Thread by @cvangeyn

MEGA THREAD ON EMERGENCIES ACT HEARING: The hearing of the challenge to the federal government's use of the Emergencies Act is about to begin. Check this thread for live updates.

The case is being heard by Justice Mosley of the Federal Court in Ottawa. For space reasons, the hearing is actually taking place in a room in the Supreme Court of Canada

The case is brought by the @CDNConstFound, the @cancivlib and another organization called Front Line Nurses. The cases are separate but being heard together

Justice Mosley has entered the court and the many many counsel have now been introduced

Preliminary matters being brought up regarding books of authorities

AG will now have an opportunity to argue 2 motions filed in April of 2022.

The motion has to do with AGs claim of mootness

CCF and CCLA are arguing that the issue should nevertheless be heard

Justice Mosley says he does not want to spend all day on these preliminary matters (regarding mootness)

Another preliminary matter is standing

AG says the he will begin by addressing mootness. And there is 2 stage analysis: live controversy, and if not, should court exercise discretion to hear it anyway

AG takes court to cases about mootness in the past year, in particular, where court exercised discretion not to hear the cases

AG says the similarity between the cases is that a decision in the absence of live controversy would have no practical or meaningful effect

Brings up a case dealing with vaccine mandates that were not heard because of mootness

Brought up a FC case, Lavergne [SIC?]. JR struck regarding vaccine mandates because decision would have no practical impact on rights

Brings up more a recent case, Yates [sic?]. 2 applications struck regarding revoked COVID border measures because the border measures no longer existed

AG cites another case, Spencer, about revoked Quarantine measures, because the hearing would not settle a live controversy between the parties

Another case cited where court didnt use discretion to hear appeal, the case involving attestation and summer jobs (brought by a right to life org). The attestation was eliminated so court didnt hear it

AG just running down a long list of cases on mootness.

AG says clear theme is where issue will not effect rights of parties before court, court should not exercise discretion to opine on it

AG says emergency was revoked over a year ago and so a declaration would have no practical utility. Mosley says the applicants argue that if court doesn't hear it, then the decision of gov to invoke would be evasive of review (this is what @CDNConstFound is arguing)

AG says argument on evasiveness is based on speculation. Says evasiveness applies where there are events repeatedly superseded by other events

AG gives examples of a case on egg cases in Saskatchewan or immigration detention reviews, where each review makes the previous review moot

AG says give extreme rarity of EA's use, we have no idea what a subsequent invocation will look like or when it may occur or what the circumstances will look like

AG says its highly unlikely that the circumstances would mirror the 2022 circumstances

Justice Mosley asks if AG is suggesting that the EA use would have been ripe for a JR during the brief period where it was invoked and in force

Mosley: it could be as short as 24 or 48 hours

Mosley: during that period could an effected party bring an application for JR and have it heard?

AG: perhaps not in a 24 period.

Mosley: well here it was 9 days. During that period, how much evidence was available to any person effected by invocation of the act? To bring a JR

AG: parties were before court quickly
Mosley: but there was a stay motion

AG: we are engaging in a hypothetical about what might occur
Mosley: we have real facts here. A 9 day invocation and the regulations. Putting aside effectiveness, people were effected. Some 200 charges under other statutes laid.

Mosley: But what evidence would have been available to any effected party who wanted a JR?

AG: there would have been some minimal evidence for them to have brought a JR.

Mosley: the s 58 explanation came after

AG: the question for the court is what would be utility to make a decision on a case like this

Mosley: if a case like this one couldnt be heard, when could one ever be heard?

AG: Emergencies are temporary by nature. This is hypothetical. In the future an emergency could be for longer than 9 days. That would be a case where the matter could be brought before the court.

For this court to pronounce on constitutional matters & give declarations in abstract could tie the hands of a future court

AG: court should allow for possibility of a future longer emergency than engaging in an analysis based on facts no longer in effect

CCF and CCLA says there is no live controvery, Front Line Nurses say there is a live controvery

AG: Front Line Nurses argument is hypothetical.
Mosley: no, theyre saying its not hypothetical bc the could be charged even though the reg has been revoked. I understand its a remote possibility. But while remote, is it in fact a real possibility? BC if it is, they are effected

AG: The courts have looked at that issue and suggested it does not militate in favour of discretion to hear regarding mootness.

AG goes back to the earlier cases he cited on mootness

AG: even if there is a remote possibility that does not tip the balance in favour of exercising the discretion to hear the case. We should not be engaging in hypotheticals when deciding whether or not to exercise discretion

AG: The threat of possible prosecution should not weigh in favour of hearing the case

Mosley: But the individual at issue here has said she breached the measures

AG: But there is no evidence that as a result of her conduct any state action under the EA took place.

AG now moves to second part of test on mootness: whether court should exercise discretion (although has already given submissions on that)

1. is there an adversarial conflict
2. is this a good use of judicial resources
3. court's role

adversarial conflict is when collateral consequences arise. Ag says none here because EA no longer in effect and court should not hear moot matter where decision would have no collateral consequences or legal impact on applicants rights

On efficient use of court resources, AG says where decision will not have a practical effect on party's rights it has lost consequences and court should not use scarce resources on it

AG says this is the guiding principle that courts should think about and should guide this court. Court could not deliver any remedy that would effect parties' rights

AG: seeking declaratory relief cannot sustain an otherwise moot application

AG: it is not court's role to decide purely academic or abstract questions when there is no useful function served by declaratory relief (from Rebel News case)

AG: unnecessary constitutional pronouncements should be avoided.

Says law is settled.

AG: this is not evasive of review

AG: we shouldnt use scarce resources just because it may be "helpful". Even if significant resources have already been expended up to this point

AG: third part of test is proper role of court. This is a policy based dispute on appropriateness of invoking the EA

AG: court must be sensitive to its role and not intrude into role of legislative branch

Mosley: isnt this more than a policy dispute? Its about lawfulness of invocation of the act in the context where it arose last year. Its a legal controversy?

AG: Yes there is a legal question but no live controversy.
Mosley: your point is there is no merit in deciding this matter because it was revoked? No point in clarifying the law?
AG: correct, court should not exercise discretion for abstract pronouncements w/o factual foundation

Mosley: even though this law has never been legally interpreted?
AG: yes because we dont know what a future invocation may look like

AG: court should not make abstract pronouncements when we dont know what next time may look like

Molsey: is the question of s 2 of the CSIS Act and how it should be applied abstract?
AG: we dont know how it may be applied in the future

Mosley: thats the realm of speculation of what parliament may do.
AG: speculation is not engage in speculation

Mosley: but thats not the question i put to you. We have the wording of a statute chosen by the drafters of that statute taken from one statute and into another. Is there not some value in how that should be interpreted and applied?

AG: No value because we dont know how that may apply in a future case so court should defer to a future scenario and how the facts of that scenario apply

AG: On proper role of court, the #POEC did an inquiry based on a more extensive evidentiary record and created a report. A joint committee of parliament is reviewing and the House of Commons voted on it.

AG: this should give the court pause and reflect on role given these other processes

AG: legislative history may be relevant but isnt determinative in the way the applicants suggest

AG then moves on to issue of standing

AG: when accessing direct standing court must consider the applicant relative to the general public

AG: applicant must show they are more directly effected than the public generally

AG: the fact that an individual may have stronger feelings is not sufficient

AG: 2 applicants in this case have direct standing. They were impacted by the economic order. Their accounts were frozen. But says remaining applicants dont have direct standing

Note: these submissions are about direct standing, not public interest standing

Now AG moving on to public interest standing

AG says CCLA and CCF dont raise justiciable issue bc issue is moot. And they raise the same issues as direct standing applicants.

Mosley: but those two direct standing parties don't raise public interest issues.

AG: but they raise the same constitutional issues. The best thing for CCLA or CCF to do would be seek intervenor status like Alberta did

Mosley: but they may not have been granted that status. If CCLA and CCF add little to the arguments, as you say, why would they meet an intervenor test

AG: I dont say they meet that test, but if they do, intervenor status is the appropriate vehicle. It's not a good use of resources to grant status to parties where issue is moot and there are already parties with direct standing

AG: The CCLA and CCF request for PI standing doesnt strike right balance between preserving resources and issues in public interest

AG: we also make written arguments on clean hands but we won't make oral arguments on it
Mosley: im grateful for that

AG concludes: Ask to dismiss on mootness and standing

Mosley: On mootness I will resreve and make a decision.

Mosley speaking to the parties on direct standing about who he needs to hear from, or not

Mosley: I will also reserve on standing

Court now on morning break until 11:30 where we will proceed on arguments on the merits

About to come back from morning break. Please note that my tweets are not verbatim quotes, they are synthesized descriptions of what is happening.

Also please forgive all spelling and grammar mistakes, things are moving quickly

Lawyer for front line nurses now up to address standing arguments

Molsey: I don't need a speech on what your clients believe

Counsel for Front Line will address standing issue

Now the arguments have segued into the merits, with lawyer for Canada Front Line Nurses (CFN) making arguments first

CFN: Canada had some of the world's most draconian polices with respect to vaccination. People couldnt see dying relatives in other parts of Canada or leave the country.

Mosley: im not here to judge that
CFN: no, but this is important for the context in which the protests arose

CFN: The real world experience was eroding the government's statements about the effectiveness of vaccines in preventing spread, but the government maintained harsh policies

CFN: Governments and private sector had imposed mandates and tens of thousands of Canadians lost their jobs

Mosley: is there evidence in your record to support this number?
CFN: The court could take judicial notice
Mosley: No
CFN: Well there is widespread information about the existence of these policies

CFN: There is also evidence about different approaches in Nordic countries
Mosley: Again, I'm not here to rule on any of that

CFN: This is important for the context of the protests and it goes to the reasonableness of the approach, and the threat to the security of canada

Mosley: I will hear you on that
CFN: There were statements by the PM that he was opposed to vaccine mandates, and yet by the summer when it was a wedge issue they implemented those very mandates

CFN: And the PM called those who opposed vaccine mandates "misogynists, racists etc", all from a PM who repeatedly wore blackface
Mosley: I'm not interested in these political statements, if that's what you're going to do you may as well sit down

CFN: After 2 years of devastated we then have the trucker mandate imposed

CFN: This is when the freedom convoy began. People who had not been able to travel or see their families finally had a voice. They were not a fringe minority.

CFN: This gave rise to a worldwide movement

CFN: This is the context
Mosley: youve belaboured the point. Move on.

CFN: When protesters arrived in Ottawa the government refused to engage in dialogue.
Mosley: I'm regretting my decision to have you heard. This is of no assistance to the court.

CFN: It had become a worldwide movement, other countries had parades protesting covid mandates. And the AG has even cited this.

Mosley: I am here to consider whether invoking the EA was reasonable and lawful. You have pushed the context. Get on to the law

CFN: Cabinet does not have free reign in interpreting a statute. Cabinet's decision to proclaim a public order emergency is constrained by the purposes of the act

CFN: cabinet is required to comply with the definitions in the act before proclaiming a pub order emergency, defined in s 16 of the act

CFN: public order emergency has 2 criteria. threat to security of Canada and the threat needs to be so serious as to be a national emergency

CFN: threat to security of canada has meaning to it assigned in s 2 of the CSIS Act

CFN: there are a number of potential threats, espionage, sabotage, etc. My friends suggest activities in Freedom Convoy were captured by activities... of serious violence directed to an ideological goal [sic]

CFN: I concede the protest was designed to achieve a political objective. But not that to achieve those objectives were there threats of serious violence against persons.

There was a political basis for the protest, but it was not a threat of act or use of serious violence

CFN: The PM was examined in the #POEC.

CFN: a national emergency is defined as an urgent and critical situation of a temporary nature that seriously endangers lives or security of Canadians and exceeds capacity or authority of province to deal with and cannot be effectively dealt with under any other law of Canada

Lawyer for CFN making point that this wasnt met in this case. Citing that borders were already reopened or reopening.

CFN: court should have serious concern over painting large protests - tens of thousands - with the same brush.

Mosley: are you referring to the swastikas?
AFN: yes in part, but also the weapons in Coutts. The AG will seek to link that to Ottawa and the court should be cautious about taking that piece of evidence and linking it to the whole protests

Mosley: Isn't it linked to Diagalon?

Some back and forth here about role of Diagalon and how connected it was to the larger protests

CFN: What CSIS thought matters and speaks to the reasonableness of Cabinet deciding there was a threat to security of Canada

Recall from #POEC that CSIS found that the protests did not constitute a threat to security of Canada under their statute

CFN pulling up evidence about CSIS Director Vigneault's attendance at the Incident Response Group (subgroup of Cabinet tasked with addressing Convoy)

CFN pulling up evidence that Vigneault of CSIS said at no point did the convoy constitute a threat to security of Canada under s 2 of the CSIS Act.

Vigneault confirmed he expressed these views to IRG

CFN: CSIS did not consider what was happening in Ottawa, or what had happened elsewhere re the protests, as a threat to security of canada

CFN: what happened was the creation of a fantasy version of the protesters.

CFN: These were not far right groups with foreign money trying to overthrow the government in a january 6 style. We can disagree with their perspectives. But they were not violent insurrectionists or a threat to the security of Canada

CFN: There were not overt violent acts. Although there was perhaps annoyance to residents of Ottawa

CFN: this was by and large a peaceful demonstration. I accept there were crimes of nuisance or mischief. But no crimes that were a threat to the security of Canada

CFN: We've got this "MOU", and certainly seems to call for a different type of government. But it wasn't supported by Front Line Nurses. And just because it calls for a different form of government doesn't mean it's calling for an insurrection.

CFN lawyer compares the MOU to calls to end the monarchy. This calls for a fundamental change but that doesnt mean we should forbid that debate in our country. As long as there weren't attempts to achieve those goals through serious violence or calls for serious violence

Mosley: This "MOU", I'm at a loss about what it has to do with this case
CFN: The AG is relying on it in their case to claim there was some sort of call for insurrection
Mosley: I must have missed that

Mosley: Only thing it demonstrates is we've failed to educate our public about our constitution and system of government

court now on lunch break

Hearing is back in the @CDNConstFound legal challenge to the federal government's use of the Emergencies Act. I'll be live tweeting things as they progress. Quotes are not verbatim and not for attribution, apologies for all spelling errors.

@CDNConstFound CFN: Pulling up the quote from the PM about protesters being racist, misoginst, etc. calling for an overthrow of the government, and says that the MOU is a part of that claim by the AG that the protests were about an insurrection. That's why he introduced the MOU

@CDNConstFound CFN lawyer talks about the tactics of protesters, including bringing children to protesters, blocking street, and noise. And that none of this rose to a threat to the security of Canada.

@CDNConstFound CFN addresses how gov argues ideologically motivated violent actors "may" be motivated by the protests, but that there is no identification of who these people are or what they may be planning. That jerry cans of gas, honking, and waving flags is not a serious threat of violence

@CDNConstFound CFN: focus not on what is, but "what ifs" in Cabinet's consideration of acts of serious violence. What if can be part of consideration, but there needs to be an actual threat of serious violence.

@CDNConstFound CFN: imagine the harm to democratic right to protest the government if this were the test.

@CDNConstFound CFN: yet this seems to be the reason that PCO supported the invocation of the EA

@CDNConstFound CFN lawyer quotes the PM from #POEC saying what if something terrible had happened. But says this isnt' the threshold, there need to be credible threats or actual violence.

@CDNConstFound CFN reminds court that CSIS did not believe such threats or violence existed.

@CDNConstFound CFN: cites PCO doc relying on disturbance and public unrest, and how it is being felt beyond Canadian borders and that this may give momentum to the movement. May cause other harms to "social cohesion, national unity, and Canada's international reputation".

@CDNConstFound CFN: those are political concerns. They're not concerns about serious threats of violence or actual serious violence. It's an improper motive for the invocation of the Emergencies Act.

@CDNConstFound CFN cites the PCO doc saying that these concerns that these are within the scope of "threats to security of Canada" (in PCO's opinion), but that this interpretation "may be vulnerable to challenge"

@CDNConstFound CFN lawyer says this reveals the true intention for invoking the act. It's about social cohesion, reputation and national unity.

@CDNConstFound CFN lawyer says the Freedom Convoy did give a voice to people all over the world. In that respect, the gov is right. They had a movement they could attach themselves to. And that public opinion was changing.

@CDNConstFound CFN says no serious injuries, a vague MOU, CSIS saying no serious violence or threats, and then we still have the invocation of the Emergencies Act

@CDNConstFound CFN says this gave the gov a new power we'd never seen before, a hallmark of totalitarian regime. The ability to freeze protesters and anyone who supports them out of the financial markets and their own financial accounts without any due process

@CDNConstFound CFN: this was crass politics, not about any national emergency

@CDNConstFound CFN says that the AG says only people who participated were targetted, not their supporters. But the order was broad. And Lametti was asked if donors should be worried...

@CDNConstFound Lametti answered, "if you're a member of a pro trump movement who has donated hundreds of thousands to this you should be worried" [sic]

@CDNConstFound CFN reminds the court that there is some irony in this given that it was the Trump administration that developed the vaccines through project Warp Speed.

@CDNConstFound CFN hammers home the point that still anyone who did donate ought to be worried and the government wanted to send this message to their political opponents. And it worked.

@CDNConstFound People who anonymously donated were hacked. There is stigma associated because gov equated donating with threats to the security of Canada. Some people who donated got disciplined by their employers. The net was cast wide.

@CDNConstFound Lawyer for CFN now turning to the regulations under the Emergencies Act: the Emergency Measures. Including what he calls a new and novel definition of breach of the peace.

@CDNConstFound CFN walking through the different regulations, including prohibitions on foreign nationals. But says most insidious measure is section 5.

@CDNConstFound That's the provision that deals with prohibited assemblies

@CDNConstFound Says it even applies to groups that support the supporters of the protesters

@CDNConstFound Lawyer for CFN then turns to financial measures. Says it put a duty on financial institutions to cease doing business with a designated person, in an unclear process.

@CDNConstFound Cant make available any property of a designated person. The net is cast wide under the Emergency Regulations to apply to anyone who in anyway supports any person who participated in one of those prohibited gatherings.

@CDNConstFound CFN lawyer says the insidious message is clear: dont support this government's political enemies

@CDNConstFound CFN says Justice Minister Lametti's message and the language of the orders resonated with Canadians.

@CDNConstFound CFN turns to another what he called precondition to invocing the Emergencies Act, and the word "effective" with respect to existing law. He says this makes it a last resort clause.

@CDNConstFound He says the question is whether existing statutes can be used to address an emergency, and this makes it a requirement of last resort.

@CDNConstFound CFN then goes through some other statutes that could have been used, like the Criminal Code, injunctions, etc.

@CDNConstFound CFN there was no injunction sought here in Ottawa by the government. It was sought by the province for the border crossings in Ontario. CFN lawyer says perhaps government was afraid an injunction might have achieved a balance that allowed some protest to continue

@CDNConstFound and CFN lawyer says government didn't want that result. With injunctions there isn't a prohibition, there is a balance. So it was a tool that was never attempted before the "sledge hammer of all sledge hammers" was used. And this is fatal to the gov's position.

@CDNConstFound Fatal that the other laws of Canada, including the common law, were not used and instead gov used the EA sledge hammer.

@CDNConstFound (note these are summarizes of the arguments by the CFN lawyer)

@CDNConstFound CFN lawyer says the preconditions of the EA were not met so the measures under it were ultra vires.

@CDNConstFound CFN says the measures were overbroad and disproportionate and a breach of the Charter and Bill of Rights

@CDNConstFound CFN says his friends will make more extensive submissions on Charter

@CDNConstFound CFN says he wants to focus his submission on the Bill of Rights. Some of us have enough seniority to remember the Bill of Rights and the Charter debate on the inclusion of property rights.

@CDNConstFound CFN says the legislation makes clear that both the Charter and Bill of Rights apply to it.

@CDNConstFound CFN: when it comes to the freezing of accounts, there was simply no process.

@CDNConstFound CFN: there isnt even a minimal amount of procedural fairness. No hearing, no information about becoming a designated person, no right to challenge that status.

@CDNConstFound CFN: The manner in which the order for freezing accounts was implemented went even beyond what was contemplated.

@CDNConstFound CFN: the order was designed to breach privacy expectations

@CDNConstFound CFN: every record with an interaction with police was shared with financial institutions. What they did went even beyond the order.

@CDNConstFound CFN: it is a breach of the bill of rights to deprive Canadians of their property with no due process, and there was no process at all here

@CDNConstFound CFN: we look to the courts to provide a check on this government's abuse of power and declare the invocation of the Emergencies Act ultra vires.

@CDNConstFound Lawyer for Canadian Front Line Nurses is now wrapped up. Before the CCLA makes submissions we will take a brief recess.

@CDNConstFound Lawyer for the CCLA now up and having documents pulled up so she can refer to them

@CDNConstFound CCLA: we are challenging decision to invoke the EA and the regulations under it. These submissions will be on whether Governor in Council's interpretation of the legal threshold to invoke was reasonable.

@CDNConstFound Co-counsel to address Charter

@CDNConstFound First group of submissions will be what is reasonableness in this context. This is a JR, the standard of review is reasonableness so what is relevant is factual and legal constraints that bear upon the decision

@CDNConstFound Reasonableness should consider the s 58 explanation (similar to a regulatory impact statement), but a higher prupose because it's mandated. And other docs that speak to reasonableness is info before IRG and before the PM who ultimately made the decision

@CDNConstFound CCLA: First issue is reasonableness and what it means in this context. The AG says bc of nature of decision maker (GIC), a significant amount of deference is owed

@CDNConstFound CCLA strongly disagrees with this submission about deference. AG says it is a policy making role that GIC is engaged in that grants this deference.

@CDNConstFound CCLA says just bc GIC is at apex does not stand for the proposition that this deference is owed. It is the statutory language and context that are important

@CDNConstFound In our minds (CCLA) this is very important in this context. It can't be just bc the decision maker is GIC it is given more deference. This would have massive consequences on parliamentary democracy and rule of law

@CDNConstFound CCLA says the decision maker is also constrained by parliamentary language and statutory intent

@CDNConstFound CCLA now going through case law around reasonableness

@CDNConstFound Cites a case by justice stratus about types of deference owed to a decision maker. Which stresses it is not the nature of the decision maker but the words of the statute.

Justice Mosley's computer crashed so we are on a break

*Stratas.

Autocorrect, apologies.

We're back now after a technical break!

CCLA still going through cases related to deference and reasonableness.

Looking at a decision under the Environmental Assessment Act and decisions by GIC, amount of deference afforded.

Cites another decision that GIC made a decision under, involving Corruption of Foreign Officials legislation, where criteria under the statute is broad.

CCLA's point: it is not the decision maker that determines the deference level to a decision maker for reasonableness. It is the statutory language. And this is consistent with Vavilov.

CCLA: the specific wording of the legislation is very important in determining the level of deference.

CCLA: ive spent time on this because we are asking if the question of the gov's interpretation of the EA language was reasonable.

CCLA: And the legislation in this case has very different wording from the cases we've just looked at, which had a more policy oriented analysis by GIC

CCLA: which was a part of their statutes

CCLA: now we move on to the legal test for invoking the Emergencies Act

Court pulls up the text of the Emergencies Act, which defines "national emergency"

2 main pillars of invocation: 1. threats to security of Canada. 2. a national emergency.

This is important because there are 4 types of emergencies in the legislation, and this is a different one because of the use of the term "threats to the security of Canada"

Turning to the term "threats to security of Canada", CCLA looks at the submissions of the AG and how that phrase should be interpreted.

The AG's argument (as explained by CCLA) is that threat to security of Canada cannot be interpreted just by CSIS act because its a different context. AG says determination by CSIS is not conclusive different different legislative purposes and contexts.

CCLA: lets step back and look at where the definition of threats to the security of Canada came from. There were some commissions arising out of excesses of the government related to the War Measures Act

CCLA going through the legislative history of the definition of threats to the security of Canada in the CSIS Act

CCLA: there is a foundation for this phrase, coming from the McDonald Commission and Pitfield report [sic]. Legislative histories are helpful for determining legislative intent and useful for interpretation.

Pittfield Report discusses the definition, and says it relates to political violence.

CCLA: When we look at the entire scheme of the EA we have 4 distinct types of emergency. Only public order emergency has threat to the security of Canada.

CCLA turns to AG's argument that the context of the CSIS act and EA are different. CCLA disagrees that the context creates a different definitional threshold.
Mosley: do you agree it's a different context?

CCLA: yes but that doesn't change the statutory interpretation. In both acts the consequence of the threshold being met is a gov entity will create rules or undertake activities that have charter consequences.

CCLA: with respect to the CSIS Act, it is individuals
Mosley: or groups
CCLA: yes, or groups. But in EA, it is going to have limits on freedom of assembly not just on individuals or specific groups. But potentially, as here, on Canada as a whole

Mosley: When EA was adopted they had just adopted the CSIS Act. It had never been interpreted. The big difference is CSIS uses it, which gives them scope for investigation and surveillance. The threshold to get there is low.

Mosley: If they want to go beyond that, they have to come to the courts. And it takes months. Here, we have a rapidly evolving situation nationally. A problem in Ottawa beyond police capacity. And gov is looking at what to do.

Mosley: I can tell you the affidavits to support CSIS warrants are extensive with hundreds of pages of supporting material and take months.

Mosley: Here you have a rapidly evolving situation. I have a problem, in part bc I know a great deal about how the CSIS Act works. This is sui generis, we've never done this before. The definition has to be applied.

Mosley: CSIS Director says the definition doesnt work for our purposes but had no problem having it applied in this context. How do you respond to that?

Mosley: There have been a lot of problems with CSIS assessments over the years. When I hear the argument you have to rely on a CSIS assessment as a key factor, I say well... gee... I don't know about that.

Mosley: It still comes down to stat interpretation and how to apply it in this context. That is the challenge.

CCLA: yes parliament used an untested definition when they put the CSIS definition in. To my mind, what parliament was creating was a requirement of a threat of int'l or domestic terrorism of such a scale it cannot be dealt with by other laws of canada

CCLA: the issue is what is the different context is the AG has not said what that threshold is. They cannot be suggesting the threshold is lower. And the Prime Minister agreed with that. The threshold should not be relaxed.

CCLA: if the threshold is one thing for individuals or specific groups, it cannot be lower for the entire country.
Mosley: Not lower
CCLA: I might even say higher!

CCLA: CSIS Cirector Vigneault was at the IRG, he could express his views. He was getting the same inputs as IRG and Cabinet. Yet he came to the conclusion it didnt meet the threshold for his statute. He said he was told for the EA the context was different.

CCLA: Just because the context was rapid, does that mean CSIS can't respond to rapid situations?

CCLA: Parliament didn't have to add that definition, but they did. And that's difficult to overcome. And through all those years Parliament didn't change it. Both statutes talk about safeguarding national security. The distinction is the powers that are granted.

CCLA: I hear you that there was a rapidly evolving and untenable situation. But in my submission if they don't have the director of CSIS saying the definition is met they have to point to something else that was persuasive and of a similar nature

CCLA: We don't have that here.

it's not in the promulgation or s 58 explanation of anyone explaining the difference.

CCLA: nothing explaining what was akin to threats of serious violence. If you're going to depart from the stat definition that parliament constraints you to apply you need to justify it

CCLA: especially in the context of the EA where transparency and accountability are critical

CCLA: if cabinet is going to say we can't meet the CSIS definition, you need a justification for why the contextual defintion is met. The lack of that justification creates the reasonableness problem under Vavliov

CCLA then turns to what AG has said was the threat to the security of Canada. And they give great attention to Coutts, calling it "front and centre"

CCLA: the problem with relying entirely or significantly on Coutts is that its not clear how Coutts was at that level of significance. Because then wouldn't CSIS have said the their threshold was met?

CCLA: the problem is that Coutts is also dealt with by the RCMP. The seizure of weapons was under a search warrant under ordinary laws of Canada. What is unique or distinct about that?

CCLA: another thing is the "MOU" which the AG cites. Which is an indictment of our civics problem. But if it was such a threat it would have been identified by CSIS

Mosley: Do you exclude the possibility that CSIS wasnt aware?
CCLA: Id be very worried if CSIS wasn't aware because it was all over the news all the time. And it was cited in the s 58 explanation

The other parts of the s 58 explanation talk about ideologically motivated violent extremism.

CCLA: to my mind, this is within the CSIS wheelhouse, they are able to deal with those threats. Yet they did not think it rose to that level of threat to the security of Canada

CCLA: its difficult to understand how those same facts and examples can be looked at by GIC and be met, but CSIS with its expertise in intelligence and being able to distinguish between threats, did not think it was met

CCLA then considers how the s 58 explanation spends a lot of time dealing with economic impacts of border blockages. The AG doesnt justify the use of the EA on the basis of these economic concerns, and that's right. Bc they do not meet the definition of threat.

CCLA: Parliament made a choice not to include economic disturbance as a public order emergency.

CCLA: Parliament did consider this for things like natural disasters. We need to be mindful of the importance dissent, strikes (in particular) are going to cause economically. We don't say they are violent.

CCLA: we should not be invoking the EA to quell dissent just because that dissent can cause economic hardship.

CCLA: economic hardship cannot be part of the threshold for threat to the security of Canada

CCLA pulls of memo from PCO. This was drafted by clerk of PCO to the PM about whether or not to invoke, to summarize all the inputs provided so PM can make an informed decision

The clerk summarizes the test. CCLA says there is a discussion on whether threat to security of Canada is met. Clerk acknowledges Ambassador Bridge cleared. But writes situation nationally uncertain and volatile

CCLA expands on the Clerk's memo, which outlines threats to social cohesion, national unity and international reputation.

CCLA: in a democracy where gov's enact laws, there maybe unrest in opposition to policies. We saw it recently in Israel. That is legitimate.

CCLA: if Cabinet is going to depart from what is the more traditional or apprent interpretation of the EA and CSIS act, there needs to be something there to justify it. What is the different context?

The existence of public unrest over public health measures is not of a quality that should be accepted as justification for invoking this act.

CCLA: the reasonable way to interpret the EA is to say you do need to look at threats to security of Canada under CSIS Act. If youre going to depart, you need to give specific justification.

CCLA: public order emergencies are threats to the security of Canada when existing laws are not enough to deal with it.

CCLA: The AG doesn't offer this other than to just assert it is a different context. That is worrying. We need to know what that "something else" is. To be fair to Cabinet, they need to know too.

CCLA: the second part of the test for public order emergency is cannot be effectively dealt with by any other law of Canada or provs/terrotories

CCLA: lack of clarify by AG here about why this situation could not be dealt with

CCLA: the borders were cleared. There is no indication what additional laws or resources were needed.

CCLA: the s 58 explanation mentions situations that were all dealt with by police under ordinary powers. No identification of what was missing, though there was a lot of discussion especially at #POEC about tow trucks

CCLA: to my mind, tow trucks is rather a small point

CCLA: with respect to Ottawa, the protesters in Ottawa did become intractable. But that was more tied to absence of resources at the time. Its not as if the emergencies act gave more resources.

CCLA second chair now up to discuss Charter issues related to the orders under the Emergencies Act

CCLA: the Charter issues tie in with the administrative law issues. The orders went too far. But unlike the admin law grounds, these are reviewable on a standard of correctness.

CCLA: First submission, the restrictions on assembly violate s 2 of the Charter.

CCLA: second submission is on prosecution scheme

CCLA: the prohibtion covered all disruptive protests everywhere

CCLA: third submission is on privacy rights and s 8

CCLA: fourth submission on section 1 justification

CCLA says declaratory relief must be available in cases that are technically moot, and then gives examples, including the SCC decision in Ontario v Toronto about the shrinking of City Council. Another is a criminal case called R v JJ.

CCLA makes arguments on s 2 rights. 3 of the orders are about prohibitions (assembling, travelling to assembly and providing property). With up to 5 years imprisonment. These violate s 2b expression.

With exception of violence at Coutts, this was all political non violent expression

CCLA: whatever people think of the protests, they were pollical expression.

CCLA: the orders prohibit this expression.

CCLA: The AG says this was constitutional because the protests involved breaches of the peace.

But the standard was "reasonably be expected to lead to a breach of the peace"

CCLA: protests often take place on roads that interfere with movement of people. This was too far in chilling expression. To accept the AG's position we'd have to think all these protests were violent, or to narrow the scope of the 2b expression to include non violent expression

CCLA now moves to 2(c), infringement of peaceful assembly. We are in agreement only peaceful assemblies are protected.

Our disagreement is in articulating that line between peaceful and violent. Cases don't help much because decisions are usually under 2(b)

CCLA our submission on both rights is the same to the extent that the orders prohibit non violent protests they violate s 2b and c rights

Question is whether regulations went to far and prohibited protests that were peaceful. And CCLA says they did.

Mosley: You have a situation where people are stopping a major thoroughfare. Parked right outside this building. Making life miserable for residents. And saying we aren't going anywhere. That is certainly cohersion?

CCLA: At the time, any protest on the road that is disruptive has that effect
Mosley: none of those examples are of a nature where the police can't deal with the situation. Here we have a situation where local police appeared unable to deal with the situation

CCLA: In this case the prohibitions were nationally, in all of Canada. That was a constitutional overbreadth and it went to far.

CCLA: insofar as the orders prohibited non violent protest, they are unconstitutional

CCLA then turns to section 7

The liberty interest is engaged here (because it came with a term of imprisonment was a punishment under the orders). The question CCLA raises is whether the orders were overbroad.

CCLA: overbreadth is concerned with a disconnect between purpose and effects

CCLA: the context here is the statutory scheme and factual situation the orders were responding to.

The purpose isn't to end protests everywhere

CCLA: even accepting there could be a "preventative" purpose, the protests were focused in certain places. Certain borders and Ottawa. There is no suggestion they were reasonably likely to occur anywhere.

And any type of protest could have been caught here if it was disruptive. For example, logging protests.

Government can't avoid overbreadth by pointing to some mere possibility. It has to be a reasonable one. (cites Haywood)

*Heywood

Justice Mosley says for reasons he won't bore us with, he is extremely familiar with Heywood and we don't need to get into it

CCLA also cites Ndhlovu [sic] to support arguments on overbreadth

those cases would further to *some* degree the purpose of the law, but there needs to be a connection between purpose and effects.

It is not enough for the AG to say "it could have happened anywhere else". Protests were taking place in certain places for specific reasons.

Next the CCLA turns to section 8 protection against unreasonable search and how it applied to the financial measures

CCLA: here there is no prior authorization and no substitute.

CCLA: the key reason that the banks were acting was because the RCMP was giving them the names of individuals.

CCLA:what would happen was on the day the measures came into force the RCMP prepared a list of names and gave it to banks, and the accounts were frozen.

CCLA: the RCMP was using banks as a conduit for asset freezing. They were doing it without any objective criteria about who was targetted, why or how to challenge it.

CCLA: If police believed someone should be designated to have assets frozen, their name was given by police to the banks. This is enough to render the orders inconsistent with s 8

Mosley: do you have a response to AGs argument this was not a seizure it was a freezing?

CCLA: When objectives of a restraint order are considered there is no doubt it is a seizure under s 8 (cites a case, I think Roche)

CCLA: section 8 doesnt protect property rights, only so far as there is a super added impact on privacy rights. And we say there is because there is a reasonable expectation of privacy of the thing being seized

CCLA: Even if you dont agree this is a seizure under s 8, the disclosure of information is enough to trigger s 8

CCLA: there is some suggestion by the AG that the hunter v southern standards can be relaxed in administrative context. Not sure what difference it makes. Its not that we are substituting a lower standard, we are substituting NO standard. That cant survive s 8.

CCLA: I want to make 3 points on s 1.

CCLA: conclusion that invocation of EA was reasonable is not determinative of the s 1 issue. Just confirms validity of the government's objective.

Second point: govs burden requires evidence not just speculation. Gov must show infringement demonstrably justified. Must be jusitifed on rational evidence. Bare assertions wont suffice. Cites Ndhlovu [sic?]

CCLA: third point. It would not have been hard to tailor the measures more carefully. Just geographically, or more specificity on types of protests and limit just violence. Instead the gov prohibited all kinds of protests even if unrelated to basis for invocation of EA

CCLA cites critical infrastructure protection act. While not opining on its constitutionality, notes it is more specific.

On section 8 the order could have been drafted to include better protections, like an objective standard. This isn't a hindsight analysis, it is rooted in case law.

CCLA: s 1 and charter demand more than just identifying a specific problem, it requires evidence to show why the infringements were justified

That wraps up CCLAs submissions for the day.

We are wrapping up now, court returns tomorrow at 930 am with @CDNConstFound making our submissions. Looking forward to it! Thanks for following along, and hope you give me a follow to see what happens tomorrow.

@CDNConstFound @UnrollHelper