Federal government appeals Emergencies Act use during convoy protest to Supreme Court

The federal government is bringing its case to justify use of the Emergencies Act to clear the convoy protests that gridlocked the capital city and border points to the country's highest court.

The Federal Court of Appeal dismissed the government's previous appeal after a lower court ruled that former prime minister Justin Trudeau's decision to use the legislation was unlawful and infringed on protesters' Charter rights.

"Our government remains committed to ensuring it has the tools needed to protect the safety and security of Canadians in the face of threats to public order and national security," a spokesperson for Justice Minister Sean Fraser said in an email.

The Canadian Civil Liberties Association (CCLA), the Canadian Constitution Foundation and other groups filed the legal challenge of the government's 2022 decision that the protests, known as the Freedom Convoy, rose to the level of a public order emergency requiring special powers to address.

In the 2024 decision, Federal Court Justice Richard Mosley, since retired, said the government's decision lacked justification, transparency and intelligibility.

The government appealed. During a hearing last February, its lawyers argued the court downplayed violence with "hindsight bias on full display."

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.

But the appeal court's decision agreed with Mosley's finding that cabinet did not have reasonable grounds to believe that a threat to national security existed and fell short of the legal threshold needed to invoke the act.

"As disturbing and disruptive the blockades and the convoy protests in Ottawa could be, they fell well short of a threat to national security," wrote the three judges on the appeal court.

A number of the Freedom Convoy organizers were found guilty of mischief and handed conditional sentences.

A mandatory inquiry, led by Commissioner Paul Rouleau, reviewed the government's use of the Emergencies Act and came to a different conclusion in early 2023 than the subsequent legal challenges.

Rouleau concluded the federal government met the "very high" threshold needed to invoke the Emergencies Act, citing a failure in policing and federalism.

Conservative MP Marilyn Gladu criticized the government's decision to appeal the ruling to the Supreme Court.

"There are far better uses for taxpayer dollars than to pay lawyers to defend their choice to illegally suspend the rights of Canadians," Gladu said in a statement.