Emergencies Act Decision

The challenge to the invocation of the Emergencies Act was successful at the Federal Court, but the government is appealing. As Emmett MacFarlane argues, there's a lot of meat to consider on an appeal, and I largely agree with his assessment.

Here are my thoughts, having briefly reviewed the reasons on the critical points.

To my understanding, there are basically two core lines of attack against the invocation: The first is that the Emergencies Act, as written, doesn't allow for that scenario to be treated as a public order emergency. The second is that the specific measures imposed - via the Emergency Measures Regulations and the Emergency Economic Measures Order - violated the Charter.

The government lost on both points, but it's worth questioning both, to varying extents.

The Limits of Section 2: Why this doesn't vindicate the Convoy

Before I get into the guts of that, I want to highlight that this is hardly a moral victory for the Convoy: The Convoy wasn't a peaceful assembly, and therefore shutting it down didn't limit rights to peaceful assembly.

Rightly, the court took a bit of a different tack on free expression, finding that the regulations limited the protest rights even of individuals who weren't and wouldn't be involved in otherwise illegal activities - but still, that didn't extend to the mobs that were disrupting the peace.

"To the extent that peaceful protestors did not participate in the actions of those disrupting the peace, their freedom of expression was infringed."

There's an interesting 'theory' question that arises here, that I've argued about from time to time: Does s.2(b) simply not protect expression that's carried out in a way that is violent or disruptive to the peace, or does it - at first glance - protect those kinds of speech activities, subject to reasonable limits set out in s.1?

In other words, when a protest becomes disruptive, is s.1 (with the associated Oakes test) the only basis upon which the government can justify shutting it down? Or is there some other standard of speech that doesn't fall within the ambit of s.2(b), that the government can limit without being held to the standards of reasonableness imposed by s.1?

Myself, I'm deeply skeptical of the view that there are any inherent (but unstated) limits to s.2(b) separate and apart from the reasonable limits of s.1: It would require us to develop Americanesque categories of what does and doesn't fall within the language of free expression, and it's either pointless (in the sense that regulating speech outside of those limits is demonstrably justifiable) or dangerous (in the sense that it would create categories of speech that the government could regulate without justification).

The fairest interpretation of the decision - even if you think the judge got it right - is this: The government could have legislated a framework for doing most of what they did without going off-side the Charter, but the legislation wasn't drafted that way; and shutting down the Convoy was a legitimate and pressing government objective, but some of the measures went a bit further than was necessary to do so.

The Charter Question

Peaceful assembly issues aside, the Emergency Measures Regulations limited s.2(b), and that seems almost unassailably sound to me, and so we go to s.1.

A bit more tenuous is the finding that the Emergency Economic Measures Order constituted an unreasonable search and/or seizure under s.8, and we'll talk about that before talking about s.1.

There are two semi-distinct issues here: The requirement for banks to disclose personal information about accounts and their usage almost certainly constitutes a "search" - but unlike s.2(b), s.8 has built-in qualifiers limiting its application to 'unreasonable' searches, so whether it's an 'unreasonable search' is a live question.

Secondly, does freezing a person's accounts constitute a 'seizure' within the meaning of s.8?

Section 8 is fundamentally about privacy rights. Despite various groups trying - many times over many decades - to argue that the Charter protects property rights, this has consistently been unsuccessful. There is good (and binding) authority that seizures outside of administrative/criminal investigations don't engage s.8 at all.

It's also generally true that searches for purposes other criminal proceedings attract less protection of s.8.

The judge found that the search was unreasonable because it lacked an advance process for authorization (such as a warrant), which is coherent but arguable in this context, and he also found that the freezing of accounts constituted a 'seizure' - which conflicts directly with binding authority, and I don't expect will hold up on appeal. (The judge seemed concerned about the potential impact on uninvolved persons' ability to handle their essential household expenses, but while that does wander into territory that sometimes engages Charter rights, it's more of a s.7 analysis than a s.8 one.)

How we get to section 1 is important, particularly here, because understanding how the regulations affect Charter rights is critical to the section 1 analysis on whether those limitations are justified.

Section 1

The 'reasonable limits' clause allows rights to be limited where it is 'demonstrably justifiable'. The test for this is well-established, from Oakes, requiring the government to show a pressing and substantial objective; and that the limitation of rights is 'rationally connected' to that objective, that the rights are minimally impaired in pursuit of that objective, and that the impairment is proportional to the objective.

The judge concluded, sensibly, that the government had a pressing and substantial objective, and the measures were all rationally connected to the goal...but they failed on 'minimal impairment'.

This is unusual, because 'minimal impairment' is a deferential standard.

Critically, the point of the 'minimal impairment' exercise is not so that judges will act as armchair quarterbacks, criticizing whatever aspects of the play might have been done better with the benefit of hindsight, but rather it's to prevent the government from using measures that are arbitrarily intrusive on Charter rights.

And the specific criticisms here seem very far into the former category: National scope instead of limited to affected Provinces, and the judge was concerned with the broad brush being used for account freezing.

National Scope

The government pointed out that the Convoy blockades happened in various Provinces, and that their support and funding came from all over the country. The judge noted that this could be a persuasive argument, but that the evidence didn't demonstrate that Province-specific measures would have been less effective.

There's a question that arises here as to the onus to show the relative effect of different options. Especially in this context, it's necessarily speculative to say that a different approach would have been equally effective or less effective. And in an emergency scenario, I'd suggest it's fair to give a bit more leeway to the government in 'tailoring' a particular measure: You can't reasonably expect a government in an emergency to conduct lengthy studies and forecasts of the impacts and effectiveness of possible interventions; rather, they're making policy based on their best estimates and reasonable expectations.

It strikes me that the inferences the government is relying upon here are very sound: The economic measures had to be national to be effective, because the funding sources were national. The ability to address the blockades directly - when different blockades and protests were popping up across the country - required the ability to respond to new ones, not merely to address the existing ones, particularly in light of the mobility of the protesters. Emergency measures that can be thwarted simply by moving the trucks to a different spot seem to have pretty obvious loopholes, and reasonable people would anticipate a plausibility - even a probability - that shutting down the Ottawa Convoy with Ontario-specific regulations would merely have moved the blockades across the river.

However, the regulations were tailored to some extent: Sure, there were no blockades in PEI, and the regulations applied there too, but what the regs did in PEI is pretty limited, prohibiting assemblies that could reasonably be expected to lead to a breach of the peace. And if, within the time that the emergency persisted, such an assembly did occur there, it's reasonable for the government to want the regulation to apply there.

A Free Hand to Freeze Accounts

The judge's concerns here deal with a couple of facets: The fact that there's no 'objective standard' for designating a person whose account is to be frozen and no way of challenging the decision; and the fact that joint account holders and cardholders could have their assets frozen despite being personally uninvolved.

There are a lot of problems with the court's analysis on this issue. Let's start by going back to the dubious nature of the court's conclusion that 'freezing a bank account' in this context engages section 8 of the Charter: If that's wrong, and I think it is, then there's no requirement to justify that particular measure under s.1.

But let's suppose that the court has that part right; the missing part of the court's analysis here remains that there's no examination of what less restrictive measures would have accomplished the same goal. The government argued that the impact on joint account holders (etc) was unavoidable; the judge was critical that there weren't efforts to find a way around that issue while the measures were in effect.

It's not clear to me that there was a way around that - or, at minimum, that there's any plausible solution that you could reasonably expect them to have developed and implemented during the 9-day life of those regulations - and the court doesn't appear to suggest that there were straightforward solutions.

How can you say that its application to uninvolved joint account holders wasn't minimally impairing, without first finding that there actually was a way around that problem?

As to the absence of an objective standard or review mechanism, I'm unconvinced that this is a basis to find that it's not minimally impairing. To the extent that the judge seems to be concerned more with how the regs were applied than with their actual language (which is a bit of a problem on a Charter analysis anyways), I think it bears remembering that - of the thousands of people who financially supported the Convoy - only 57 persons/entities were subject to the economic measures, and only for 9 days or less.

Theoretically, there would be mechanisms to challenge a designation that were not justifiable on an individual basis, though practically it wouldn't be possible to get through one of those mechanisms in the 9 days that the regs were in effect. The alternative would be for the government to establish a comprehensive and fair procedure for expeditious resolution, including disclosure and production obligations, to deal with it faster...and it's hard to see how that would be a plausible approach under these circumstances.

In the overall factual matrix of a short-term emergency resolution, there wouldn't have been plausible lesser alternatives.

So, all in all, I'm deeply skeptical of the treatment of the Charter issues here.

The Administrative Law Issue

The admin question is more nuanced. I'm still doubtful of this, though.

In a nutshell, when a government official exercises discretion they've been delegated by statute (such as: declaring an emergency under the Emergencies Act), this puts us into the field of 'administrative law', where the decision-maker's decision can be scrutinized to ensure that it is reasonable with reference to their statutory mandate. (Here's a thread where I went into a bit of an explanation of certain admin law principles.)

One of the major difficulties in administrative law is ironing out the 'standard of review': When do we say that a given question is 'what the decision-maker was tasked with deciding', therefore entitling the decision-maker to deference, as opposed to a question being one with a right or wrong answer? We used to say that 'questions of law' attracted a correctness standard - i.e. if a court disagrees with a tribunal on a question of statutory interpretation, then they owed no deference.

But we've moved toward a more generally deferential standard, and I think this case is an illustration of why: A large part of the question here is about statutory interpretation - about what the language defining a 'public order emergency' means. But it's more a question of how the language applies to these facts.

(Yes, there are arguments against the extent of deference courts give administrative decision-makers. I've made some of these arguments myself. But the idea that there may be more than one valid interpretation is pretty entrenched in our law right now.)

Without taking you through the labyrinth of Federal legislation, suffice it to say that the question here boils down to whether the government believed, on reasonable grounds, that there was an emergency arising from the "threat or use of acts of serious violence".

The judge's analysis suggests that, outside of Coutts, there was no threat of serious violence, but he appears to be using an 'uttering threats' sense of the word 'threat' (and not seeming to address the actual Convoy-associated threats at politicians and others), which doesn't take into account the broader and pervasive risks of violence.

He's probably right to reject the risk of economic harm as directly engaging the statutory definition (though he's critical of the statutory definition for how limited it is), but I think he's missing a critical point in the analysis: Why, over three weeks, had the police been unable to shut down the convoy despite its clearly illegal activities?

(On a personal note, that's the key question that always led me to support the invocation of the Emergencies Act: The blockades were clearly a problem, well over the line of any lawful demonstration, with very serious repercussions in Ottawa and elsewhere, and the enduring failure to address them using conventional enforcement mechanisms suggesting strongly that those conventional enforcement mechanisms were not adequate.)

The answer to the question seems to be that, despite injunctions and the various other laws that the Convoy was breaching, police were concerned that enforcement (such as removing people or ticketing/towing vehicles) risked escalation of violence, potentially turning into riots and/or risking serious injury to officers. (This concern seems reasonable, supported by the activities and rhetoric of various extremist groups with notable presence in the Convoy.)

And a proper analysis of the administrative question, to my mind, has to assess the effect of that threat of violence. When a mob is violating any number of laws to advance their political goals, and they are impervious to enforcement based on a threat - even an implicit one - that attempts to remove them will result in violent escalation, my take is that this satisfies the statutory definition.

The government doesn't need to prove that there was large-scale violence, or even that there would have been large-scale violence, but only that they reasonably believed that there was a threat of serious violence. On these facts, that doesn't seem like a particularly tall order.

Put in simpler terms, I think a coherent read of the statute is that political protesters engaged in a purely economic blockade (of a road, border, bridge, rail line, etc.) doesn't and shouldn't engage the language of the Emergencies Act, because, presumptively, the police are capable of arresting the participants and removing the blockade. However, if the police are unable to do so by reason of a reasonable assessment that exercising their lawful mandate would result in serious violence, that can engage the language of the Act.

Conclusion

As much as pro-Convoy groups are doing victory laps in the wake of this decision, it's not the last word we'll hear on the subject, and it's not nearly the vindication of the Convoy that they were hoping for.

The judge's overall take on the admin law question - while I disagree with his disposition - has some unusual qualifiers, in that he hints at doubts as to the wisdom of the structure of the Emergencies Act: i.e. what he's really saying is that the statute should empower them to act in these circumstances, even though he doesn't think the language does that.

His overall take on the Charter issue is that the government had good reason to take the actions it did, but it should have approached them a bit differently.