The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.
Pandemic Policy and Pushback
While Americans argued over pandemic restrictions from the beginning, with opponents taking to the streets and the courts, lockdowns were more draconian in many other countries—including Canada.
“The onset of COVID-19 in March 2020 brought restrictions on personal activities and business activities across the country,” notes Statistics Canada. “The policies and mandates put in place to address the spread of COVID-19 were adapted as successive waves of the pandemic provided more data and insight on how the disease was affecting Canadian society.”
As elsewhere, such measures initially won compliance. But as business closures and other restrictions took their toll on people’s livelihoods and their sanity, angry Canadians sued, agitated, and protested against vaccine mandates and lingering restrictions. In January 2022, the Freedom Convoy, which started with truckers, converged on Ottawa so participants could voice their concerns to the federal government. Compared to demonstrations pretty much anywhere else, the convoy was only mildly disruptive. But Canada isn’t accustomed to large displays of dissent.
“By the standards of mass protests around the world, the ‘Freedom Convoy’ snarling Downtown Ottawa ranks as a nuisance,” The New York Times editorialized on February 10, 2022. “The number of protesters, about 8,000 at their peak, is modest.”
Four days later, panicked by the modest nuisance, Prime Minister Justin Trudeau invoked the never-before-used Emergencies Act to authorize extraordinary measures against the protest. In particular, the government froze the bank accounts of over 250 people and businesses linked to the protest, without due process, and compelled reluctant towing companies to remove protesters’ trucks.
The move understandably proved controversial. The resulting court challenge by two people whose accounts were frozen, supported by the Canadian Civil Liberties Association and the Canadian Constitution Foundation, resulted in a federal court decision this week against the government.
Protest Is Not an Emergency
“I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration,” wrote Justice Richard Mosley.
Mosley found that, while the protest “reflected an unacceptable breakdown of public order,” it didn’t satisfy legal requirements for declaring a national emergency in terms of dangers to national security and threats of violence.
“Parliament’s intent in enacting the legislation was to ensure the Act would be a measure of last resort and, in particular, only where the provisions of existing Federal law could not handle the situation,” Mosley observed. “I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires,” a Latin phrase meaning “outside the law.”
As a result, he added, “the decision to issue the Proclamation was unreasonable and led to infringement of Charter rights.”
Surprise Victory for Liberty
The ruling that the Trudeau government’s actions violated Canada’s Charter of Rights and Freedoms may surprise some Canadians, since it hasn’t provided much protection in the past. The charter’s protections are, well, squishier than those of the U.S. Bill of Rights.
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” the document hedges in Section 1.
“The existence of Canada’s limitations provision was controversial back when Canadians were actually debating what the charter ought to look like,” the National Post‘s Tyler Dawson observed two years ago in a piece on failed attempts to challenge pandemic restrictions by citing the Charter. “Peter Hogg, one of the leading authorities on Canadian constitutional law, wrote that of the 46 groups that addressed Section 1 in their discussions of how to improve the charter, 38 of them said it had to go.”
Under Charter protections, Dawson noted, “it’s relatively clear the courts have not been sympathetic to the idea that public-health measures have unreasonably infringed upon Canadians’ rights.”
Given the Charter’s weaknesses and coming after a mandatory government review of the use of the Emergencies Act that hemmed and hawed its way through signing off on the proclamation, Mosley’s decision represents a welcome surprise for both opponents of restrictive public health policies and for advocates of free and open dissent.
“The invocation of the Emergencies Act is one of the worst examples of government overreach during the pandemic and we are very pleased to see Justice Mosley recognize that Charter rights were breached and that Cabinet must follow the law and only use the Act as a tool of last resort,” commented Canadian Constitution Foundation Executive Director Joanna Baron.
A Big Decision with Political Implications
The decision comes as Canadians grow disenchanted with restrictive government policies as well as with the guy behind them.
“Lockdowns and vaccine mandates hit a nerve and mobilized populists who denounced it all as an encroachment on personal freedom,” Politico‘s Zi-Ann Lum wrote earlier this month. “The ‘Freedom Convoy’ showdown demonstrated that Trudeau could win a fight over substance — he prevailed in a legal battle over his emergency crackdown — but lose in a war of sentiments.”
Since then, Trudeau appears to have lost the legal battle too, with this week’s court ruling. As the decision sinks in, his approval sits at a sub-Biden-esque 32 percent, with 64 percent disapproval, according to Angus Reid Institute.
Even lawmakers from Trudeau’s own Liberal party are flirting with the idea that he should step down.
The Canadian government immediately announced that it plans to appeal Mosley’s ruling against the use of the Emergency Act. Officials may ultimately save face in court, but it looks like tolerance for authoritarianism, and for the creatures who wield it, is waning north of the border.