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Federal Court Judge Pulls Canada Back from the Brink

Published

10 months ago

10 minute read

From the Brownstone Institute

BY Bruce PardyBRUCE PARDY

Trucks blocked border crossings in Coutts, Alberta and at the Ambassador Bridge in Windsor, Ontario. Local and provincial law enforcement dealt with those protests and cleared the borders.

The Canadian government’s use of the Emergencies Act was unlawful. The Trucker Convoy did not constitute a national emergency. So said a judge of the Federal Court. The decision may help to pull Canada back from the brink of authoritarian rule.

The Federal Court decision contains four conclusions. Two prerequisites for invoking the Emergencies Act, said Justice Richard Mosley, were not met. Moreover, the two regulations issued under it were unconstitutional. Predictably, the government has promised to appeal. For the government to prevail, an appeal panel would have to overturn all four. But there is a wrinkle, which I will get to momentarily.

Between 1963 and 1970, the Front de libération du Québec (FLQ), a separatist organization in Quebec, committed bombings, robberies, and killed several people. In October 1970, they kidnapped British trade commissioner James Cross, and then kidnapped and killed Pierre Laporte, a minister in the Quebec government. In response, Pierre Trudeau’s government invoked the War Measures Act, the only time it had been used in peacetime. In the years that followed, the invocation of the Act became regarded as a dangerous overreach of government powers and breach of civil liberties.

The Emergencies Act, enacted in 1988 to replace the War Measures Act, had higher thresholds. It was supposed to be more difficult for governments to trigger. Before Covid and the trucker convoy, it had never been used.

The Freedom Convoy arrived at Parliament Hill in Ottawa on January 29, 2022 to protest Covid vaccine mandates. The truckers parked unlawfully in downtown Ottawa. They violated parking bylaws and probably the Highway Traffic Act. Authorities could have issued tickets and towed the trucks away. But they didn’t.

In the meantime, protests in other parts of the country emerged. Trucks blocked border crossings in Coutts, Alberta and at the Ambassador Bridge in Windsor, Ontario. Local and provincial law enforcement dealt with those protests and cleared the borders. By February 15, when Justin Trudeau’s government declared a public order emergency and invoked the Emergencies Act, only the Ottawa protests had not been resolved.

The government issued two regulations under the Act. One prohibited public assemblies “that may reasonably be expected to lead to a breach of the peace.” The other outlawed donations and authorized banks to freeze donors’ bank accounts. On February 18 and 19, police brandishing riot batons descended on the crowd. They arrested close to 200 people, broke truck windows, and unleashed the occasional burst of pepper spray. By the evening of the 19th, they had cleared the trucker encampment away. Banks froze the accounts and credit cards of hundreds of supporters. On February 23, the government revoked the regulations and use of the Act.

Governments cannot use the Emergencies Act unless its prerequisites are met. A public order emergency must be a “national emergency” and a “threat to the security of Canada,” both of which are defined in the Act. A national emergency exists only if the situation “cannot be effectively dealt with under any other law of Canada.” “Threats to the security of Canada” can be one of several things. The government relied upon the clause that requires activities “directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”

The trucker protests were neither a national emergency, Mosley concluded, nor a threat to the security of Canada.

There was no national emergency:

Due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. [Cabinet] cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces.…in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation…For these reasons, 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 threat to the security of Canada did not exist:

Ottawa was unique in the sense that it is clear that [Ottawa Police Services] had been unable to enforce the rule of law in the downtown core, at least in part, due to the volume of protesters and vehicles. The harassment of residents, workers and business owners in downtown Ottawa and the general infringement of the right to peaceful enjoyment of public spaces there, while highly objectionable, did not amount to serious violence or threats of serious violence…[Cabinet] did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Act and the decision was ultra vires.

Nor were the regulations constitutional. The prohibition on public assemblies infringed freedom of expression under section 2(b) of the Charter of Rights and Freedoms. Empowering financing institutions to provide personal financial information to the government and to freeze bank accounts and credit cards was an unconstitutional search and seizure under section 8. Neither was justified, Mosley concluded, under section 1 of the Charter, the “reasonable limits” clause.

To prevail on appeal, the government would have to reverse all four conclusions. Justice Mosley did not make obvious errors of law. But there are a couple of odd bits. In particular, Mosley admits to doubts about how he would have proceeded had he been at the cabinet table himself:

I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law…

Which brings us to the wrinkle. In April 2022, Richard Wagner, the Chief Justice of the Supreme Court of Canada, gave an interview to Le Devoir. Speaking in French, he characterized the protest on Wellington Street in Ottawa, where Parliament and the Supreme Court are located, as “the beginning of anarchy where some people have decided to take other citizens hostage.” Wagner said that “forced blows against the state, justice and democratic institutions like the one delivered by protesters…should be denounced with force by all figures of power in the country.” He did not mention the Emergencies Act by name. But his comments could be interpreted as endorsing its use.

The government’s appeal will go first to the Federal Court of Appeal but then to the Supreme Court of Canada. Its chief justice appears to have already formed an opinion about the dispute. Having made his public comments, the chief justice should announce that he will recuse himself from the case to avoid a reasonable perception of bias. That too would help bring Canada back from the brink.

Author

  • Bruce Pardy
    Bruce Pardy

    Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.

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COVID-19

Former Trudeau minister faces censure for ‘deliberately lying’ about Emergencies Act invocation

Published on December 20, 2024

By

From LifeSiteNews

By Christina Maas of Reclaim The Net

Trudeau’s former public safety minister, Marco Mendicino, finds himself at the center of controversy as the Canadian Parliament debates whether to formally censure him for ‘deliberately lying’ about the justification for invoking the Emergencies Act.

Trudeau’s former public safety minister, Marco Mendicino, finds himself at the center of controversy as the Canadian Parliament debates whether to formally censure him for “deliberately lying” about the justification for invoking the Emergencies Act and freezing the bank accounts of civil liberties supporters during the 2022 Freedom Convoy protests.

Conservative MP Glen Motz, a vocal critic, emphasized the importance of accountability, stating, “Parliament deserves to receive clear and definitive answers to questions. We must be entitled to the truth.”

The Emergencies Act, invoked on February 14, 2022, granted sweeping powers to law enforcement, enabling them to arrest demonstrators, conduct searches, and freeze the financial assets of those involved in or supported, the trucker-led protests. However, questions surrounding the legality of its invocation have lingered, with opposition parties and legal experts criticizing the move as excessive and unwarranted.

On Thursday, Mendicino faced calls for censure after Blacklock’s Reporter revealed formal accusations of contempt of Parliament against him. The former minister, who was removed from cabinet in 2023, stands accused of misleading both MPs and the public by falsely claiming that the decision to invoke the Emergencies Act was based on law enforcement advice. A final report on the matter contradicts his testimony, stating, “The Special Joint Committee was intentionally misled.”

Mendicino’s repeated assertions at the time, including statements like, “We invoked the Emergencies Act after we received advice from law enforcement,” have been flatly contradicted by all other evidence. Despite this, he has yet to publicly challenge the allegations.

The controversy deepened as documents and testimony revealed discrepancies in the government’s handling of the crisis. While Attorney General Arif Virani acknowledged the existence of a written legal opinion regarding the Act’s invocation, he cited solicitor-client privilege to justify its confidentiality. Opposition MPs, including New Democrat Matthew Green, questioned the lack of transparency. “So you are both the client and the solicitor?” Green asked, to which Virani responded, “I wear different hats.”

The invocation of the Act has since been ruled unconstitutional by a federal court, a decision the Trudeau government is appealing. Critics argue that the lack of transparency and apparent misuse of power set a dangerous precedent. The Justice Centre for Constitutional Freedoms echoed these concerns, emphasizing that emergency powers must be exercised only under exceptional circumstances and with a clear legal basis.

Reprinted with permission from Reclaim The Net.

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COVID-19

Australian doctor who criticized COVID jabs has his suspension reversed

Published on December 20, 2024

By

From LifeSiteNews

By David James

‘I am free, I am no longer suspended. I can prescribe Ivermectin, and most importantly – and this is what AHPRA is most afraid of – I can criticize the vaccines freely … as a medical practitioner of this country,’ said COVID critic Dr. William Bay.

A long-awaited decision regarding the suspension of the medical registration of Dr William Bay by the Medical Board of Australia has been handed down by the Queensland Supreme Court. Justice Thomas Bradley overturned the suspension, finding that Bay had been subject to “bias and failure to afford fair process” over complaints unrelated to his clinical practice.

The case was important because it reversed the brutal censorship of medical practitioners, which had forced many doctors into silence during the COVID crisis to avoid losing their livelihoods.

Bay and his supporters were jubilant after the decision. “The judgement in the matter of Bay versus AHPRA (Australian Health Practitioner Regulation Agency) and the state of Queensland has just been handed down, and we have … absolute and complete victory,” he proclaimed outside the court. “I am free, I am no longer suspended. I can prescribe Ivermectin, and most importantly – and this is what AHPRA is most afraid of – I can criticize the vaccines freely … as a medical practitioner of this country.”

Bay went on: “The vaccines are bad, the vaccines are no good, and people should be afforded the right to informed consent to choose these so-called vaccines. Doctors like me will be speaking out because we have nothing to fear.”

Bay added that the judge ruled not only to reinstate his registration, but also set aside the investigation into him, deeming it invalid. He also forced AHPRA to pay the legal costs. “Everything is victorious for myself, and I praise God,” he said.

The Australian Health Practitioner Regulation Agency (AHPRA), which partners the Medical Board of Australia, is a body kept at arm’s length from the government to prevent legal and political accountability. It was able to decide which doctors could be deregistered for allegedly not following the government line. If asked questions about its decisions AHPRA would reply that it was not a Commonwealth agency so there was no obligation to respond.

The national board of AHPRA is composed of two social workers, one accountant, one physiotherapist, one mathematician and three lawyers. Even the Australian Medical Association, which also aggressively threatened dissenting doctors during COVID, has objected to its role. Vice-president Dr Chris Moy described the powers given to AHPRA as being “in the realms of incoherent zealotry”.

This was the apparatus that Bay took on, and his victory is a significant step towards allowing medical practitioners to voice their concerns about Covid and the vaccines. Until now, most doctors, at least those still in a job, have had to keep any differing views to themselves. As Bay suggests, that meant they abrogated their duty to ensure patients gave informed consent.

Justice Bradley said the AHPRA board’s regulatory role did not “include protection of government and regulatory agencies from political criticism.” To that extent the decision seems to allow freedom of speech for medical practitioners. But AHPRA still has the power to deregister doctors without any accountability. And if there is one lesson from Covid it is that bureaucrats in the Executive branch have little respect for legal or ethical principles.

It is to be hoped that Australian medicos who felt forced into silence now begin to speak out about the vaccines, the mandating of which has coincided with a dramatic rise in all-cause mortality in heavily vaccinated countries around the world, including Australia. This may prove psychologically difficult, though, because those doctors would then have to explain why they have changed their position, a discussion they will no doubt prefer to avoid.

The Bay decision has implications for the way the three arms of government: the legislature, the executive and the judiciary, function in Australia. There are supposed to be checks and balances, but the COVID crisis revealed that, when put under stress, the separation of powers does not work well, or at all.

During the crisis the legislature routinely passed off its responsibilities to the executive branch, which removed any voter influence because bureaucrats are not elected. The former premier of Victoria, Daniel Andrews, went a step further by illegitimately giving himself and the Health Minister positions in the executive branch, when all they were entitled to was roles in the legislature as members of the party in power. This appalling move resulted in the biggest political protests ever seen in Melbourne, yet the legislation passed anyway.

The legislature’s abrogation of responsibility left the judiciary as the only branch of government able to address the abuse of Australia’s foundational political institutions. To date, the judges have disappointed. But the Bay decision may be a sign of better things to come.

READ: Just 24% of Americans plan to receive the newest COVID shot: poll

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