Federal court hears preliminary arguments in Emergencies Act legal challenge

The CCF says the core of its case is that the government already had all the tools it needed to end the occupations without resorting to the nuclear option of the Emergencies Act

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Arguing transparency over what they allege is needless secrecy, a Canadian civil rights organization took their fight for document disclosure surrounding February’s Emergencies Act invocation to court on Monday.

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Lawyers for the Canadian Constitution Foundation (CCF) made their case in a Federal Court of Canada hearing Monday morning, seeking the release of unredacted documents and minutes of both cabinet and Incident Response Group (IRG) meetings leading up to the federal government’s decision in February to use the Emergencies Act to force an end to ongoing Freedom Convoy protests.

“If the government made better decisions about what record to put before this court — a proper record — then we would not be here,” said CCF counsel Sujit Choudhry during the hearing.

“We are here because the government has left us no choice to try and get the truth.”

Monday’s judicial review hearing was part of the CCF’s broader legal challenge against the Trudeau government’s decision to enact the act.

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The Canadian Civil Liberties Association (CCLA) is also challenging the act.

Prime Minister Justin Trudeau announced the invocation of the act during a Feb. 14 press conference, giving the federal government broad powers allowing police to seize bank accounts and end ongoing Freedom Convoy blockades of downtown Ottawa streets and land border crossings — even though the latter had largely been cleared away by local police by then.

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February 14 marked the first time the Emergencies Act was invoked since going on the books in 1988 as a replacement to the War Measures Act.

“The scope of these measures will be time limited, geographically targeted, as well as reasonable and proportionate to the threats they are meant to address,” the Prime Minister said at the time.

“This is about keeping Canadians safe, protecting people’s jobs and restoring confidence in our institutions.”

Canada’s convoy response was handled by the Incident Response Group (IRG,) a secretive closed-door committee chaired by the Prime Minister and consisting of ministers and senior government officials.

Founded in 2018, the IRG is described as a “a dedicated, emergency committee that will convene in the event of a national crisis or during incidents elsewhere that have major implications for Canada.”

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The first public acknowledgement of an IRG meeting came in October 2018 following the murder of Washington Post columnist Jamal Khashoggi inside the Saudi Arabian embassy in Istanbul, Turkey.

Rights groups took a dim view of this justification, and are demanding the federal government shed light on the decisions that lead to it.

The CCF would launch a legal challenge to the invocation just days later, arguing the threshold for declaring a public emergency hadn’t been met, followed by their formal legal challenge later than month.

The core of the CCF’s case, Choudhry told the National Post, is that the government already had all the tools it needed to end the occupations without resorting to the nuclear option of the Emergencies Act.

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“There’s no evidence that they wouldn’t have been legally effective in addressing the border blockades and the Ottawa protest,” he said.

Other measures, including the government seizure of financial accounts, also violated Sec. 8 of the Canadian Charter of Rights and Freedoms, Choudhry argued.

The government and cabinet spent the subsequent months being grilled for their decision — particularly previous statements and committee testimony by Public Safety Minister Marco Mendicino that the request to invoke the Emergencies Act came from police.

That assertion was disproved by both Ottawa’s Interim Police Chief Steve Bell and RCMP top cop Brenda Lucki — both of whom told House of Commons committees they never asked federal lawmakers to invoke the act.

Cabinet members testified the government “had no choice” but to invoke the act in order to clear Ottawa’s streets after three weeks of protests.

Federal Court Justice Richard Mosley reserved his decision.

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