CCF files materials in appeal of decision that found use of Emergencies Act against truckers unlawful In case you missed it, the Canadian Constitution Foundation filed its materials recently in the appeal of the Federal Court decision that declared that the Trudeau government’s unprecedented use of the Emergencies Act in February 2022 was unlawful. In a decision released on January 23, 2024, Justice Mosley sided with the Canadian Constitution Foundation and other public interest litigants when he found that the Trudeau government’s use of the Emergencies Act was illegal and unconstitutional. It remains just as important now as it did in 2022 to uphold this victory at every level of court the government wants to fight us in. A strong precedent needs to be upheld for when it is and isn’t appropriate to invoke the Act due to how much power this extraordinary law gives governments to sidestep rights and important democratic checks and balances. THANK YOU again to all those who donated in support of this next stage of this case. Your support means this case continues with strong backing from Canadians. We raised over $65,000 on top of the $40,000 matching offer provided by a generous CCF donor. We expect the government to do everything in their power to stop us, and that may include tactics to increase costs and to delay the case, so this amazing support will directly ensure we win again at this higher level of court. Thank you so much. You can find our filed materials for this appeal here, and read our full press release here.
UPDATE! The Emergencies Act Appeal is heading to court!
CCF Litigation Director Christine Van Geyn also released a new YouTube video covering the upcoming appeal described above
TORONTO: The Canadian Constitution Foundation (CCF) is disappointed in the result in the judicial review of a case between public intellectual Dr Jordan Peterson and the College of Psychologists of Ontario. The dispute is over professional penalties, in the form of mandatory training, imposed on Dr Peterson by the College. This order for training was a result of public statements Dr Peterson had made on social media. The comments did not relate to the practice of psychology. The complaints were made by members of the public, not by any individuals who Dr Peterson had ever treated as a patient.
The CCF was an intervener in the judicial review, arguing that professionals have private lives and regulators may not discipline for off-duty conduct that lacks a clear nexus to the profession. Where off-duty conduct engages a Charter right, like freedom of expression, regulators have a heightened duty to ensure they have given full effect to the Charter protection.
“We are disappointed in this result, which we think could have a chilling effect on people in other regulated professions, like doctors, lawyers, teachers and accountants,” said CCF Litigation Director Christine Van Geyn. “Professionals should not have to soft pedal their speech for fear that activists will weaponize regulatory bodies so that unpopular speech is penalized, even when there is no connection between that speech and the profession.”
The Divisional Court did not accept Dr Peterson’s argument that his comments were “off duty” and outside his role as a psychologist. Writing for the court, Justice Schabas found that Dr Peterson “cannot speak as a member of a regulated profession without taking responsibility for the risk of harm that flows from him speaking in that trusted capacity.”
“We hope that Dr Peterson will appeal this result, which will have long lasting impacts beyond his case. The right to freedom of expression must be given more weight than the court gave it here, and the mere assertion of risk of harm is not enough. While controversial and inflammatory, there is no suggestion that any of the people Dr Peterson made comments about were harmed in any way, and indeed, they were not the source of the complaints. Complaints were made by members of the public who simply did not like what Dr Peterson said, or worse, how he said it. This is not a sufficient basis for action by the regulator when weighed against Dr Peterson’s constitutional right to freedom of expression,” said Van Geyn.
The CCF is represented in this case by George Avraam, Ahmed Shafey and Juliette Mestre of Baker McKenzie LLP. The CCF is grateful for their hard work and diligence on this case. If Dr Peterson appeals, the CCF will seek leave to intervene.
Trudeau Did Not Have Authority to Invoke the Emergencies Act – Canadian Constitutional Foundation (CCF)’s Closing Argument http://cafe.nfshost.com/?p=8316
Trudeau Did Not Have Authority to Invoke the Emergencies Act – CCF Closing Argument
I want to give you an important update about the Emergencies Act inquiry and some information about how you can personally contribute to the inquiry and hold the government to account.
The use of the Emergencies Act was illegal, and the Canadian Constitution Foundation is fighting it in court. We are also participating in an independent inquiry – the Rouleau Commission – that is looking into the government’s use of this law.
The Rouleau Commission is now accepting comments from the public – that means YOU can send the inquiry a public comment about your experience and reaction with the 2022 Freedom Convoy and the government’s illegal and unconstitutional use of the Emergencies Act.
Your comment may be quoted in the hearings, or in the Commission’s final report. It is imperative that the Commission hear from members of the public and understand the full impact on citizens of the federal government’s illegal and unconstitutional use of the Emergencies Act.
This is an important way for your voice to matter. There are many untold stories related to the Freedom Convoy. Much of the reporting of the protests was disconnected to the experience of participants and observers who were on the ground at these protests in early 2022. These public comments are now an opportunity for those stories to be told as a part of the Inquiry.
Your comment can be submitted by email to perspectives@poec-cedu.gc.ca. It can also be submitted by mail to: Public Order Emergency Commission c/o Main Floor Security Desk 90 Sparks Street Ottawa, ON K1A 0A3
Before you send in a public comment, I want to give you style suggestions, the background facts you need to know, some key messages and questions you may want to consider answering, and of course, the technical details of how and when to send in your submission. I can’t wait to tell you all about it. I want to start by saying this inquiry is NOT the government. It is an independent and non-partisan commission chaired by a very respected court of appeal judge and staffed by experienced lawyers. This inquiry was not called out of the kindness of the Prime Minister’s heart – it is required by law. I think if it was not required by law, it almost certainly would not be taking place. So my first piece of style advice is to remember that your comments are NOT being sent to the government. They are NOT being sent to the prime minister, or to any politician. It is being sent to a judge.
So don’t use bad language. Don’t use partisan language. It won’t help. In fact, it will only undermine the credibility of your message. I want your submissions to matter. It’s too easy to dismiss a public comment that is full of angry and profane language, or that comes across as a partisan attack.
I get that a lot of you are angry – I’m angry too. But let’s channel our anger into something useful by sending in public comments that use our words to communicate the damage that the government has done by illegally using the Emergencies Act.
Remember that your submission may be referred to or quoted by the Commission either in the report or in the public hearings. Use language you would be proud to have attributed to you, even though no identifying information will be used without your express permission.
My second piece of style advice is to start by addressing your letter “To The Public Order Emergency Commission”. Then begin your submission with your main message. Your main message could be an answer to a question. I have a list of questions you might consider answering listed in the description below. Or instead of answering a question, your main message could be your experience as a participant in the protests or an observer of the protests.
You should keep your submission between 1 and 2 pages. If your submission is really long, it may not be read as carefully. You should focus your letter on the most important things you want the commission to know. You can also include pictures, photographs and other supporting documents, if you think that will help.
Submissions can be made anonymously. If you want to submit anonymously, it makes sense to explain why you are making that choice. For example, some professionals who participated in the protests faced consequences from their employers. There was a hack of the information about donors to the freedom convoy, and their information, including names and addresses, posted online. I do understand why someone may want to make an anonymous submission, but it is a good idea to explain why you made that choice so the Commission understands too. If you are submitting anonymously, please note your country of residence. We all remember how some media outlets accused the Freedom Convoy of being “foreign funded” – something that turned out not to be true. So make sure you say where you live to prevent those kinds of false allegations about the people sending in public comments.
Lastly, you may submit by handwritten letter by mailing to the address I’ve linked to in the description below. Just please ensure your handwriting is legible.
That’s my style advice. But I also have advice to give you on the substance of the submissions. To make your public comment more impactful, focus on a main message. Your main message could be your experience as a participant in the protests or an observer of the protests.
Or you could answer one, or more of these questions: Did the Emergencies Act make you afraid to attend other protests in the future? Including protests on topics unrelated to the Freedom Convoy? Were you afraid to donate to any charities unrelated to the Freedom Convoy after the government invoked the Emergencies Act? Were you concerned that your financial information could be shared with the government if you donated to other charities?
Were you personally involved in the Freedom Convoy protests, and if so, what was your experience like? How was your experience impacted by the use of the Emergencies Act? How do you feel about the protests and about the use of the Emergencies Act. If you were not involved in the protests, what were your views as an observer or person who was affected by the protests? What were your views of the police and government response? How did the police and government response make you feel? Are there any changes you would recommend in terms of the Emergencies Act to ensure it is not abused again in the future?
What is your view on whether the strict threshold set out in the Emergencies Act was met? Has the government provided a sufficient explanation about why existing law enforcement tools were insufficient? It is also important to remember some important facts about the Emergencies Act and its invocation when sending in a public comment. First, emergency powers have a dark and troubled history in Canada. The Emergencies Act was enacted to replace the War Measures Act, which was abused by previous federal governments. In response to the abuse of the War Measures Act, the Emergencies Act was carefully crafted to set out a demanding set of legally binding conditions that must be satisfied before it can be invoked. Those conditions were not met in this case.
The Emergencies Act is exceptional. It gives the federal cabinet authority to create new criminal offences and police powers, without recourse to Parliament, without advance notice, and without public debate. The law poses the risk of executive overreach which could have profound effects on Canadian democracy. Because the Emergencies Act vests enormous power in the federal cabinet, it should be interpreted strictly.
The Emergencies Act can only be invoked when there are no other legal tools available to deal with an ongoing situation that is urgent, temporary and national in scope. The February 2022 Freedom Convoy protests were cleared using ordinary police powers. In the view of many civil liberties organizations, including the Canadian Constitution Foundation, the invocation of the Emergencies Act was not absolutely necessary, as the Act requires.
After invoking the Emergencies Act, the federal government brought in Economic Measures and Emergency Measures. The Economic Measures enacted under the Emergencies Act required banks to disclose private banking information to police. This amounted to a warrantless and unreasonable search of private banking information. The Emergency Measures prohibited a very broad range of conduct, including generally acceptable and legal protest behaviour, breach of which was punishable by fines and imprisonment.
The federal government has not provided an explanation for its invocation of the Emergencies Act beyond a simple declaratory statement that a public order emergency existed. The federal government is fighting the disclosure of documents that provide a record of why this law was invoked. The federal government is not acting transparently, or explaining why this law was necessary. If the federal government refuses to provide an explanation, it is reasonable to draw the conclusion that no good explanation exists.
The Rouleau Commission hearings begin on September 19, so it is best to send a public comment before that date, although they will be accepted up until October 31.
If you want additional information and style guidance on how to send in a public comment, visit theccf.ca/emergencies-act-inquiry/ Good luck. And I hope you take part in this inquiry. Yours truly, Christine Van Geyn
PS – We are fighting this battle against the illegal use of the Emergencies Act as part of the inquiry, but also in court. We’ve hired one of the best lawyers in the country, but that means the fight is expensive. Please consider making a tax-deductible gift to help us pay our legal fees at theccf.ca/donate/
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Canadian Constitution Foundation in the Federal Court today
TORONTO: The Canadian Constitution Foundation is in the Federal Court today seeking the disclosure of information which goes to the heart of the government’s decision to invoke the Emergencies Act on February, 14, 2022.
The CCF will seek an order for the Attorney General to deliver unredacted documents, including minutes of the Incident Response Group and Cabinet meetings leading up to the declaration of the Emergencies Act.
The government invoked cabinet confidence, and subsequently, national security privilege over many documents relevant to a judge’s determination of whether the government was justified in declaring a public order emergency.
“The government’s failure to disclose wide swaths of evidence that go to the question of whether it was justified in invoking the Emergencies Act is an attempt to evade meaningful judicial review. Allowing these documents to remain secret would undermine the integrity of the proceedings in this historic matter if a litigant is pre-empted from arguing in court that the government acted unconstitutionally”, said Christine Van Geyn, the CCF’s Litigation Director. Members of the public may request a link for the hearing here: https://www.fct-cf.gc.ca/en/court-files-and-decisions/hearing-lists
The charter that defends rights, but also tells government how to quash them
Not everyone is inclined to cheer the charter as a bulwark of liberty. ‘We are less free today than 40 years ago,”’ said John Carpay, president of the JCCF Author of the article: Tristin Hopper Publishing date: Apr 15, 2022 • April 15, 2022 • 7 minute read • 91 Comments
The notwithstanding clause is how provincial governments can consistently maintain legislation, such as Quebec’s Bill 21, that are a pretty obvious curb on fundamental freedoms. Photo by Darren Makowichuk/Postmedia/File
The decision was a surprise to Canadians, where any number of similar challenges had failed.
Time after time during the COVID-19 pandemic, Canadian governments imposed extraordinary public health measures that seemed to be naked infringements on Canadians’ charter rights. Mandated church closures that violated protections on “freedom of religion.” Bans on gatherings that curbed “freedom of association.” Border and travel strictures that undermined charter guarantees on mobility rights.
But the courts didn’t care. Whenever a pandemic case hit the docket, courts “erred too far on the side of deferring to government,” Joanna Baron, the executive director of the Canadian Constitution Foundation, told the National Post.
Sunday marks the 40th anniversary of Canada repatriating its constitution, a process that included passage of the Charter of Rights and Freedoms. The charter has often been praised as one of Canada’s leading modern accomplishments and its “gift to the world.” But it’s also one of the world’s only constitutions that explicitly gives the state a roadmap on how to quash the very “fundamental freedoms” it cites. It’s why, four decades in, not everyone is inclined to cheer it as a bulwark of liberty.
“I cannot think of any freedom … that the charter has brought to us,” said John Carpay, president of the Justice Centre for Constitutional Freedoms, a group that has been particularly active in challenging pandemic mandates and defending the organizers of Freedom Convoy. “We are less free today than 40 years ago,” he said.
If governments are looking to do an end-run around charter-enumerated rights, there are two primary sections of the document they turn to. Section 1, which is literally the first line of text in the charter, explicitly states that rights and freedoms are protected in Canada only to “reasonable limits.”
According to an official government of Canada guide to the charter, the purpose of this section is to remind Canadians that “rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.”
The notwithstanding clause allows provincial governments to knowingly pass legislation that treads on a fundamental freedom.
If such a legislative override had existed in the U.S. Constitution, many of the most iconic Supreme Court decisions of the civil rights movement might not have mattered. Brown vs. Board of Education — the 1954 decision that struck down school segregation — could simply have been ignored by states invoking the notwithstanding clause.
In Quebec, it’s how provincial governments can consistently maintain legislation that are a pretty obvious curb on fundamental freedoms. Bill 21, a provincial law passed in 2019, bars government employment to any Quebecer who wears religious garb such as turbans or hijabs. Any charter challenge against Bill 21 would likely be a slam dunk on the “freedom of religion” clause, but Quebec would simply be able to soldier on with the law by invoking the notwithstanding clause.
The Canadian Constitution Foundation has questioned the constitutionality of orders requiring face coverings in certain Ontario municipalities.
In a letter to Dr. Nicola Mercer,
medical officer of health at the Wellington-Dufferin-Guelph public
health region, the CCF said that a June 12 order imposing the use of
mandatory face coverings in commercial establishments breached s. 7, s.
15 and s. 8 of the Canadian Charter of Rights and Freedoms.
The order prima facie violates the right to liberty of the
person under s. 7 because it forces people to cover their faces and
interferes with their bodily integrity, the CCF said. It also infringes
the right to non-discrimination on the basis of disability under s. 15
since it imposes a disproportionate burden on persons with disabilities,
including breathing problems like asthma and emphysema or trauma-based
phobia of breathing obstructions.
“[I]f a person has PTSD related to having their breathing obstructed,
they should not need to discuss this with strangers in order to buy
toilet paper or fill up their gas tank,” said Christine Van Geyn,
litigation director at the CCF.
The order does include an exemption which allows such individuals to
forgo masks, but the CCF argues that requiring a person to disclose
private health information in order to claim an exemption infringes
privacy rights under s. 8, particularly the right to informational
privacy. Forcing such a disclosure may cause a person with trauma-based
phobia to re-experience the traumatic experience and suffer reputational
harm.
The CCF said that the order should be repealed or at least amended
due to these issues. Tested against the requirements found in R. v. Oakes,
the limitation imposed by the order is not rationally connected to the
objective, is not minimally impairing and is not proportionate, the CCF
said.
To support its argument of a lack of rational connection to the
objective, the CCF cited the relatively low local rate of community
transmission in the area and questioned why the order applies to retail
commercial establishments but not to other places also subject to public
gatherings, such as churches or community centres. The CCF said that
the order should be amended to require masks only when physical
distancing of six feet is impossible.
The order is not minimally impairing because it fails to consider its
impact on the privacy and equality rights of persons with disabilities,
who risk reliving trauma and experiencing reputational harm, the CCF
said. Therefore, the CCF asks for an amendment to the effect that an
employee of a commercial establishment should accept a claim for a
medical exemption at face value, without requiring a disclosure of
private health information.
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The CCF then said that the $5,000 fine imposed on commercial
establishments who do not enforce the order is disproportionate, given
that much lower fines were implemented during the peak of the outbreak.
The order should be amended to set a $500 fine instead, the CCF said.
“It is our strong preference not to commence litigation, when simple
amendments to the Order would achieve the goal of protecting both the
health and the rights of citizens,” wrote Van Geyn.
The CCF intends to send letters to other Ontario communities with
similar orders either implemented or contemplated, such as York Region,
Kingston and Waterloo.
