Freedom Convoy: Which Charter rights did the Emergencies Act breach?

February 17, 2024 Canuck

Protesters with the “Freedom Convoy” movement are in Ottawa this weekend to mark the second anniversary of the massive police crackdown that removed the people and vehicles that had blockaded the city’s downtown core for three weeks in 2022.

The group plans to hold a gathering with speeches on Parliament Hill, followed by a march through downtown on Saturday.

Chris Dacey, an Ottawa resident who took part in the demonstration two years ago, said Friday there is not expected to be any kind of vehicle protest this weekend.

Freedom Convoy supporters are celebrating a recent federal court ruling that found that the federal government’s invocation of the Emergencies Act was unreasonable and violated some of the protesters’ Charter rights.

“It’s a hollow victory for us,” said Convoy participant Derek Noonan at a news conference on Friday. “And is a hollow victory for us because of what had occurred. People’s lives have been disrupted, maybe changed forever, all for the right to fight for the freedoms that we have in this country.”

However, Federal Court Justice Richard Mosley did not agree with all of the arguments put forth by the applicants in the case that led to the ruling and said that some Charter rights were not infringed upon.

The applicants — Canadian Frontline Nurses and the Canadian Civil Liberties Association — argued that the government infringed upon sections 2, 7, and 8 of the Charter of Rights and Freedoms.

Here is what Justice Mosley found.

Freedom of expression – Breach

Section 2 guarantees freedom of expression, peaceful assembly and association.

Mosley agreed that the powers granted by the Emergencies Act did infringe upon freedom of expression, insofar as the eventual crackdown by police to remove those who were entrenched in the core and refused to leave could have caught up anyone at the protest, regardless of whether they were breaching the peace.

“Protests are inherently disruptive and are constitutionally protected political expression that goes to the core of the freedom,” Mosley wrote.

“I agree with the Applicants that the scope of the Regulations was overbroad in so far as it captured people who simply wanted to join in the protest by standing on Parliament Hill carrying a placard. It is not suggested that they would have been the focus of enforcement efforts by the police. However, under the terms of the Regulations, they could have been subject to enforcement actions as much as someone who had parked their truck on Wellington Street and otherwise behaved in a manner that could reasonably be expected to lead to a breach of 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.”

Freedom of peaceful assembly – No breach

The applicants argued that the prohibition on public assemblies that could lead to breach of peace effectively prohibited any assembly before it started; however, Mosley agreed with the government in this case, and said that the occupation of downtown Ottawa was not constitutionally protected.

“The legislation clearly permits special measures to prevent public assemblies that will likely lead to a breach of the peace. The evidence supports a finding that the notion of blockading and occupying the downtown core of the Nation’s Capital and other major centres, including cross border ports of entry, with massive trucks, falls within the scope of the authorizing enactment,” he wrote.

“I agree with the Respondent that ‘gatherings that employ physical force, in the form of enduring or intractable occupations of public space that block local residents’ ability to carry out the functions of their daily lives, in order to compel agreement [with the protestors’ objective] are not constitutionally protected.’

“I therefore find no breach of the Charter right of peaceful assembly.”

Freedom of association – No breach

The applicants argued that prohibiting public gatherings infringed upon their ability to associate with others in pursuit of a common goal.

Mosley, however, noted that participants were free to associate with each other in many other ways.

“In my view, the special measures adopted to deal with the occupation of Ottawa and blockades at other locations did not infringe upon the participants’ freedom of association. They were free to communicate with each other in pursuit of their collective goals and form whatever organization they thought necessary to do so elsewhere. I find no breach of Charter section 2(d),” he wrote.

Life, liberty and security of the person – No breach

Section 7 of the Charter guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In the case of the Emergencies Act, the legislation allows for possibility of imprisonment for anyone who is convicted of failing to comply with the special measures created by the invocation of the Act.

The applicants argued that the restrictions were overbroad, applying to anywhere in Canada.

“The fact that the Regulations were only in force for 9 days and not used outside of ‘red zones’ does not alleviate the section 7 problem, according to the Applicants. During those 9 days, they applied to places where no Convoy-related protests had occurred or were expected to occur,” Mosley wrote.

But he concluded that there was a reasonable risk of new protests popping up elsewhere.

“It is likely that in considering what the scope of the Regulations should be; Cabinet and the [Governor in Council] (GIC) were concerned that they could be confronted with what might be described as a ‘whack-a-mole’ scenario. Whenever one blockade or occupation was contained, another would pop up at a different location. There was evidence of attempts to have convoy-style disruptions in other locations, such as downtown Toronto, at other border crossings and in Quebec,” he wrote.

Ultimately, Mosley found no breach of the Charter in this instance.

“At first impression, the extension of the temporary measures throughout the country including where no disruption had occurred would appear to have been overbroad. However, a party asserting a violation of section 7 must not only show that the impugned law interfered with or deprived them of their life, liberty or security of the person, which laws do all the time, but also that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v Canada (Attorney General) 2015 SCC 5 at para 55. In this instance, the deprivation was temporary in nature and subject to judicial review as these proceedings have demonstrated. In the result, I am not prepared to find a breach of section 7.”

Unreasonable search or seizure – Breach

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search will be reasonable under section 8 if it is authorized by law, if the law itself is reasonable, and if the search was carried out in a reasonable manner.

The argument in this case revolves around the freezing of bank accounts and the surrender of banking information to police.

Mosley did find breaches in this case.

“While the purpose of Charter s 8 is to protect privacy rights and not property, governmental action that results in the content of a bank account being unavailable to the owner of the said account would be understood by most members of the public to be a ‘seizure’ of that account,” he wrote. “Alternatively, I am satisfied that the disclosure of information about the bank and credit card accounts of the ‘designated persons’ by the financial institutions to the RCMP constituted a ‘seizure’ of that information by the government.”

Mosley was particularly critical of the RCMP’s handling of the economic orders.

“Making it up as they went along, the RCMP developed a template for sharing information with the financial service providers about persons believed to be directly or indirectly involved in activities prohibited under the Regulations,” he wrote.

“On cross-examination, Superintendent (Denis) Beaudoin acknowledged that the RCMP officers involved in this process did not apply a standard, such as reasonable grounds, before sharing information with the financial institutions.”

In total, the RCMP disclosed information on approximately 57 entities and individuals to financial service providers and approximately 257 accounts were frozen.

“In requiring the financial institutions to act on the instructions of the RCMP, in my view, the Economic Order effectively enlisted them as subordinates of the government,” Mosley wrote. “While the financial institutions were private entities and thus normally beyond the reach of the Charter, the activity in question here can be ascribed to government. The act was truly ‘governmental’ in nature to implement the temporary measures enacted by the GIC and thus brought the banks and other financial services providers within the scope of section 8 to the extent of that activity.

“I find that the failure to require that some objective standard be satisfied before the accounts were frozen breached s. 8.”

Furthermore, Mosley found that the infringements of freedom of expression and freedom from unnecessary search or seizure could not be justified under Section 1 of the Charter, which sets out reasonable limits.

The federal government said it is appealing Mosley’s ruling.

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