Federal Court of Appeal to rule on Liberals' use of Emergencies Act to clear convoy protests

The Federal Court of Appeal is expected to give its decision Friday morning on whether the Liberal government unlawfully invoked the Emergencies Act to clear the convoy protests that gridlocked the capital city and border points nearly four years ago.

The appellate court has been reviewing a Federal Court decision that found the government's 2022 decision to apply the never-before-used law was unreasonable and infringed on protesters' Charter rights.

In that 2024 decision Federal Court Justice Richard Mosley wrote that while the protests "reflected an unacceptable breakdown of public order," there "was no national emergency justifying the invocation of the Emergencies Act."

Mosley said he reached his decision with "the benefit of hindsight" and a "more extensive record of facts and law" than the government had when it proclaimed a public order emergency.

The federal government swiftly appealed. 

During a hearing last February, a lawyer for the federal government argued it was unfair for the judge to apply "20/20 hindsight" to find fault with the government's decision.

The government has long argued the protests posed a security threat and the measures it took under the Emergencies Act were targeted, proportional and temporary. 

What began as a protest largely against vaccine requirements attracted thousands of people to the capital, many in trucks, who had a slew of grievances aimed at former prime minister Justin Trudeau and his government for weeks.

In the face of blaring horns, big-rig blockades and makeshift encampments, some Ottawa businesses temporarily closed, while many residents complained of noise pollution and diesel fumes.

Protesters, some of whom had brought bouncy castles and an inflatable hot tub, pushed back, arguing it was a largely peaceful demonstration. 

Trucks and protesters also clogged some border crossings, including the key trade route to the United States via Windsor, Ont.

Trudeau's government invoked the Emergencies Act on Feb. 14, 2022, giving law enforcement extraordinary powers to remove and arrest protesters and gave the government the power to freeze the finances of those connected to the protests. 

Mosley also found the economic orders infringed on protesters' freedom of expression "as they were overbroad in their application to persons who wished to protest but were not engaged in activities likely to lead to a breach of the peace."

One of the pillars of the legal challenge, and the public inquiry that came before it, centres around the definition of "threats to the security of Canada."