Canadian Frontline Nurses v. Canada (Attorney General)

Canadian Frontline Nurses v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-01-29
Neutral citation
2024 FC 42
File numbers
T-306-22, T-316-22, T-347-22, T-382-22
Notes
A correction was made on January 29th, 2024.
Decision Content
Date: 20240129
Dockets: T-306-22
T-316-22
T-347-22
T-382-22
Citation: 2024 FC 42
Ottawa, Ontario, January 29, 2024
PRESENT: The Honourable Mr. Justice Mosley
Docket: T-306-22
BETWEEN:
CANADIAN FRONTLINE NURSES and KRISTEN NAGLE
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-316-22
AND BETWEEN:
CANADIAN CIVIL LIBERTIES ASSOCIATION
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-347-22
AND BETWEEN:
CANADIAN CONSTITUTION FOUNDATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
ATTORNEY GENERAL OF ALBERTA
Intervener
Docket: T-382-22
AND BETWEEN:
JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU
Applicants
and
GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
AMENDED REASONS FOR JUDGMENT
TABLE OF CONTENTS
I. Introduction 5
II. Overview 5
III. The Parties 7
A. The Applicants 7
(1) Kristen Nagle and Canadian Frontline Nurses 7
(2) The Jost Applicants 9
(3) Canadian Civil Liberties Association 10
(4) Canadian Constitution Foundation 10
B. The Respondent (moving party on the Motions to Strike) 11
C. The Intervener 12
IV. The Context 12
(1) Public Health Orders 13
(2) Protests in Ottawa and border blockades 13
(a) Ottawa 13
(b) Border blockades 17
(3) Invocation of the Emergencies Act 19
V. Decision under review 22
A. The Proclamation 22
B. Reasons for the decision 24
C. Procedural history 25
VI. Evidence 29
(1) Nagle/CFN 29
(2) CCLA 30
(3) CCF 31
(4) Jost Applicants 31
(5) Respondent 32
VII. Legal Framework 34
VIII. Issues 35
A. Preliminary issues 35
B. Substantive issues 36
IX. Argument and Analysis 41
A. Preliminary issues 41
(1) Test for a motion to strike 41
(2) Test for mootness 42
(3) The Respondent’s position 43
(4) Positions of the Applicants 44
(a) Analysis 45
(i) Presence of an adversarial context 45
(ii) Judicial Economy 48
(iii) Court’s sensitivity to its role relative to that of the legislative branch of government. 51
(5) Conclusion on mootness 53
(6) Test for standing 54
(a) Respondent’s position 55
(b) Applicants’ positions 57
(i) Nagle/CFN 57
(ii) Jost and Ristau 58
(iii) CCLA and CCF 59
(c) Conclusion on standing 59
B. Substantive issues 65
(1) Standard of Review 65
(2) Was the decision to issue the Proclamation unreasonable and ultra vires the Act? 72
(a) The Court draws no adverse inference from the privilege claims. 73
(b) Was there a national emergency? 74
(i) Argument 75
(ii) Analysis and conclusion on whether there was a national emergency. 81
(c) Was the “threats to the security of Canada” threshold met? 87
(d) Was there evidence of threats or use of acts of serious violence? 90
(i) Argument 90
(ii) Analysis and conclusion on whether the threshold was met. 94
C. Did the powers created by the Economic Order and Regulations violate sections 2(b)(c)(d), 7 or 8 of the Charter, and, if so, can they be saved under section 1? 101
(a) Section 2 102
(i) Freedom of thought, belief, opinion and expression. 103
(ii) Freedom of peaceful assembly. 105
(iii) Freedom of Association 106
(b) Section 7 107
(c) Section 8 109
(d) Section 1 115
(i) Conclusion on section 1 justification 118
D. Did the Regulations and Economic Order violate the Canadian Bill of Rights? 120
X. Conclusion 123
(1) Remedies 125
(2) Costs 125
ANNEX A / ANNEXE A 127
ANNEX B 155
I. Introduction [1] These are reasons for judgment in four applications for judicial review under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 [Federal Courts Act], of the decision by the Governor in Council (GIC) to declare a Public Order Emergency (POE) and to approve additional measures in order to end disruptive protests in Ottawa and other locations in Canada.
[2] As the outcome of the four applications varies in certain respects, separate judgments, will be issued for each application. The following reasons apply to the common elements and explain the different outcomes.
II. Overview
[3] The Applicants in the four applications before the Court challenge Order in Council P.C. 2022-106, the Proclamation Declaring a Public Order Emergency, SOR/2022-20 [the Proclamation] issued pursuant to s 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp) on February 14, 2022 [the “Emergencies Act”, the “EA” or the “Act”]. Also under review are Order in Council P.C. 2022-107, the Emergency Measures Regulations, SOR/2022-21 [the “Regulations”] and Order in Council P.C. 2022-108, the Emergency Economic Measures Order, SOR/2022-22, [the “Economic Order”] made on February 15, 2022 pursuant to s 19(1) of the Act.
[4] The Attorney General of Alberta responded to a notice of constitutional question in one of the applications and also sought and obtained leave to intervene to make submissions on several non-constitutional questions.
[5] The Attorney General of Canada brought motions to strike the applications on the grounds that they were moot and that most of the Applicants lacked standing.
[6] As these reasons will explain, I have determined that the Applicants, Kristen Nagle, Canadian Frontline Nurses, Jeremiah Jost and Harold Ristau, lack standing to challenge the Proclamation, the Regulations and the Economic Order. Their applications will be dismissed for that reason. I accept that Edward Cornell and Vincent Gircys have direct standing to challenge the Proclamation, Regulations and Economic Order as they were directly affected by them. I grant the Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) public interest standing. I have concluded that the applications of those with standing should be heard notwithstanding that the applications are moot as a result of the revocation of the Proclamation and termination of the related instruments.
[7] On the substantive issues, I have concluded that the applications of Edward Cornell and Vincent Gircys, the CCLA and the CCF must be granted in part for reasons discussed below. In brief, I find that the reasons provided for the decision to declare a public order emergency do not satisfy the requirements of the Emergencies Act and that certain of the temporary measures adopted to deal with the protests infringed provisions of the Canadian Charter of Rights and Freedoms – Part I of the Constitution Act, 1982 adopted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) [Charter] and were not justified under section 1 of the Charter.
[8] I find that the temporary measures were not incompatible with the Canadian Bill of Rights, SC 1960, c 44 [Canadian Bill of Rights] as had been argued by Messrs. Jost, Ristau, Cornell and Gircys, collectively the Jost Applicants.
III. The Parties
A. The Applicants
[9] The first two of the four Applications for Judicial Review were filed in the Federal Court by Ms. Kristen Nagle and Canadian Frontline Nurses [CFN] and by the Canadian Civil Liberties Association [CCLA], on February 17 and 18, 2022 respectively. The other two Applications were filed on February 22 and 23, 2022 by the Canadian Constitutional Foundation [CCF] and by the Jost Applicants.
(1) Kristen Nagle and Canadian Frontline Nurses
[10] Kristen Nagle is a Canadian citizen and Ontario resident. Ms. Nagle is a former registered nurse and is a member and director of the CFN. Her registration was suspended by the Ontario College of Nurses due to complaints about her actions at other protests including at hospitals applying vaccine mandates and treating patients suffering from COVID-19 during the pandemic.
[11] The CFN is incorporated under the Canada Not-for-profit Corporations Act, SC 2009, c 23. CFN’s materials describe it as a “proud advocate of medical freedom” and that its missions are “to unite nurses across Canada, educate the public and ensure that Canadian healthcare reflects the highest ethical standards.” Arguments made on behalf of the CFN in these proceedings are the same as those made by Ms. Nagle. It is clear that she is the directing mind and will of the organization.
[12] Ms. Nagle and, through her, CFN, claim to be “opposed to unreasonable COVID-19 related mandates and restrictions that have been implemented by various levels of Canadian governments” during the pandemic.
[13] In their application, Nagle and CFN assert direct standing based on their participation in the “Freedom Convoy 2022”. It is unclear from the evidence how CFN participated other than through the person of Ms. Nagle. There is no evidence that any of the assertions made on behalf of the CFN in these proceedings result from resolutions of the membership or board of the organization or are anything other than expressions of Ms. Nagle’s personal views.
[14] Ms. Nagle arrived in Ottawa on January 28, 2022 and took up residence in a hotel near the protest sites with her husband and children. Ms. Nagle claims that she provided material support to other participants during the protests, such as the distribution of funds donated to the CFN and by providing access to her hotel room for showers. She claims that she was described as a major participant in the protest by a Member of Parliament but there is no supporting evidence of this. The CFN logo does appear among others on “Freedom Convoy 2022” promotional materials.
[15] Neither Ms. Nagle nor the CFN were identified by the Royal Canadian Mounted Police (RCMP) to financial service providers as an individual or entity to whom the Regulations and the Economic Order applied. Their bank accounts and other resources were not frozen. However, Ms. Nagle averred that donations to the CFN diminished as a result of the Proclamation and imposition of the Regulations and the Economic Order. As a result, she and her family chose to leave Ottawa.
(2) The Jost Applicants
[16] The four Jost Applicants are private Canadian citizens who assert direct standing based on their participation in the Ottawa protest.
[17] Jeremiah Jost participated in the protests around Parliament Hill from January 29, 2022. He asserts he also financially supported other protest participants in Ottawa.
[18] Edward Cornell is a Canadian military veteran who also participated in the Ottawa protests. His bank account and credit cards were frozen following the Proclamation and making of the Economic Order.
[19] Vincent Gircys is a retired police officer. He participated in the Ottawa protest and his bank account and credit cards were also frozen following the invocation of the Act.
[20] Harold Ristau is a pastor and Canadian military veteran who briefly attended the protests in Ottawa and led participants in prayer, issuing a benediction and praying at the War Memorial. He claims that following his return home he experienced discrimination in his work place and other ill effects due to his participation in the protests, which limited his ability to enjoy his freedom of religion.
(3) Canadian Civil Liberties Association
[21] Founded in 1974, CCLA describes itself as an independent, non-profit, non-governmental organization dedicated to defending and promoting fundamental human rights and civil liberties. The CCLA brought its application on the basis of public interest standing.
[22] CCLA asserts it has been holding governments accountable since its inception by ensuring human rights and freedoms are fostered and observed and that the rule of law is upheld. CCLA claims to advocate on behalf of all people in Canada to ensure the maintenance of the critical balance between civil liberties and competing public and private interests. CCLA has been granted leave to intervene in cases before courts at many levels and asserts that it has contributed to the development of jurisprudence in respect of civil liberties and the application of the Charter.
(4) Canadian Constitution Foundation
[23] Founded in 2002, the CCF describes itself as an independent, national and non-partisan charity that seeks to protect constitutional freedoms through education, communication and litigation. It also brought its application on the basis of public interest standing.
[24] The CCF has appeared before all levels of courts in Canada and submits that it has contributed to the development of constitutional law jurisprudence. It has been granted intervener status by the Supreme Court of Canada in 13 cases.
[25] The Respondent did not dispute that the CCLA and the CCF had a valid public interest in these proceedings but argued that their participation was not required as at least two of the Jost Applicants had direct standing.
B. The Respondent (moving party on the Motions to Strike)
[26] The Attorney General of Canada is named as the sole Respondent in three of the four applications. In the fourth application, in Docket: T-382-22, the Jost Applicants named the Governor in Council, Her Majesty in Right of Canada and the Minister of Public Safety and Emergency Preparedness in addition to the Attorney General of Canada.
[27] The Crown is not a federal board, commission or other tribunal for the purposes of sections 18 and 18.1 of the Federal Courts Act and cannot, therefore, be a respondent in these proceedings. Decisions by the Governor in Council and the Minister in the execution of their public duties are subject to judicial review. They are represented in these proceedings by the Attorney General of Canada as Respondent.
C. The Intervener
[28] On March 14, 2022, the Jost Applicants filed and served an Amended Notice of Constitutional Question under s 57 of the Federal Courts Act on each of the provincial Attorneys General. Only the Attorney General of Alberta responded to the Notice. The Attorney General of Alberta also sought and was granted leave on May 5th, 2022 to intervene in the CCLA and CCF files to make submissions on several non-constitutional questions.
IV. The Context
[29] This portion of these reasons will summarize the background to the applications and the making of the Proclamation, Regulations and Economic Order. I do not propose to revisit the detailed history of events, which were thoroughly canvassed in the five volume report of the Public Order Emergency Commission (POEC), released on February 17, 2023. However, I consider it necessary to situate these reasons in the context of those events, as I understand them.
[30] The facts recited below are drawn from the records of the parties filed in each application including the supplementary records based on later disclosures. There has been less dispute in these proceedings about what happened than with how the events should be characterized in applying the law. Where there has been any controversy about the facts, I have scrutinized the relevant evidence with care to determine “whether it is more likely than not that an alleged event occurred”: F.H. v McDougall, 2008 SCC 53 at para 49.
(1) Public Health Orders
[31] On November 19, 2021, the Public Health Agency of Canada announced that, as of January 15, 2022, certain groups of foreign nationals who were, up to that point, exempt from vaccine requirements for entry to Canada would now be required to be fully vaccinated, including essential service providers such as truck drivers. Similar measures were put in place by the United States government at the border with Canada.
[32] On January 13, 2022, the Minister of Health clarified that an unvaccinated Canadian truck driver could not be denied entry into Canada, but would need to meet requirements for pre-entry, arrival and Day 8 testing as well as quarantine requirements.
(2) Protests in Ottawa and border blockades
[33] As a result of those travel restrictions, a group of individuals prepared to drive across Canada to protest in Ottawa under the name “Freedom Convoy 2022”. On January 22, 2022, the Convoy departed from Prince Rupert, British Columbia, on its way to a planned demonstration in Ottawa scheduled for January 29, 2022. The Convoy’s route to Ottawa was widely publicized and other vehicles and individuals joined along the way.
(a) Ottawa
[34] On January 28, 2022, the Convoy arrived in Ottawa. At this point, it consisted of hundreds of vehicles of various types including tractor-trailer units and thousands of individuals who intended to protest Canada’s public health response to the COVID-19 pandemic and the new vaccination requirements for cross-border truckers. The protestors and vehicles occupied much of the downtown core of Ottawa including streets in the vicinity of the Parliamentary precinct, the Supreme Court of Canada and the Federal Courts. Among other things, the effect was to block vehicular traffic and pedestrian access to offices, businesses, churches and residences in the affected area.
[35] Over the next few days, the protest became a blockade of downtown government, business and residential districts accompanied by incessant noise from truck horns, train type whistles, late night street parties, fireworks and constant megaphone amplified hollers of “freedom”. Fumes from the exhausts of diesel and gasoline engines permeated the air and seeped into neighbouring premises. Containers of fuel were being brought in constantly to keep the vehicles running and to provide heat. There were reported incidents of harassment, minor assaults and intimidation. This created intolerable conditions for many residents and workers in the district.
[36] Between January 30 and February 2, 2022, the demonstrators began to erect structures and organize for a prolonged occupation of the core of the national capital. The Ottawa Police Service (OPS) appeared to be unable to cope with the situation. The OPS Chief declared “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”.
[37] On February 3, 2022, the Mayor of Ottawa submitted a request for additional resources to the Federal and Provincial governments to deal with the protest. The same day, Convoy organizers held a press conference where they stated that they would remain in the city until all COVID-19 mandates were revoked. On February 6, 2022, the Mayor declared a state of emergency.
[38] On February 7, 2022, the Provincial Operations Intelligence Bureau, a branch of the Ontario Provincial Police (OPP), identified the Convoy as a “threat to national security”, and the OPS requested an additional 1,800 police officers from other agencies. The same day, a ten-day interim injunction was granted by Justice McLean of the Ontario Superior Court of Justice to “silence the honking horns” and to prevent other by-law breaches by truckers parked in the streets of downtown Ottawa.
[39] Between February 8 and February 10, 2022, the Convoy numbered approximately 418 vehicles and additional cars and trucks were arriving with protestors. Children were estimated to be present in 25 percent of the vehicles. A counter-protest on February 13, 2022 saw hundreds of residents on suburban streets blocking access to vehicles headed to downtown Ottawa. Convoy participants, or their supporters, allegedly engaged in a concerted effort to flood Ottawa’s emergency services with calls designed to overwhelm the services’ capacity to respond. Donations to fund the protest were received by a crowdfunding site, GiveSendGo. Information subsequently released indicated that 55.7 percent of the funds received, totalling $3.6 million USD were made by U.S. based donors.
[40] On February 10, 2022, the Prime Minister convened the Incident Response Group (IRG), an emergency committee and coordination body of Cabinet and senior public servants whose role is to advise the Prime Minister in the event of a national crisis. The Prime Minister and the President of the United States discussed the situation on February 11, 2022. Further meetings of the IRG took place on February 12 and 13, 2022. The Government of Ontario declared a state of emergency and, on February 12, 2022, enacted a regulation to protect critical infrastructure.
[41] Information considered by the IRG, according to its minutes, included that extremist elements were taking part in the protest. These included members of an organization known as “Diagolon” which reportedly proposed to establish a “diagonal” country from Alaska to Florida under the slogan “gun or rope”. The founder, Jeremy MacKenzie, was arrested in January 2022, before coming to protest in Ottawa, after police found firearms, prohibited magazines, ammunition and body armour at his home. Moreover, one of MacKenzie’s associates, Derek Harrison, had made a video in which he reportedly expressed his desire to turn the Freedom Convoy protest into “our own January 6th” event, alluding to the storming of the US Capitol. One of the Applicants, Ms. Nagle, was in contact with MacKenzie when she was in Ottawa.
[42] The purpose of referring to this information is not to indicate whether the concerns about Diagolon or the charges against MacKenzie were well-founded. But it is information that was before Cabinet when the decision to invoke the EA was made.
[43] Visible symbols of hate were seen to be held or worn by protestors in media photographs of the occupation. The Applicants, Mr. Jost and Ms. Nagle acknowledged under cross-examination having seen demonstrators wearing yellow Star of David emblems featuring the words “non vaxx” in comparison to the symbols victims of the Holocaust were forced to wear. News articles reported protestors with flags featuring swastikas, and signs bearing the Nazi “SS” symbol, as well as Confederate flags.
[44] Some of those involved in organizing the protest brought with them a document purporting to be a draft memorandum of understanding between a group called “Canada Unity”, the Senate of Canada and the Governor General. The draft memorandum proposed to form a joint committee to assume government functions in return for which the convoy would cease its occupation of Ottawa. When it was pointed out that this proposition was devoid of any constitutional reality, it appears to have been ignored by others on the scene. But it illustrates an effort by some of those involved in the protest to interfere with the democratic process and undermine the government.
[45] During the events in Ottawa, smaller protests sprang up elsewhere in cities across the country but those were largely managed and resolved within less than a day or two by local law enforcement.
(b) Border blockades
[46] On January 29, 2022 a blockade began at the Sweetgrass-Coutts, Alberta, border crossing. On February 5, 2022, the Minister of Municipal Affairs of Alberta wrote to the Federal Ministers occupying the portfolios of Public Safety and Emergency Preparedness seeking federal assistance, including equipment and personnel, to move about 70 trucks and semi-tractor trailers as well as approximately 75 personal and recreational vehicles. The Alberta Minister noted that the RCMP had exhausted all local and regional options to alleviate the disruption. By February 11, 2022, between 200 and 250 additional Convoy vehicles had gathered at Milk River, 18 km from Coutts, where the police had set up a checkpoint to limit access to Coutts. Only about 40 vehicles remained at Coutts itself.
[47] On February 6, 2022, a second blockade began at the Ambassador Bridge in Windsor, Ontario, the country’s busiest border crossing. On February 11, 2022, the Superior Court of Justice granted an injunction aimed at ending this blockade. On February 13, 2022, the police removed participants and approximately 44 charges were laid. The next day, traffic resumed but the City of Windsor nonetheless declared a state of emergency. Over $390 million in trade with the United States was affected each day of the blockade.
[48] On February 8, 2022, a third blockade was set up on the provincial highway leading to and from the Sarnia Blue Water Bridge, Ontario; Canada’s second busiest border crossing. Access was restored on February 14, 2022.
[49] On February 10, 2022, a fourth blockade began north of Emerson, Manitoba. Up to 75 vehicles were involved in the blockade, which allowed cargo like medical supplies and livestock to pass. On February 11, 2022, the Premier of Manitoba sent a letter to the Prime Minister urging immediate and effective federal action regarding the blockade. A fifth blockade began on February 12, 2022 near the Peace Bridge port of entry at Fort Erie, Ontario, Canada’s third busiest land border crossing. On February 14, 2022, the OPP and Niagara Regional Police were able to restore the flow of traffic.
[50] Also on February 12, 2022, protesters’ vehicles broke through a RCMP barricade in South Surrey, British Columbia, heading to the Pacific Highway port of entry and forced the closure of the highway at the Canada-U.S. border. By the end of February 14, 2022, 16 people had been arrested in relation to this blockade. By the morning of February 15, 2022, the roads were clear.
[51] Early on February 14, 2022, RCMP officers executed a warrant issued under the Criminal Code RSC 1985, c C-46 [Criminal Code or Code] and raided two camper trailers and a mobile home at Coutts, arrested 11 individuals and seized a cache of weapons, including 14 firearms, a large supply of ammunition and body armour. Four individuals were charged with conspiracy to commit murder and other offences. Some of the body armour seized was marked with the Diagolon insignia.
(3) Invocation of the Emergencies Act
[52] The full Cabinet met on February 13, 2022 to discuss the situation. The question of whether to invoke the Emergencies Act was then delegated to the Prime Minister, ad referendum. In making the decision, the Prime Minister had the benefit of a memorandum from the Acting Clerk of the Privy Council recommending invocation (the Invocation Memorandum).
[53] On February 14, 2022, the Governor in Council [GIC] declared a public order emergency under the Emergencies Act, the Proclamation, to end the disruptions and blockades occurring across the country. There were an estimated 500 trucks and other vehicles remaining in downtown Ottawa at the time.
[54] On February 15, 2022, the GIC enacted the Regulations, as well as the Economic Order. The RCMP completely restored access to the Coutts border crossing that same day and reached a resolution with the protestors at the Emerson blockade.
[55] Between February 15 and February 23, 2022, the RCMP disclosed information from the OPP, OPS and its own investigations on approximately 57 named entities and individuals to financial service providers, resulting in the temporary freezing of about 257 accounts under the Economic Order.
[56] On February 16, 2022, the Public Safety Minister brought a motion before the House of Commons pursuant to section 58 of the Act to confirm the declaration of the public order emergency proclaimed on February 14, 2022. The blockade at Emerson in Manitoba was completely cleared that day.
[57] Subsection 58(1) of the Act requires that an explanation for the reasons for issuing the declaration [the “Section 58 Explanation”] and a report on any consultations with the Lieutenant Governors in Council [LGIC] of the provinces with respect to the declaration [the “Consultation Report”], shall be laid before each House of Parliament within seven sitting days after the declaration is issued. The Section 58 Explanation and the Consultation Report were tabled before each House on February 16, 2022.
[58] Following declaration of the Proclamation and making of the Regulations and Economic Order a number of protestors left the blockades in Ottawa. From February 17 to 21, 2022, the police in Ottawa arrested 196 people, of whom 110 were charged with offences, removed 115 vehicles and dismantled the barricades on the streets.
[59] The motion to confirm the Proclamation was adopted in the House of Commons on February 21, 2022. A motion to confirm the Proclamation was then tabled in the Senate and debate began in that chamber on February 22, 2022. By then the RCMP had contacted financial service providers and advised them that they no longer believed the identified individuals and entities previously disclosed were engaged in prohibited conduct or activities covered under the Regulations and Economic Order.
[60] On February 23, 2022, the declaration of a public order emergency was revoked with the issuance of the Proclamation Revoking the Declaration of a Public Order Emergency, SOR/2022-26 [the “Revoking Proclamation”]. Issuance of the Revoking Proclamation had the effect of terminating the Regulations and Economic Order under the terms of the Act. The Ontario government also lifted its state of emergency that day.
[61] Under subsection 62(1) of the Emergencies Act, a parliamentary review committee must review the “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.” Accordingly, a Special Joint Committee on the Declaration of Emergency was established by motion of the Senate and House of Commons on March 3, 2022.
[62] On April 25, 2022, Order in Council P.C. 2022-392 was issued under subsection 63(1) of the Act to cause an inquiry to be held into the circumstances that led to the declaration and the measures taken for dealing with the emergency. The Public Inquiry was to report to both Houses of Parliament by February 20, 2023.
V. Decision under review
A. The Proclamation
[63] The proclamation of the public order emergency on February 14, 2022 was an act of the Governor in Council. The final decision to invoke the Act and declare an emergency was a decision of the Prime Minister with the approval and support of Cabinet. The formal documents conveying the recommendation of Cabinet were submitted to the GIC by the Minister of Public Safety and Emergency Preparedness.
[64] The Proclamation declared that the Governor in Council believed, on reasonable grounds, that a public order emergency existed and necessitated the taking of special measures for dealing with the emergency.
[65] The Proclamation specified that the emergency was constituted of:
a)the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,
b)the adverse effects on the Canadian economy — recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) — and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,
c)the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,
d)the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and
e)the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians;
[66] The Proclamation further specified that the special temporary measures anticipated by the GIC are:
a)measures to regulate or prohibit any public assembly — other than lawful advocacy, protest or dissent — that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area, to regulate or prohibit the use of specified property, including goods to be used with respect to a blockade, and to designate and secure protected places, including critical infrastructure,
b)measures to authorize or direct any person to render essential services of a type that the person is competent to provide, including services related to removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade anywhere in Canada, to relieve the impacts of the blockades on Canada’s public and economic safety, including measures to identify those essential services and the persons competent to render them and the provision of reasonable compensation in respect of services so rendered,
c)measures to authorize or direct any person to render essential services to relieve the impacts of the blockade, including to regulate or prohibit the use of property to fund or support the blockade, to require any crowdfunding platform and payment processor to report certain transactions to the Financial Transactions and Reports Analysis Centre of Canada and to require any financial service provider to determine whether they have in their possession or control property that belongs to a person who participates in the blockade,
d)measures to authorize the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference,
e)the imposition of fines or imprisonment for contravention of any order or regulation made under section 19 of the Emergencies Act; and
f)other temporary measures authorized under section 19 of the Emergencies Act that are not yet known.
B. Reasons for the decision
[67] When an administrative decision maker is required by the legislative scheme to provide reasons for its decision, the reasons are the “primary mechanism by which [they] show that their decisions are reasonable”; their purpose is to “demonstrate ‘justification, transparency and intelligibility’”: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 81. “Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies”: Vavilov at para 86.
[68] In these proceedings, the Section 58 Explanation constitutes the reasons for the decision.
[69] In addition, further to requests for production under Rule 317 of the Federal Courts Rules SOR/98-106 [Federal Courts Rules], the annotated agendas and minutes of the several IRG and Cabinet meetings leading to the decision, with redactions, were disclosed to the Court and to the Applicants as they were made available to the POEC. Those minutes and agendas, along with the Invocation Memorandum and the Consultation Report, provide necessary context for understanding how the decision came to be made.
C. Procedural history
[70] These proceedings were under case management from the outset with a Judge and Associate Judge presiding over conferences with counsel for the parties and dealing with motions and procedural issues as they arose.
[71] A motion seeking a temporary interlocutory order to stay the Proclamation while it remained in effect was dismissed as moot when the Proclamation was revoked: Canadian Frontline Nurses v Canada (Attorney General), 2022 FC 284.
[72] Following requests for documentary production of records pertaining to the issuance of the Proclamation under Rule 317 of the Federal Courts Rules, the Respondent replied on March 15, 2022 with a letter from the Assistant Clerk of the Privy Council objecting to disclosure of records on the basis of Cabinet Confidentiality.
[73] On or about April 1, 2022, the Applicants were served with a certificate signed by the then Interim Clerk of the Privy Council respecting the application of s. 39 of the Canada Evidence Act, RSC, 1985, c C-5 [CEA] to the following documents:
1)Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council directing that a proclamation be issued pursuant to subsection 17(1) of the Emergencies Act, including the signed Ministerial recommendation, a draft Order in Council regarding a proposed proclamation, a draft proclamation, and accompanying materials;
2)The record recording the decision of the GIC concerning the Emergency Proclamation, dated February 2022;
3)Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection l9(l) of the Emergencies Act and concerning emergency measures Regulations, including the signed Ministerial recommendation, a draft Order in Council regarding proposed emergency measures Regulations, draft Regulations, and accompanying materials;
4)The record recording the decision of the GIC concerning emergency measures Regulations, dated February 2022;
5)Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection 19(1) of the Emergencies Act and concerning an emergency economic measures order, including the signed Ministerial recommendation, a draft Order in Council regarding a proposed emergency economic measures order, a draft order, and accompanying materials.
6)The record recording the decision of the GIC concerning an emergency economic measures order, dated February 2022.
[74] A motion brought by the CCF for an Order pursuant to Rule 75 of the Federal Courts Rules to extend the scope of their application was dealt with in Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1232. The Court dismissed the motion on the basis that materials pertaining to the Revoking Proclamation were not before the GIC when the decision under review was made.
[75] On July 19, 2022, the Respondent delivered redacted minutes of the meetings of the IRG on February 10, 12, and 13, 2022 and of Cabinet on February 13, 2022 to the Court and the Applicants. The Chair’s annotated and redacted agendas for the IRG meetings were delivered to the parties on July 22, 2022. The documents bear notations that the redactions were made pursuant to privilege claims under CEA sections 37, 38 and 39, and in addition, for claims of solicitor-client privilege and for lack of relevance.
[76] A second CEA section 39 certificate was issued on August 4, 2022.
[77] On August 26, 2022 the Court dismissed a motion brought by the CCF for an Order directing the Respondent to deliver the items for which Cabinet Confidence had been claimed in an unredacted form and on a counsel-only basis, subject to undertakings: Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1233 [CCF v Canada].
[78] A motion brought by the Jost Applicants for an Order to compel production of the records and documents listed in the March 31, 2022 CEA section 39 Certificate was dismissed: Jost v Canada (Governor in Council), 2022 FC 1514 [Jost v Canada].
[79] On November 9, 2022, following further discussions with the parties, the Respondent withdrew the majority of its section 37 and 38 claims. The Applicants did not challenge the claims made under solicitor-client privilege or the remaining CEA claims. The Court dealt with them in an Order issued on January 9, 2023 following an ex parte and in camera proceeding with the assistance of an independent, security cleared, amicus curiae.
[80] On December 12, 2022, CCF and CCLA filed a joint motion in writing under Rule 369 for an order, pursuant to Rule 312, granting leave to the CCLA to file an additional affidavit containing a selection of evidence from the POEC. A few days later, the Jost Applicants filed a similar motion seeking leave to file a supplementary record containing evidence from the POEC and other material.
[81] On January 27, 2023, the Court granted the CCF and CCLA joint motion in Canadian Civil Libe