Of mandates, misinformation, and misanthropy

By Bill Kilpatrick

On Jan. 16 the Federal Court of Appeal dismissed the appeals filed by the Attorney General of Canada regarding the invocation of the Emergencies Act during the 2022 so-called “Freedom Convoy.” The court upheld the 2024 decision by Federal Court Justice Richard Mosley who found that the invocation of the Emergencies Act did not meet the legal threshold required to invoke the act, and that the government invoked the act without reasonable grounds. In its decision the appellate court stated, “The Federal Court correctly determined that the declaration of a public order emergency was unreasonable and that parts of the regulations and economic order infringed paragraph 2(b) and section 8 of the [Canadian] Charter [of Rights and Freedoms]. We are satisfied that the paragraph 2(b) infringement sufficiently accounts for the related right to assemble under paragraph 2(c)…”

The appeals were filed by the Canadian Civil Liberties Association and the Canadian Constitution Foundation, both of whom outlined, on their respective web pages, why the victory was important. Howard Sapers, Civil Liberty's Executive Director, stated that, “While the extraordinary powers granted to the federal government through the Emergencies Act are necessary in extreme circumstances, they also threaten the rule of law and our democracy.” He stated. Anaïs Bussières McNicoll, Director of the Fundamental Freedoms program at the Canadian Civil Liberties Association stated that “Legal thresholds do not bend, much less break, in exigent circumstances,” she stated. “Today's historic judgment puts this and future governments on notice: even in times of crisis, no government is above the law.”

The Canadian Constitution Foundation's web page stated that “The Court agreed with the Canadian Constitution Foundation that the government did not satisfy the strict legal threshold required to invoke the Emergencies Act, which allowed the federal government extraordinary powers such as the ability to make criminal laws by executive order. The Court also agreed with the CCF that the way the government froze bank accounts violated the right to security against unreasonable searches and seizures and that its de facto ban on travelling to or funding Freedom Convoy protests nationwide violated freedom of expression.”

This is a huge decision that on the surface gives the impression that the “Freedom Convoy” was entirely justified doing what it did, but on closer examination the ruling is strictly about upholding their fundamental Charter rights of freedom of thought, belief, opinion, and expression, freedom from unreasonable search or seizure, and freedom of peaceful assembly, not the “rightness” of the “freedom convoy's” cause.

For example, the Canadian Civil Liberties Association stated unequivocally that their “…judicial review challenging the federal government's invocation of the Emergencies Act was not an endorsement of the “Freedom Convoy” protests. CCLA condemned the reported acts of violence, racism and homophobia, and agreed that, given the protracted timelines and the extent of the disruption, the police needed to dismantle the blockades. However, the CCLA maintained there was no “public order emergency” as contemplated under the Act, and certainly not one that extended across the entirety of Canada. Existing laws could have—and should have—been used to address the situation, rather than the Emergencies Act.” It says a lot when the people defending your rights need to release a statement distancing themselves from your cause.

The appeal court's findings also pointed out that, “While many Convoy participants were peaceful, the Convoy also included high-decibel noise disruptions such as honking and fireworks. Exhaust fumes permeated the air and seeped into neighbouring properties. There were reported incidents of harassment, assaults, and intimidation. As the Federal Court noted, this created “intolerable conditions for many residents and workers in the district.”

The appellate court also noted that the “memorandum of understanding” that was presented by Canadian Unity, “one of the convoy organizing groups” that proposed “…to form a joint committee to assume government functions in return for which the Convoy would cease its occupation of Ottawa,” was “an effort by some of those involved in the Convoy to interfere with the democratic process and undermine the government.”

The findings further punched holes in many claims by organizers and attendees of the convoy that the occupation was peaceful and that there were no “extremists” involved. The Federal Court “…acknowledged that materials in the tribunal record included information that extremist elements were a part of the protest,” adding that the RCMP “identified participants who were members of an extremist organization, known as Diagolon.” The court also noted that “Other protesters were also wearing yellow Star of David emblems tagged with “anti-vaxx” or displaying flags with swastikas, Confederate flags, and Nazi SS symbols.”

In fact, according to Canadianlawyermag.com, in his findings from the 2024 court case Justice Mosley “expressed ‘considerable sympathy for those in government who were confronted with this situation'” further stating “Had I been at their tables at that time, I may have agreed that it was necessary to invoke the [Emergencies Act].”

A brief timeline, given in the appeal court's findings, shows the severity of the situation. In response to the Nov. 19, 2021 announcement from the Public Health Agency of Canada which stated “that as of January 15, 2022, certain groups of travellers, including essential service providers such as truck drivers…would now be required to be fully vaccinated,” a convoy of trucks left Prince Rupert for Ottawa on Jan. 22 arriving on Jan. 28. As a result “The downtown core and Parliamentary Precinct were ground to a halt by the ensuing occupation of the blockade of Convoy trucks and other vehicles.” Things then moved quickly:

• “The Ottawa Police Service Chief declared on February 2, 2022, that ‘there may not be a policing solution' and ‘there need to be other elements brought in to find a safe, swift and sustainable end to this demonstration that's happening here and across the country'
• On February 6, 2022, the Mayor of Ottawa declared a state of emergency.
• On February 7, 2022, the Provincial Operations Intelligence Bureau of the Ontario Provincial Police (OPP) identified the Convoy as a “threat to national security” and requested 1,800 additional police officers.
• On Feb. 11, 2022 Ontario Premier Doug Ford declares state of emergency
• Beginning in January blockades are erected at multiple border crossing across the country in solidarity with the convoy one of which, in Sweetgrass-Coutts in Alberta, contained a “large cache of weapons, including 14 firearms, a large supply of ammunition, high-capacity magazines, and body armour, some of which were marked with the Diagolon insignia.”

Despite the potential threats the court concluded that “As disturbing and disruptive the blockades and the Convoy protests in Ottawa could be, they fell well short of a threat to national security.” The court pointed to a CSIS threat assessment that, according to the Canadian Constitution Foundation, “had found no threat of serious violence” adding that the government of the day did not give the assessment sufficient “weight” before they invoked the Emergencies Act.

The main lesson that I take away from this, and so should all Canadians, is that the court argued not that the convoy's removal was illegal, but the use of the Emergency Act to do it was illegal. It appears that the court would have preferred a more surgical dismantling of the “freedom convoy” occupation that did not criminalize the actions of those who were there peacefully protesting or donating funds. While I agree that peaceful protestor's rights need to be upheld, this does not change the fact that the freedom convoy was fueled not by the mandates themselves, but by anti-vaccination misinformation and disinformation coupled with misanthropy, and extremism. Things that need to be dealt with if we are to avoid another misinformation occupation.