Can Government Declare an Emergency to Silence Dissent?

What happens when a government turns its most powerful emergency legislation against its own citizens for honking horns? 

This episode examines one of the most consequential constitutional rulings in recent Canadian legal history: the Federal Court of Appeal's decision finding that Prime Minister Justin Trudeau's invocation of the Emergencies Act against the 2022 Freedom Convoy protest was unlawful. 

Gavin Tighe and Stephen Thiele dissect the court's rigorous analysis of the Charter of Rights and Freedoms, specifically the Section 2 protections for political speech and Section 8 protections against unreasonable search and seizure, and ask the harder question: when government wields extraordinary power and achieves its objectives, does a court ruling after the fact actually matter? 

Listen For:

2:17 What qualifies as a true national emergency in Canada?
5:43 Why was the Emergencies Act invoked during the Freedom Convoy protests?9:31 Why did the Federal Court rule the Emergencies Act was used improperly?
17:31 Can the government freeze your bank account for supporting a protest?
22:46 Should extreme government powers ever be used to stop civil disobedience?
 

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Stephen Thiele

(00:00)

A hundred percent. I mean, you can look at other things that impact somebody's ability to earn a livelihood. And if you put yourself in that person's shoes, you can understand why they're angry and why they want to protest or why they have a different view or a different opinion, whether it's their employer or government.

Gavin Tighe

(00:24)

Hello and welcome to the next episode of Beneath the Law. I'm Gavin Tighe here with Stephen Thiele. Stephen, how are you tonight?

Stephen Thiele

(00:31)

I'm okay, Gavin. We're still in frigid, frigid Toronto. You look like you're in a warm place — are you ready to play some music?

Gavin Tighe

(00:42)

Well, you're seeing my secret stash back there. Is that a secret tax? I'm a bit of a guitar collector, so—

Stephen Thiele

(00:51)

That's—

Gavin Tighe

(00:51)

A few of the items in the museum of natural guitar history.

Stephen Thiele

(00:57)

But you're a pretty good musician. I'm not musically inclined, Gavin, but you've got some good skills that way.

Gavin Tighe

(01:06)

I used to be a good musician until I wrecked my hand and now I can't play guitar anymore.

Stephen Thiele

(01:11)

Are you going to sue somebody for that?

Gavin Tighe

(01:14)

Unfortunately, I have nobody to sue but myself and I'll never collect. My joke was — it's a stupid thing, but my joke to everyone has been is the worst kind of injury because I fell in my own house, which is the worst. So my legal advice to all of our listeners is: if you're going to fall, make sure it's in somebody else's house who has lots of insurance. But no, I didn't follow my own good legal advice, which is why the old saying is when you represent yourself, you have a fool for a client. So there you go. I guess—

Stephen Thiele

(01:50)

Well, Gavin, we need you here at the firm, so please don't slip and fall anywhere else and create any other injuries because that's not good. Sacrifice somebody else next time.

Gavin Tighe

(02:02)

Yeah, no. Yeah. Well, I have no one to blame but myself, unfortunately. Oh, wow. And I'd love to say that it was some great parachuting accident, but I wouldn't even get into how stupid it was. Anyways, today we're going to talk about—

Stephen Thiele

(02:15)

Were there some protestors in front of your house?

Gavin Tighe

(02:17)

No. Yeah. I was rushing to get to a protest. So we live in a very tumultuous time. There is no doubt that it's remarkable at the moment how divided the world has become, and not just Canada, certainly. I'd say Canada, probably less so than many places, but certainly we're seeing out of the United States the incredible protests that are occurring about ICE and the shootings in Minnesota. In Iran, we're seeing another uprising that's almost like an Arab Spring 2.0 that again is being quelled mercilessly by a tyrannical regime. So we see the power of government in both aspects of those issues being turned on the citizens of a given country who are protesting the government. In other words, the citizenry in both of those instances are speaking out, exercising what many feel would be — certainly in the United States — their constitutional right to protest, and being met with, certainly in both of those instances, deadly force by government in response to protest.

(03:42)

I mean, you can look at the shootings in Minnesota, both of which are on video, which is incredible. I guess that's the day and age we live in where everything's on video. But depending on which side of the spectrum you're on, it's amazing to me that two people can watch the same video and come away with two totally different takes on it. Although the second video was a little difficult to understand — why someone lying on the ground would be shot. But anyways, it's easy. So at the same time, I'm certainly not an apologist, but I think law enforcement are often under incredible pressure and strain. Having said all of that, we in Canada are certainly not immune to issues where government has taken what I will call extreme steps to quell civil disobedience, unrest, and what some would say is a constitutionally protected right to protest. And in Canada, we recently had a decision out of our federal court dealing with what was colloquially referred to as the Trucker Convoy or the Freedom Convoy, depending on which side of the spectrum you are.

(04:57)

It's amazing. Again, the nomenclature that describes an event gives away your view of that event. So depending on which side you're on, there were a bunch of truckers honking their horns in Ottawa. Let's put it that way.

Stephen Thiele

(05:13)

Well, I think it was just more than truckers, but—

Gavin Tighe

(05:16)

Well—

Stephen Thiele

(05:17)

But they were the primary lead. Sure.

Gavin Tighe

(05:19)

It started with truckers and probably expanded to everyone who had a bone to pick with the government. And our government here invoked what used to be called the War Measures Act — the Emergencies Act — and that issue has now gone up through the court. So maybe you can give our listeners a bit of the judicial background of how that came about.

Stephen Thiele

(05:43)

Yeah. So this was a protest that ended up occupying the parliamentary district in Ottawa, our nation's capital here in Canada for — I guess it was what — three to four weeks. It arose out of the COVID-19 requirements to be vaccinated. And essential service workers, which included truck drivers, didn't need to be vaccinated until approximately — I guess it was January 15th of 2022 or thereabouts — which sparked the truckers who now needed to get their COVID-19 vaccines, which many of them did not get, to start a— And didn't want to get. Yeah, and didn't want to get, to start a protest which started in Western Canada and wound its way across the highways to Ottawa. And as it continued to proceed to Ottawa — Western Canada's about, what, a two and a half day drive, three day drive across Canada on the highway — it picked up steam and picked up others.

(07:10)

And at the time there were blockades — we remember this one well — at the Windsor Bridge, because the government there, the municipal government, actually got a court order and an injunction against the people that were blockading the bridge, and a court made an order and police went in and cleared it up pretty fast.

(07:35)

There were some other blockades in some other provinces. In Alberta, some of the protestors had weapons. The RCMP went in around the same time and cleared out that protest. They made some arrests, but Prime Minister Trudeau — or then Prime Minister Trudeau; he's no longer our prime minister, and I won't editorialize there — but he decided—

Gavin Tighe

(08:05)

We'll talk about that later. It's funny — his career path... he's graduated now to be Katy Perry's boyfriend, but anyway—

Stephen Thiele

(08:11)

Well, who knows what's going on. Far more important—

Gavin Tighe

(08:13)

Job. Anyways, sorry, couldn't help it.

Stephen Thiele

(08:20)

So anyway, he invoked what is called the Emergencies Act and the federal government decided to impose certain regulatory orders to quash the protest. And those regulatory orders included banning people from assembling and protesting, whether they were peaceful or violent, and basically prohibited others from supporting the protestors, either through giving food or water or funding. And that was quite a controversial order, given that the blockades had been cleared in other places. And it wound its way through a — sorry — a public inquiry, and it's wound its way through to the Federal Court of Canada, which on January 26th released a decision saying that the government improperly used the Emergencies Act to make these orders.

Gavin Tighe

(09:31)

Yeah. So let's go back just in terms of the architecture of those decisions. So the original public inquiry that was held into the use of what is now called the Emergencies Act said that it was appropriate. It was properly used. It was basically no issue. And that finding is what was judicially reviewed by the federal court. And then the federal court said no, that finding was wrong. It was not properly utilized. There was no legitimate basis for the invocation of the Emergencies Act, which is designed basically... It used to be called the War Measures Act, and I think we could reason that it was primarily there to give government extraordinary, incredible power to deal with wartime-type issues. In other words, where the security of Canada as a nation was in jeopardy and the government didn't have time for the niceties of usual civil liberties — of protest, et cetera — and had to clamp down real hard on citizens' rights.

(10:49)

And the federal court and the Federal Court of Appeal, in my reading of it, said, "No, the security of Canada was not threatened by a bunch of yahoos, frankly, honking their horns in Ottawa." It was obnoxious, and they looked at the way that other governments — the provincial government, both here and in Alberta — had managed to, I think, quite swiftly and efficiently dismantle similar protests that were congealing at entry points along the border and said, "That was your model." And this notion of letting this get to the point it did — where they were locking up people's bank accounts, there was all the videos of the horses charging, et cetera — really, they let the situation get out of hand, and then they invoked this extraordinary legislation to clean up their own mess.

Stephen Thiele

(11:53)

Yeah. So just falling back a little bit further, Gavin. So the War Measures Act was very vague in terms of when government could invoke it. And Prime Minister Justin Trudeau's father, Pierre Elliott Trudeau, when he was prime minister, used the War Measures Act during the 1970 October Crisis in Quebec to quash what were basically terrorist activities in Quebec only, and it was very controversial that he invoked the War Measures Act. So then you had legislative change, which built in to the Emergencies Act basically a reasonableness requirement in order to use it. And that really became the crux of what the court was looking at — whether it was reasonable, whether there were reasonable grounds to invoke this statute, and was there a threat to national security or not? It looked like what government was doing was they were putting these orders and regulations into place because they were concerned about the supply chain more than anything else.

(13:19)

The protestors didn't have guns or bombs or rifles. There was no insurrection, certainly at Parliament Hill. And frankly, other than the Coutts, Alberta incident where there were weapons, the protestors were not violent. They were peaceful protestors. They had parked their trucks in the middle of the street and were creating havoc in downtown Ottawa, but nobody was really — other than a handful of incidents that happened because of certain folks who were out of control — they were largely peaceful protests. And what was the government concerned about? That their policies were being threatened or questioned? I think—

Gavin Tighe

(14:10)

Former Prime Minister Trudeau didn't like a lot of the flags, which certain people had associated with his name. So I think he was quite offended by that.

Stephen Thiele

(14:22)

Well, look, government had to make some very difficult decisions at the time, but the protestors — people in a free democracy — can certainly chant and protest. Now, interestingly enough, what I think is important here for us as Canadians is that there was actually a process that was followed in terms of government. Government didn't send out the military against people. The police weren't really there, which was a problem in Ottawa because the police didn't know how to respond, but there wasn't a threatening "us versus them" mentality between police and the protestors, unlike what we've seen in certainly Iran, where thousands of people, I understand, were killed by the government, thousands more were arrested, and I think they were threatened with execution. Minnesota and what has happened in Minneapolis is, to me, different and distinguishable from that, but you do have police and protestors certainly creating some very tense moments, which unfortunately has led to the death of two of those protestors there.

(15:44)

But remarkably in Canada, there was a process that was followed, and we're seeing that that has followed through the court system.

Gavin Tighe

(15:52)

Yeah. It was review after the fact. I mean, with the Federal Court of Appeal, I think it is important — they imposed an exacting standard to be applied to the declaration of a public order emergency. It's not just, "I don't like what these guys are saying," that gives government the right to do that. And while blockades are disruptive and disturbing, the convoy protest was not found to be a threat to national security. And I think if we step back — well, of course it wasn't a threat to national security. I mean, this isn't an invading force. It isn't a group that is a militia that was armed and seeking through force to take over control of, I don't know, government property or a territory or what have you.

Stephen Thiele

(16:37)

It certainly wasn't Olympus Has Fallen, right?

Gavin Tighe

(16:40)

Yeah. So I think that threshold is necessary. But what's troubling to me is — okay, they did it, it achieved its objectives, ended pretty quickly once they invoked the act because they gave themselves all sorts of powers. They literally gave themselves the power to arrest and detain and freeze bank accounts — and sue people who freeze bank accounts — of people who were donating. They came up with lists; anyone who donated to the truckers was on the list. It was a pretty intense witch hunt that went on. And if the impact — if the purpose of it was to shut down the protest — it achieved its purpose.

Stephen Thiele

(17:31)

Well, it certainly did that, but—

Gavin Tighe

(17:34)

Unlawfully, as the Federal Court of Appeal has now suggested. But so what? It's—

Stephen Thiele

(17:40)

Done. Well, that's true, but it was certainly remarkable orders because I think the biggest thing that shut down the protest was the shutdown in the funding. And the fear that other Canadians had: if I donate to a... It's like donating to a political party — the bank is going to shut down my account. That's terrifying. Look, the banks are pretty powerful. If they think that you're part of organized crime, for example, they don't need to — they will debank you. They don't need to deal with you as a customer. Then where do you go?

Gavin Tighe

(18:22)

It's terrifying. I mean, I've had that happen — or I've heard of that happening — in a number of cases that we've been involved in where there's been accusations of fraud, and that's all it takes. And a bank says, "You know what? Too hot for us. Go take your business somewhere else." And in Canada, there's a very limited choice of where you can take your business. And at a certain point, you're going to run out of options. And so that ability to debank someone — and I just sort of digress — I understand that Trump has got a lawsuit going on against a financial institution with respect to them debanking him as well. So it's a pretty powerful weapon in the arsenal of a bank. I don't know how much recourse there is. I mean, you can't force a bank to do business with you if they don't want to.

Stephen Thiele

(19:12)

Not that I'm aware of. I've never heard of that.

Gavin Tighe

(19:15)

Do they want to deal with it? Unless it's obviously — if it was some protected ground under a human rights issue, like race or sexual orientation — sure, then you'd have a remedy. But if they just decide for whatever reason that they think you're a sketchy character, they decide for whatever reason they want to say, "You know what? Take your business elsewhere." They're a private company. What right do you have to say, "No, I have a right to—"

Stephen Thiele

(19:44)

Bank here."

Gavin Tighe

(19:44)

It says who?

Stephen Thiele

(19:47)

I agree. And I guess, Gavin, you're right. In terms of there's a little bit of mootness involved in the lawsuits because the protest ended—

Gavin Tighe

(19:59)

Yeah. I mean, the lawsuits—

Stephen Thiele

(20:00)

Remarkably quickly, right?

Gavin Tighe

(20:02)

The judicial reviews that have occurred — I mean, I think it reminded me a bit of an autopsy. It doesn't help the corpse very much; it's still dead. So I mean, yeah, now we know that the government's use of it was improper and that... I mean, I think any reasonable observer, unless you were completely enthralled with the government's point of view, would think it's a bit much. It was a bit of overreach and overkill on the part of government to invoke the Emergencies Act in respect of a bunch of protestors in Ottawa, whereas other protesters have been dealt with so nicely. We've seen protests, encampments at universities, et cetera, that have been dealt with kid gloves. And here we've got the Emergencies Act. So I think most people — the truth be told — knew intuitively that this was overreach by government. And that's what the federal court has said exactly—

Stephen Thiele

(21:05)

That. Well, look, it's very interesting. What I take away from this case — or the entire use of the Emergencies Act and what the courts have reviewed — is that there are options. So what happened in Windsor: there was an injunction, right? They were blocking the street. You can't park your car on the street and have a blockade. It's against the law.

Gavin Tighe

(21:34)

Yeah. Well, try it during rush hour. See how fast the tow truck will be pulling up in front of—

Stephen Thiele

(21:38)

You. Exactly. And so for the federal government to have invoked the Emergencies Act to clear the streets — there were options. And in fact, in Ottawa, there was actually an injunction that was granted to residents to prevent the honking of the horns at all hours of the night because that was considered to be a nuisance. And so—

Gavin Tighe

(22:05)

Yeah, I guess that would be a definite nuisance.

Stephen Thiele

(22:10)

Yeah, you'd be—

Gavin Tighe

(22:11)

Praying for deafness.

Stephen Thiele

(22:12)

And. Well, exactly. And the police — the Ottawa police — could have used the Ontario Provincial Police; the RCMP could have been called upon. But instead the government used this legislative weapon—

Gavin Tighe

(22:32)

Option, right?

Stephen Thiele

(22:34)

Exactly.

Gavin Tighe

(22:35)

This is the most extreme recourse that government has. And the question becomes: shouldn't the most extreme recourse only—

Stephen Thiele

(22:46)

Be for the most extreme of problems? Right. And so we've talked about Prime Minister Trudeau. I think this was basically the death knell of him as Prime Minister because how dare he and his government invoke a piece of legislation that deliberately impacted the rights of lawful protestors. Protesting and political speech is our most fundamental right as Canadians and that—

Gavin Tighe

(23:23)

Yeah. And I think we need to think about that for a minute because ultimately the right to protest and voice dissent is exactly that. The people who do not agree with government policy are the ones who dissent. They are the ones who protest. So governments are never going to get what they want to hear out of a protest because ultimately protests are always going to be against government by—

Stephen Thiele

(23:52)

Definition. Right. And you're never going to get a hundred percent support on any policy.

Gavin Tighe

(23:59)

Right.

Stephen Thiele

(24:00)

Right. It just won't happen.

Gavin Tighe

(24:02)

No. And I mean, I think the mandatory vaccination mandates that were in place for truckers, for example, that basically deprived them of their ability to make a livelihood — that really rose to that issue. Can government compel you to get a vaccination? I mean, we just went through that situation. Ultimately, that's what they were protesting, isn't it? Amongst other things. But fundamentally, the primary issue was that cross-border truckers couldn't make a living unless they were vaccinated. They couldn't get back into Canada.

Stephen Thiele

(24:42)

A hundred percent. I mean, you can look at other things that impact somebody's ability to earn a livelihood. And if you put yourself in that person's shoes, you can understand why they're angry and why they want to protest or why they have a different view or a different opinion, whether it's their employer or government.

Gavin Tighe

(25:06)

Yeah. Well, I—

Stephen Thiele

(25:07)

Mean—

Gavin Tighe

(25:08)

The history — I mean, it would be interesting to see how history views the vaccine mandates imposed by many, many governments around the world and how it looks at those laws and the way they were enforced in 50 years from now, for example, when everybody's passion on this has cooled a bit.

Stephen Thiele

(25:30)

Well, unless there's another strain of some virus that causes government to try and do the same thing, it certainly has changed our world. I—

Gavin Tighe

(25:40)

Think it's changed our world significantly, but I also think — and I don't know, I haven't looked at the statistics to back this up — but you see things, for example, like measles coming back as a problem. Right. Why? I think the COVID vaccines, generally speaking, wore out a lot of people's confidence in vaccinations generally. And so people now approach a lot of vaccinations differently. Maybe it's because of social media, disinformation, whatever the reason, but people are far more skeptical about vaccinations generally now than they were pre-COVID.

Stephen Thiele

(26:23)

Well, particularly this vaccination, because again, the information that people were being given is that this was an experimental form of vaccine. If you recall, this was — I think it's called an mRNA process — which is not your traditional vaccination where you take the actual virus to create the vaccine. And so it was a lot different, and people were hesitant because it involves linking and changing or attaching to your DNA. Well, there's a lot of things—

Gavin Tighe

(26:59)

People were told. Well, exactly, right? We proved to be... I mean, in fairness — I'm certainly not a vaccine denier — but there were a lot of things that people were told point blank that just were not true. I mean, the government in the United States, for example — I can recall Joe Biden saying, "This is a pandemic of the unvaccinated." The truth of the matter was that you could get COVID after the vaccination. I had three of them and I got it. So its efficacy certainly was not what it was sold as. And anyone who says it is, I think has been proven wrong. Plus, I think they're now admitting that, oh yeah, there were side effects. And for example, there were heart issues with younger males — a disproportionate number of them had cardiac issues. So look, there was lots of misinformation spun around on all sides of this issue, but the point being is that the government's reaction to it — on all sides of the issue — the invocation of the most draconian legislation that Canada has to shut down a protest is very, very troubling.

(28:13)

Just as troubling, frankly, as the use of deadly force in Minnesota to quell the voices of people who didn't like — don't like — the use of the ICE task force and their paramilitary organization in Minnesota to enforce immigration—

Stephen Thiele

(28:34)

Law. Well, I don't know if they're a paramilitary. They dress—

Gavin Tighe

(28:41)

Like urban assault soldiers.

Stephen Thiele

(28:44)

Like soldiers on the street corner. No, but look, it's unfortunate and tragic what happened. And I don't know if the commander there of the ICE agents had a different view in terms of how to handle a protest. We've seen this certainly in Toronto policing — lack of training in certain areas does lead to police officers shooting people who should not be shot.

Gavin Tighe

(29:16)

That's—

Stephen Thiele

(29:16)

Happens.

Gavin Tighe

(29:16)

And it's easy — real easy — for everyone to sit in the comfort of their living room watching a slow-motion video saying, "I can see it." But try putting yourself in that situation happening in real time when you're scared. Police officers want to go home at night just the same as everybody else, and you're scared, and you think that your life is in danger. And there's an imprecision — it's easy in hindsight to look at... I mean, it's easy to watch the replay, but try being in the game. It's very different.

Stephen Thiele

(29:50)

No, so look, it's a very interesting situation. I think we might be doing a podcast on a different issue in terms of what's happened in Minneapolis involving some journalism soon. But look, for our listeners, the Federal Court of Appeal case is very dense. It's a 167-page decision. But I commend certainly folks like law students or people who are interested in constitutional law to give it a careful read with respect to the Section 2 and Section 8 analysis — Section 8 dealing with search and seizure — and really getting some good content out of there as to how strong the protections are for the rights under Section 2, particularly political speech, and Section 8 rights to be protected against unreasonable search and seizure.

Gavin Tighe

(30:54)

Yeah. Which were trampled on, frankly, with the use of the Emergencies Act.

Stephen Thiele

(30:59)

I think—

Gavin Tighe

(31:00)

Was the finding. A fascinating discussion as always, and interesting to me what comes of it — whether or not we will see civil litigation arising out of that, relying on these findings or not. It remains to be seen whether that will be the case. But at the moment, I mean, I don't know that the government has suffered a whole lot of consequences. Justin Trudeau has moved on, as I said, to bigger and better things.

Stephen Thiele

(31:33)

And a number of his ministers have moved on.

Gavin Tighe

(31:35)

Yeah, but the government remains. I mean, the majority of Members of Parliament who are under the Trudeau government remain Members of Parliament and they remain in government.

Stephen Thiele

(31:46)

Well, we're a liberal country, Gavin. Indeed we are. Indeed, we are — both small "l" and large "L".

Gavin Tighe

(31:58)

In any event, Stephen, I guess it goes to show that even the government — if no one is above the law, then everyone is beneath it. Thanks again. Please send us your comments, criticisms, and ideas for new show ideas. Stephen, take care and stay warm. Thanks. You too.