order emergency is confidential. It has invoked cabinet confidence, confidence for reasons related to national security or international relations, and solicitor-client privilege, says Choudhry.

In hearings before the Federal Court on Aug. 8 and 9, the CCF argued that its counsel be granted access to material protected by cabinet confidence, and that the court then should conduct a closed hearing, on the merits, he says.

“That would be a highly unusual procedure in Canadian law, but we present it as an innovative solution that balances two competing goals. The one goal is to respect the reality that certain government deliberations need to be kept confidential. But the other competing principle is the need for governments to behave according to the law.”

“Our concern is that by insisting on the confidentiality of these materials, the government is depriving the court of information that the court needs to do its job, and it is undermining effective judicial review,” says Choudhry.

For the material that is confidential for national security and international relations purposes, the CCF will bring another motion to have an amicus curiae, who is a lawyer with security clearance, to receive the unredacted materials and present arguments to the court in a closed proceeding, he says.

“We wouldn't be able to participate in that. But the point is that that type of a procedure is another innovative way to allow for a court to test whether the government has acted lawfully and constitutionally, in an adversarial process.”

The Public Order Emergency Commission will begin public hearings on Sept. 19. Under s. 63(1) of the Emergencies Act, the Governor in Council is to establish an inquiry to examine the circumstances which led to the declaration and the government’s measures to deal with the emergency. The legislation gives the commission 360 days after the revocation or expiration of the emergency declaration to produce a report.

The commission anticipates calling as witnesses protest participants, law enforcement representatives, government officials, and people, businesses, and organizations affected by the protests, says Michael Tansey, senior communications advisor for the commission.

Through the hearings, the commission will examine and assess the government’s actions and the appropriateness and effectiveness of the measures it selected to deal with the situation. The commission will also review the legislative and regulatory framework involved and evaluate whether amendments to the Emergencies Act are necessary.

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