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MEGA THREAD - EMERGENCIES ACT LEGAL CHALLENGE DAY 2.
We are about to start Day 2 of the hearings challenging the invocation of the Emergencies Act. At federal court in Ottawa, we start arguments at 930 am. Check this thread for live updates.
We are about to start Day 2 of the hearings challenging the invocation of the Emergencies Act. At federal court in Ottawa, we start arguments at 930 am. Check this thread for live updates.
If you want to watch the hearing live, you can stream it here: cas-satj.zoom.us/webinar/regist…
Hearing has not begun, counsel for @CDNConstFound is up, starting with @sujit_choudhry. Split 1 hour each, with second hour by @_JananiS
@CDNConstFound @sujit_choudhry @_JananiS First hour will be about the legal threshold of the EA. first submission on threshold is about reasonableness standard. second point is about evidence. third point is EA stipulates it can only be used as last resort.
@CDNConstFound @sujit_choudhry @_JananiS the second hour by the @CDNConstFound will be about Charter issues
@CDNConstFound @sujit_choudhry @_JananiS Starting with reasonableness, the CCF agrees with CCLA that cabinet is constrained by the statute.
@CDNConstFound @sujit_choudhry @_JananiS CCF calls the AG's claim of exceptional deference for Cabinet as "breathtaking". While Cabinet is at apex of executive, its powers are still constrained (cites Roncarelli)
@CDNConstFound @sujit_choudhry @_JananiS CCF: reasonableness review must be calibrated based on scope of the power granted to Cabinet. The best way to characterize powers given to cabinet is as a de facto constitutional amendment. EA allows cabinet to do things it otherwise couldnt, like enact criminal laws.
@CDNConstFound @sujit_choudhry @_JananiS Origins and text and history of the EA support the conclusion about constraint
@CDNConstFound @sujit_choudhry @_JananiS CCF wants court to draw a contrast between EA and War Measures Act
@CDNConstFound @sujit_choudhry @_JananiS CCF has a table comparing the two pieces of legislation in our compendium. Says the EA is a repudiation of the War Measures Act which was abused by the gov.
@CDNConstFound @sujit_choudhry @_JananiS Against that backdrop it is important to compare the two regimes, which is what the chart does.
@CDNConstFound @sujit_choudhry @_JananiS on most superficial comparison one can see the war measures act included few explicit statutory constraints whereas the EA contains a dense framework of multiple statutory constraints
@CDNConstFound @sujit_choudhry @_JananiS parliaments intent in enacting the EA to replace war measures wasnt just reform. It was about a paradigm shift away from a law that was a thinly drafted and enormous grant of power vs a statute light years away.
@CDNConstFound @sujit_choudhry @_JananiS shows 2 major constrast. First, the triggers that authorize the acts. In war measures act there is a single trigger. War, invasion or insurection (real or aprehended). none of those terms defined.
@CDNConstFound @sujit_choudhry @_JananiS in contrast EA has a 3 pronged trigger. Last resort, type of emergency and threat to security of canada.
@CDNConstFound @sujit_choudhry @_JananiS One law built in multiple hard checks on Cabinet power (ea), and the other had very few (war measures)
@CDNConstFound @sujit_choudhry @_JananiS The CCF factum shows the origin of those provision and how they were strengthened during the course of committee.
@CDNConstFound @sujit_choudhry @_JananiS The original version of the bill didnt define national emergency, and this was criticised for lacking a hard check. So the draft was amended. During committee gov listened and added what became s 3, the definition of national emergency
@CDNConstFound @sujit_choudhry @_JananiS There is also a legislative history around last resort clause. Minister Beattie offered proactive amendments to committee based on concerns from civil liberties group. But it was argued then amendments werent enough
@CDNConstFound @sujit_choudhry @_JananiS that was how the last resort came to be. CCF pulls up quotes from Committee and from Hansard
@CDNConstFound @sujit_choudhry @_JananiS in one quote from legislative history, gov is asked if gov would need to show other laws, like criminal code, were not enough. And gov said exactly right. Very relevant here, where criminal code was not exhausted before EA invoked.
@CDNConstFound @sujit_choudhry @_JananiS Anticipating what Vavilov now requires was actually part of the legislative intent of the EA
@CDNConstFound @sujit_choudhry @_JananiS Mosley: as you know AG argues the court should not put too much emphasis on legislative history.
CCF: it is part of modern principle of legislative history should consider the legislations history. And this was a well thought out piece of legislation
CCF: it is part of modern principle of legislative history should consider the legislations history. And this was a well thought out piece of legislation
@CDNConstFound @sujit_choudhry @_JananiS CCF: there was a reckoning after the war measures act & the government was careful in what they wanted to replace it. the government took feedback, and the feedback went in one direction. To add more explicit constraints. And the court should give weight to that and parl's intent
@CDNConstFound @sujit_choudhry @_JananiS One piece of context is the EA empowers cabinet to restrict liberty. Which in this case Cabinet did with the emergency and financial measures. FCA in case law says where decision is of great significance to individual decision makers must provide MORE justification/explanation
@CDNConstFound @sujit_choudhry @_JananiS Now CCF addresses issue on courts mind - relationship between CSIS and the EA.
Mosley: it is of interest to me.
Mosley: it is of interest to me.
@CDNConstFound @sujit_choudhry @_JananiS Cabinet's determination that there was a threat to security of canada unreasonable bc Cabinet had insufficient evidence to reach that conclusion. Bc CSIS said no threat and an alternative threat assessment was promised in the invocation memo, but never prepared
@CDNConstFound @sujit_choudhry @_JananiS The AG says there was no legal duty to prepare an alternative threat assessment. We have 3 arguments in response that it wasnt just nice to have, but legally required in face of CSIS's finding
@CDNConstFound @sujit_choudhry @_JananiS Mosley: is there some magic to the second threat assessment? It was in the PCO memo. But on larger scheme if Cabinet has a range of inputs about what is going on, does it need to wait for a second assesment? there is nothing in the statute that requires a further assessment.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: it would have been perhaps sensible. But is it required by the law?
CCF: we think required, and by reference to a table we have prepared
CCF: we think required, and by reference to a table we have prepared
@CDNConstFound @sujit_choudhry @_JananiS In this table we show 3 ways EA could have defined threats to security of Canada.
@CDNConstFound @sujit_choudhry @_JananiS It would have been open to Parliament to cut and paste the CSIS Act definition without also saying "has the meaning assigned to it". They could have used it as a template, but said "it's not the same". They could have not linked it.
@CDNConstFound @sujit_choudhry @_JananiS We say Parliament could have chosen a variety of options, and it chose this option that linked the Acts. That has concrete legal consequences. It links the Acts.
@CDNConstFound @sujit_choudhry @_JananiS the effect of that interlinking is not to make CSIS's decision binding. But if Cabinet disagrees, they must point to other evidence. And we have no evidence of what that input was.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: we have the invocation memo.
CCF: yes but that is statements. not evidence. The fact itself says another threat assessment will come is evidence that the gov knew another threat assessment was required
CCF: yes but that is statements. not evidence. The fact itself says another threat assessment will come is evidence that the gov knew another threat assessment was required
@CDNConstFound @sujit_choudhry @_JananiS We ask you to draw adverse inference when Cabinet delegated the decision to the PM to invoke, and when Cabinet agreed not to follow CSIS assessment, that another threat assessment was required.
@CDNConstFound @sujit_choudhry @_JananiS the PCO Clerk emailed senior people that morning to ask for another threat assessment and the memo to the PM said this assessment was coming
@CDNConstFound @sujit_choudhry @_JananiS All of this together, legislative history, the memo and the conduct as well as gov's assertion of privilege that would let us examine the evidence and decision making process should lead us to conclude an alternative threat assessment was required.
@CDNConstFound @sujit_choudhry @_JananiS Last resort clause says EA cannot be invoked just because it is helpful or useful or expedient. It must be necessary. The test of necessity is ordinary law cannot effectively deal with the situation. S. 3.
@CDNConstFound @sujit_choudhry @_JananiS And we've gone through legislative history that shows it was an additional check intentionally introduced by Parliament.
@CDNConstFound @sujit_choudhry @_JananiS The CCF brings up the 14 page document prepared for the house of commons, prepared quickly for the House of Commons. The s. 58 explanation.
@CDNConstFound @sujit_choudhry @_JananiS on page 13 of that explanation under "conclusion" the explanation says "cannot be dealt with under the law of Canada". It is half a sentence in a 14 page document on why the laws of Canada are not effective.
@CDNConstFound @sujit_choudhry @_JananiS This half sentence renders the gov's determination that last resort clause were met unreasonable. The common law of judicial review of any decision maker, including cabinet, provide a real and genuine analysis of why stat. criteria were met
@CDNConstFound @sujit_choudhry @_JananiS Whatever deference may be given to a government acting quickly, this half sentence is not enough
@CDNConstFound @sujit_choudhry @_JananiS The CCF goes through Vavilov about what analysis a decision maker must show to make a decision reasonable.
@CDNConstFound @sujit_choudhry @_JananiS Were not looking for perfection or a judicial standard of reasoning. We're looking for something though. This fell short.
@CDNConstFound @sujit_choudhry @_JananiS What the s 58 explanation provided isnt an analysis, its a bald assertion.
@CDNConstFound @sujit_choudhry @_JananiS CCF going through case law for proposition that Cabinet was required to go through a genuine analysis
@CDNConstFound @sujit_choudhry @_JananiS This is actually required by the statute of the EA itself. s 58 of the act requires a copy of the declaration together with an explanation for the reasons. As we know from Vavilov the statutory context informs the requirement of reasonableness.
@CDNConstFound @sujit_choudhry @_JananiS under s 58 the gov owes a duty for a complete explanation of why the last resort clause was complied with.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: the purpose of s 58 as I understand is not as a sole explanation. Other material has been filed in these proceedings. What can I draw from the limits of that s 58 explanation?
@CDNConstFound @sujit_choudhry @_JananiS Mosley: but it has to be done rapidly. The assumption is there will be hearings and debates on gov's explanation. s 58 is an important document, but it's not the end of the discussion
@CDNConstFound @sujit_choudhry @_JananiS CCF: in the record before us the s 58 is the principle document that speaks to last resort. none of the other documents speak to it directly or provide an analysis of any kind of what last resort requires.
@CDNConstFound @sujit_choudhry @_JananiS As a matter of common law there must be a reasoned explanation
@CDNConstFound @sujit_choudhry @_JananiS Mosley: The IRG minutes also speak to that
CCF: we look forward to being pointed to any portion of those unredacted minutes that engage the last resort clause. We dont see it.
CCF: we look forward to being pointed to any portion of those unredacted minutes that engage the last resort clause. We dont see it.
@CDNConstFound @sujit_choudhry @_JananiS CCF pulls up a list of a few dozen criminal code offences that were arguably at issue in the protests and blockades. There are many many many laws of Canada and in the CC that prohibited conduct related to the convoy. There was no absence of legal authority.
@CDNConstFound @sujit_choudhry @_JananiS The AG says these are hypothetical offences, but CCF assures court they are not
@CDNConstFound @sujit_choudhry @_JananiS And it is a criminal code offense to disobey a lawful court order (like an injunction)
@CDNConstFound @sujit_choudhry @_JananiS This injunction transformed breaches of bylaw into criminal code offences. There was no shortage of prohibited activity.
@CDNConstFound @sujit_choudhry @_JananiS The best evidence that the criminal code was up to the task is the fact that existing criminal law powers were the tools that were used to clear out the protests and blockades
@CDNConstFound @sujit_choudhry @_JananiS if Cabinet concluded the criminal code was insufficient they needed to provide an analysis of some kind, why the injunction was insufficient. Maybe there is an answer. But you cannot uphold the decision as reasonable unless you see that answer.
@CDNConstFound @sujit_choudhry @_JananiS One last issue in remaining time for Mr. Chouhry. The elephant in the room is that Ottawa police were overwhelmed.
@CDNConstFound @sujit_choudhry @_JananiS That is in s 58, in the IRG and Cabinet minutes. The fundamental question is whether that meets the requirements of the last resort clause. The existing law was sufficient, the capacity was not. The solution to that is to deploy more police.
@CDNConstFound @sujit_choudhry @_JananiS Brings up RCMP Act. There's been a lot of talk that RCMP is not the local police. That's true. But it is nonetheless true under RCMP act it is the duty of RCMP officers to engage in and perform duties re preventing crime
@CDNConstFound @sujit_choudhry @_JananiS its an exceptional day when RCMP would have to exercise that power, but it's there. And nothing suggests RCMP officers were not available.
@CDNConstFound @sujit_choudhry @_JananiS An RCMP officer has power to arrest someone committing a crime on Wellington St. the fact they don't is a practice, but they can and this was an exceptional moment. Nothing explains why it wasn't done here.
@CDNConstFound @sujit_choudhry @_JananiS We are back now with @_JananiS for the @CDNConstFound making arguments about the Charter. She will speak for about 1 hour then we have a lunch break.
@CDNConstFound @sujit_choudhry @_JananiS We say the EA measures violate 2b and 2c, and the financial measures violate s 8. And the violations cannot be saved under s 1. We also adopt the CCLA's submissions on s 7
@CDNConstFound @sujit_choudhry @_JananiS On s 2, although the AG claims no breach of s 2 the real issue is the s 1 analysis and not whether a breach occured. Bc a s 2 breached is pretty clear
@CDNConstFound @sujit_choudhry @_JananiS The regulations are drafted so broadly they capture people who didnt create the blockade, had no intention to create one and may not even support it
@CDNConstFound @sujit_choudhry @_JananiS CCF goes through the prohibition on assemblies in the emergency measures
@CDNConstFound @sujit_choudhry @_JananiS scope of prohibition stops peaceful assemblies even if you are not doing anything that amounts to the factors in a, b or c in section 2.1 of the emergency measures
@CDNConstFound @sujit_choudhry @_JananiS you cant go to an assembly where specific harms are taking place even if you're not doing those harms
@CDNConstFound @sujit_choudhry @_JananiS also prohibits you from going to assembly where those harms even arent taking place, but where they could.
@CDNConstFound @sujit_choudhry @_JananiS this captures truck drivers parked on wellington refusing to move. but it also captures a person standing peacefully on parliament hill holding a sign. Theyre just standing there expressing their disagreement near where someone else is disrupting the movement of traffic
@CDNConstFound @sujit_choudhry @_JananiS Even if they dont agree with the disruption of traffic, they face the risk of 5 years imprisonment
@CDNConstFound @sujit_choudhry @_JananiS CCF then turns to the prohibitions on travel to areas where the specified assembly is taking place. It captures a person from walking over to a place where another person is blocking traffic, even if they have no intention of joining or even if they disagree with that disruption
@CDNConstFound @sujit_choudhry @_JananiS the measures also prohibit providing property to someone participating in one of these prohibited assemblies. This is the "aiding provision"
@CDNConstFound @sujit_choudhry @_JananiS The prohibition captures someone who brings water or food at a protest where someone else is disrupting traffic, or even to a person walking to a protest where a disruption hasn't even happened yet. These people are all captured.
@CDNConstFound @sujit_choudhry @_JananiS These are people engaged in peaceful political expression and whose only relationship with people disrupting traffic is simply being at the same event. The prohibitions violate the rights of these peaceful protesters
@CDNConstFound @sujit_choudhry @_JananiS on s 1 of the charter the regulations fail on minimal impairment. they could have been drafted to stop blockades but not violate the rights of people not involved in blockades and who dont intend to form blockades
@CDNConstFound @sujit_choudhry @_JananiS 3 ways regs could have been more narrowly tailored. For example, by carving out a space for peaceful protest. CCF takes court to some case law.
@CDNConstFound @sujit_choudhry @_JananiS Here we have a prohibition that groups in everyone together, whether you intend to cause harm or not. There is no zone of permissible protest as in other cases
@CDNConstFound @sujit_choudhry @_JananiS Another way to make reg more minimally impairing would be if they limited them to blockades. Instead of making it a prohibition on assembling where a blockade COULD happen, they could prohibit blockades.
@CDNConstFound @sujit_choudhry @_JananiS Brings court to a blockade ban that was imposed in Nova Scotia as an example.
@CDNConstFound @sujit_choudhry @_JananiS We dont see that type of narrow tailoring in the emergency measures.
@CDNConstFound @sujit_choudhry @_JananiS CCF takes court to another example, an Ontario regulation that hones in on the problem the government is trying to solve, which is blockades. They narrow the scope of the prohibition to the actual problem, and didnt criminalize people tangential to it
@CDNConstFound @sujit_choudhry @_JananiS other ways the gov could have limited the prohibition is with respect to travel prohibition. To say you cant travel to an assembly to participate in a blockade or create a blockade.
@CDNConstFound @sujit_choudhry @_JananiS Or narrow the aiding provisions to prohibit aiding blockades or people intending to create blockades
@CDNConstFound @sujit_choudhry @_JananiS Another way of more narrowly tailoring the prohibitions is to actually define what it means to "patriciate" in a prohibited assembly. As a result, this prohibition captures legitimate speech.
@CDNConstFound @sujit_choudhry @_JananiS This chills a group of people who have a right to engage in peaceful protesting
@CDNConstFound @sujit_choudhry @_JananiS Mosley: what about having peaceful protesters who may be carried about by the zeal of people engaging in blockades
@CDNConstFound @sujit_choudhry @_JananiS CCF: The onus is on the AG to explain why they needed to group in the peaceful protester to get at the particular harm of the blockades.
@CDNConstFound @sujit_choudhry @_JananiS CCF: The onus is on the AG to show why they needed to get at everyone, not just the people doing specific harms.
@CDNConstFound @sujit_choudhry @_JananiS We have to remember the regs gave police an additional power, to enlist the help of tow truks.
@CDNConstFound @sujit_choudhry @_JananiS The AG needs to tell us why they couldnt just use this additional power of enlisting tow trucks with all existing Criminal Code powers. Why they also needed to create this large net to capture people who were not engaged in a specific harm like a blockade.
@CDNConstFound @sujit_choudhry @_JananiS One thing the AG points to in order to say regs were minimally impairing is that there were exemptions in the travel prohibition.
@CDNConstFound @sujit_choudhry @_JananiS CCF will focus on disclosure provision in the economic measures
@CDNConstFound @sujit_choudhry @_JananiS There are 2 issues. 1. Was there a search or seizure. 2. does it comply with s 8
@CDNConstFound @sujit_choudhry @_JananiS The disclosure provisions is a search. People have a reasonable expectation of privacy about their financial accounts, and i dont believe the AG is denying that
@CDNConstFound @sujit_choudhry @_JananiS In order to comply with s 8, a search power must be reasonable. So we should look at the scope of the search power. Is it broad, or narrow? Here is where we disagree with the AG. We say this is a scope that is broad, they say narrow.
@CDNConstFound @sujit_choudhry @_JananiS AG describes the scope of disclosure obligation on banks. In particular, property that belongs to a person involved in the blockades or related transactions.
@CDNConstFound @sujit_choudhry @_JananiS CCF says this is mischaracterization. They are tying it to involvement in the blockades when that is not what the financial measures actually say.
@CDNConstFound @sujit_choudhry @_JananiS CCF says the economic measures are directly tied to the emergency measures. They go hand in hand.
@CDNConstFound @sujit_choudhry @_JananiS And the emergency measures prohibit people from participating in an assembly where a breach of the peace could reasonably happen, aiding, or travelling to such an assembly.
@CDNConstFound @sujit_choudhry @_JananiS Who does this capture? AG claims it involved people involved in blockades. But tying it to blockades is not found in the orders. It just says a designated person.
@CDNConstFound @sujit_choudhry @_JananiS it would cover banking information about people just standing on parliament hill holding a sign, or walking to the hill to hold a sign.
@CDNConstFound @sujit_choudhry @_JananiS or even the banking information of someone giving water to someone walking to the hill to hold a sign
@CDNConstFound @sujit_choudhry @_JananiS The AG claims this is just simple banking information that is disclosed. We disagree.
@CDNConstFound @sujit_choudhry @_JananiS It includes information about types of accounts, how much money is in them. Transactions are not limited temporally to just time around blockades. Its all transactions, there is no time limit. And it deals with future transactions
@CDNConstFound @sujit_choudhry @_JananiS This is a tremendous amount of information. How you spend your money. How you waste it. Where you go for money. If you see a therapist. Who it is. Organizations you support. Where you go to the gym. If you go to the gym. A lot of info in bank statements.
@CDNConstFound @sujit_choudhry @_JananiS These measures tell banks they need to provide all this information to the police. This is profoundly intrusive and goes to the biographical core of s. 8.
@CDNConstFound @sujit_choudhry @_JananiS When you look at this disclosure provision it is more criminal in nature than regulatory.
@CDNConstFound @sujit_choudhry @_JananiS This isn't like a regulatory search where a lower threshold may apply.
@CDNConstFound @sujit_choudhry @_JananiS There is a prohibition backed by a serious sanction - 5 years in jail.
@CDNConstFound @sujit_choudhry @_JananiS The cases the AG cites for a the proposition that this is an administrative search are not like this. They cites cases about things like business record searches or securities disclsoures
@CDNConstFound @sujit_choudhry @_JananiS In this case you could go to jail for 5 years for giving money to someone going to one of these protests. That is covered by these measures.
@CDNConstFound @sujit_choudhry @_JananiS There is nothing in the order that says you cant use the disclosure for proving the offence under the measures. Nothing would stop it from being given to the crown for prosecution.
@CDNConstFound @sujit_choudhry @_JananiS CCF and Justice Mosley having a back and forth about role and powers of FINTRAC
@CDNConstFound @sujit_choudhry @_JananiS CCF says the provisions about FINTRAC are a helpful example of how the disclosure provisions could have been drafted to make them more minimally impairing
@CDNConstFound @sujit_choudhry @_JananiS These kinds of building in of constraints and limits are what we see in the case law
@CDNConstFound @sujit_choudhry @_JananiS The onus is on the AG to show why they had to take measures they did, target a large group, expose that group to disclosure of intimate details about their lives, instead of taking a more narrow approach. They have to use a legislative scalpel, not a sledge hammer
@CDNConstFound @sujit_choudhry @_JananiS That wraps up the CCF's submissions and we are now heading for our lunch break until 1 pm. After lunch we will hear from counsel for the individual applicants.
@CDNConstFound @sujit_choudhry @_JananiS We are back now with the individual applicants challenging the Emergencies Act. Some of these individuals had their accounts frozen by the financial measures. Representing the individuals are Blair Ector and Bath-Shéba van den Berg.
@CDNConstFound @sujit_choudhry @_JananiS Ector up first. Will address s 8 of the Charter and economic measures.
@CDNConstFound @sujit_choudhry @_JananiS will also address s 1 and bill of rights and due process as it relates to property rights
@CDNConstFound @sujit_choudhry @_JananiS The EA explicitly states it is subject to the Charter, Bill of Rights and international covenant on civil and political rights
@CDNConstFound @sujit_choudhry @_JananiS What this comes back to is the extrajudicial warrant scheme that came from the economic measures
@CDNConstFound @sujit_choudhry @_JananiS the extrajudicial warrant scheme usurped the power of the courts.
@CDNConstFound @sujit_choudhry @_JananiS this extrajudicial warrant scheme is subject to a correctness standard
@CDNConstFound @sujit_choudhry @_JananiS Ector and Justice Mosley spend some time discussing Hunter v Southam, a very important case on s 8 of the Charter and privacy rights (and the first SCC case to consider s 8). You can read a summary of that case here: en.wikipedia.org/wiki/Hunter_v_…
@CDNConstFound @sujit_choudhry @_JananiS Some back and forth on whether Ector's clients had their accounts seized. For 5 days they could not access them. Ector says this is semantics, since they could not access their accounts. But at a bare minimum it was a search.
@CDNConstFound @sujit_choudhry @_JananiS Says it is crucial to the rule of law to have a neutral arbiter, and the financial measures had none
@CDNConstFound @sujit_choudhry @_JananiS The sole arbiters of the frozen bank accounts were banks and the police, with no right to appeal.
@CDNConstFound @sujit_choudhry @_JananiS Even with most charitable interpretation it would contravene the bill of rights as it pertains to due process and property rights.
@CDNConstFound @sujit_choudhry @_JananiS Ector says these are warrantless searches and presumptively unreasonable
@CDNConstFound @sujit_choudhry @_JananiS This is Hunter v Southam, this is good law and cited by courts every day.
@CDNConstFound @sujit_choudhry @_JananiS Ector says this is a warrantless search of bank accounts without any right of appeal. And there was clearly a seizure. But alternatively, in the event the court finds it was not a seizure, it was still a search.
@CDNConstFound @sujit_choudhry @_JananiS Search is reasonable if a) authorized by law b) search was reasonable c) carried out in a reasonable way. There is nothing reasonable of police and banks being the arbiter without appeal of Charter rights
@CDNConstFound @sujit_choudhry @_JananiS Ector turns to s 1. Says this was not minimally impairing and deleterious effects far outweight benefits. In one client's situation, he didnt live in Ontario. His account was frozen, if not for the generosity of others he would have frozen in the cold
@CDNConstFound @sujit_choudhry @_JananiS Ector says he doesnt want to make a purely emotion plea. He has cited a lot of case law and responded to the AG's case law. But what happened here was wrong.
@CDNConstFound @sujit_choudhry @_JananiS Asks court to find the extrajudicial warrant scheme was unconstitutional and his clients rights were violated
@CDNConstFound @sujit_choudhry @_JananiS Bath-Shéba van den Berg up now for another group of individuals impacted by the emergencies act measures.
@CDNConstFound @sujit_choudhry @_JananiS van den Berg wants to follow up on a question asked by Justice Mosley earlier to CCF about the financial measures.
@CDNConstFound @sujit_choudhry @_JananiS The question was about the regulation of particular types of entities and whether or not they were previously regulated.
@CDNConstFound @sujit_choudhry @_JananiS van den Berg moves on to her main submissions, which are about how the EA should be interpreted. Will look at preamble, international treaties and customary international law
@CDNConstFound @sujit_choudhry @_JananiS Court pulls up preamble of EA. Which emphasizes public safety and security and is subject to Charter, Bill of Rights, and International Covenant of Civil and Political Rights, not to be abridged even in an emergency
@CDNConstFound @sujit_choudhry @_JananiS Also wants to make reference to Hansard to help determine parliamentary intent.
@CDNConstFound @sujit_choudhry @_JananiS van den Berg wants to refer to 3 excerpts from Hansard that make reference to the preamble.
@CDNConstFound @sujit_choudhry @_JananiS Passage in Hansard from Minister of Defence. Passage of this legislation will allow fed gov to fulfill its constitutional responsibility... without having to resort to war measures act...a piece of dangerous legislation...the EA will be subject to Charter...
@CDNConstFound @sujit_choudhry @_JananiS Another excerpt from Hansard is pulled up. This one by an MP: this bill provides a maximum number of safeguards...is subject to the Charter... and Parliamentary scrutiny... governed by mechanisms to prevent abuses...
@CDNConstFound @sujit_choudhry @_JananiS The third excerpt from Hansard is pulled up. When EA bill tabled... recognized fact proposed legislation had nothing in common with war measures act... [ea] provides unprecedented guarnatees... will be subject to the Charter... consistent with UN Covenant on Civil and Pol Rights
@CDNConstFound @sujit_choudhry @_JananiS These Hansard excerpts combined with wording of preamble dictates that any measures under the Act must be consistent with the Charter and the treaty on civil and political rights
@CDNConstFound @sujit_choudhry @_JananiS Now some discussion of the role of international law in domestic law. A somewhat touchy area.
@CDNConstFound @sujit_choudhry @_JananiS But for the kindness of other Canadians, van den Berg's clients whose accounts were frozen would have struggled to feed themselves on those days their accounts were frozen. Would have struggled to keep warm in the cold. This was a breach of their int'l human rights
@CDNConstFound @sujit_choudhry @_JananiS van den Berg now turns to the immunity provided to banks. Says this means no recourse for her clients whose bank accounts were frozen. They had no idea what was happening or how to access their bank accounts that sustain them.
@CDNConstFound @sujit_choudhry @_JananiS van den Berg now turns to customary international law, and due process as a customary international law norm. Says she will cite a 2020 SCC case...
@CDNConstFound @sujit_choudhry @_JananiS Due process is the legal requirement that state must respect all rights owed to a person.
@CDNConstFound @sujit_choudhry @_JananiS The SCC case she plans to cite is Nevsun v Araya (I thought it might be!). A case summary is available here: scc-csc.ca/case-dossier/c…
@CDNConstFound @sujit_choudhry @_JananiS This decisions is a divisive one. There was an excellent panel about it at the Runnymede Society conference this january.
@CDNConstFound @sujit_choudhry @_JananiS van den Berg quotes Nevsun where SCC says the rights violations are not new law. Human rights have been developing at large since WW2
@CDNConstFound @sujit_choudhry @_JananiS van den Berg asks court to consider due process as a customary international law norm, to read it coupled with Bill of Rights, against the Charter rights that were breached by the measures under the EA, in particular the freezing of bank accounts without a judicial process
@CDNConstFound @sujit_choudhry @_JananiS van den Berg says if due process is an international law norm, then these measures violated it
@CDNConstFound @sujit_choudhry @_JananiS final submission from van den Berg is with reference to treaties.
@CDNConstFound @sujit_choudhry @_JananiS She says we've heard a lot about how afraid people were with respect to their bank accounts.
@CDNConstFound @sujit_choudhry @_JananiS Says that people should not fear reprisals of having their bank accounts frozen because they exercised their right to freedom of expression
@CDNConstFound @sujit_choudhry @_JananiS Her clients went to Ottawa to exercise their fundamental freedoms. As a result they were punished with no due process.
@CDNConstFound @sujit_choudhry @_JananiS In some countries in the world governments do breach human rights to such an extent people are extrajudicially killed. Taking away access to money is almost like an extrajudicial financial killing. It takes away their right to survive, makes them rely on kindness of others
@CDNConstFound @sujit_choudhry @_JananiS van den Berg says the invocation of the EA and impact it had on individuals lives was more detrimental to canada's international reputation than the protests. It violated rights and there has been no remedy so far.
@CDNConstFound @sujit_choudhry @_JananiS Canada violated human rights and got away with it. This sends a dangerous message internationally.
@CDNConstFound @sujit_choudhry @_JananiS Rules are not directed at an individual case alone but as a system as a whole
@CDNConstFound @sujit_choudhry @_JananiS That concludes the submissions for counsel for the individuals. Justice Mosley has a few house keeping questions. Next up will be the government of Alberta as an intervener.
@CDNConstFound @sujit_choudhry @_JananiS We are back now and next up is the government of Alberta as an intervener
@CDNConstFound @sujit_choudhry @_JananiS AG for Alberta wants to address 4 items. 1. role of constitutional principles. 2. role of provinces [i didnt hear the other 2!]
@CDNConstFound @sujit_choudhry @_JananiS The other submissions seemed to deal with consultation and the EA itself. Although I admit I missed the roadmap so now I'm lost :(
@CDNConstFound @sujit_choudhry @_JananiS That's it for Alberta. One question from Justice Mosley. A clarification about her disagreement of facts regarding Coutts.
@CDNConstFound @sujit_choudhry @_JananiS Justice Mosley says one of the great ironies is that he is probably the only one in this courtroom who held a Class A truckers license. He worked for a short time as a trucker in Southern Alberta. I had no idea!
@CDNConstFound @sujit_choudhry @_JananiS Mosley asks if Alberta is downplaying the seriousness of what was found in Coutts. Alberta counsel says absolutely not, it was serious, but it was resolved. The issue relates to if dealing with Coutts was beyond Alberta's powers.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: do you downplay the alleged conspiracy?
Alberta: my understanding of the facts was not that there was an alleged conspiracy. There was a concern. That's different from evidence of an alleged conspiracy.
Alberta: my understanding of the facts was not that there was an alleged conspiracy. There was a concern. That's different from evidence of an alleged conspiracy.
@CDNConstFound @sujit_choudhry @_JananiS That concludes Justice Mosley's questions for Alberta. He asks the AG if they'd like to start now. They say yes so now the gov will begin defending their case. This will be the first time we've heard from the government on the merits
@CDNConstFound @sujit_choudhry @_JananiS The AG Canada will be splitting his time with his colleague and they will be tackling different issues. He will begin with the standard of review
@CDNConstFound @sujit_choudhry @_JananiS to being first though AG wants court to remember the context. What it was like on Februayr 14 2022 and leading up to it. AG says there was no crystal ball available. No way to see what was going to happen next. We just knew what had happened up until then
@CDNConstFound @sujit_choudhry @_JananiS AG says what all the applicants here have done is engage in hindsight. And that's not how this matter should be reviewied. It should be reviewed in the context of the time
@CDNConstFound @sujit_choudhry @_JananiS AG: Keeping in mind context is important when you look at the s 58 explanation.
@CDNConstFound @sujit_choudhry @_JananiS AG: This revisionist approach played out over the last few days. For instance, a lot of discussion about threats of serious violence. Emphasized threats. You dont need to wait for actual serious violence, because then its too late
@CDNConstFound @sujit_choudhry @_JananiS AG: There was a discussion yesterday that the one measure that fit was the tow trucks. As if this was some secondary concern. But it wasn't. There were threats of violence against tow truck drivers
@CDNConstFound @sujit_choudhry @_JananiS AG: we heard this morning about options for the financial measures that were in the view of those counsel were more precise. That peaceful protests should have been allowed. But how do the police distinguish that?
@CDNConstFound @sujit_choudhry @_JananiS AG: how do police walk into a crowd of tens of thousands with fireworks going off and say "you there, you're peaceful. And you're not"
@CDNConstFound @sujit_choudhry @_JananiS AG pulls up testimony from Clerk Charette and that infamous memo
@CDNConstFound @sujit_choudhry @_JananiS This testimony is about what was going on that day, according to clerk Charette
@CDNConstFound @sujit_choudhry @_JananiS Charette said "it was urgent. It was critical...that was beyond the capacity of any individual province to deal with"
@CDNConstFound @sujit_choudhry @_JananiS Charette said "it didnt seem there was any province that had the power to deal with it on their own"
@CDNConstFound @sujit_choudhry @_JananiS Charette said "but if you look at the totality of it all thats what lies behind this advice"
@CDNConstFound @sujit_choudhry @_JananiS AG also discusses how law enforcement and government were concerned about violence spilling over, citing things like Coutts. That if things didnt end peacefully, it could create a chain reaction across the country
@CDNConstFound @sujit_choudhry @_JananiS AG says what matters is looking at the totality of what was happening. We had a national protest for 2 weeks that overwhelmed police, where despite the existence of statutes the protests continued
@CDNConstFound @sujit_choudhry @_JananiS AG says this was all tied to a politically stated objective (note the AG is quoting from testimony, I believe from POEC)
@CDNConstFound @sujit_choudhry @_JananiS Yes it is from POEC, I missed who the quotes are from though.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: are you going to be addressing economic factors under threat to national security?
AG: yes, probably tomorrow
AG: yes, probably tomorrow
@CDNConstFound @sujit_choudhry @_JananiS AG pulls up another document. A document he says the applicants have skipped over, missing some key passages.
@CDNConstFound @sujit_choudhry @_JananiS I missed what the title is the document is because i dont have a tabbed compendium.
@CDNConstFound @sujit_choudhry @_JananiS AG responds to the CCF submissions from this morning which said the RCMP can make arrests. He says it is not that simple
@CDNConstFound @sujit_choudhry @_JananiS Now AG is having his cocounsel come up for the next half hour to make submissions on a different topic. This AG counsel will make submissions on standard of review in our remaining time.
@CDNConstFound @sujit_choudhry @_JananiS AG: the reasonableness standard applies to Cabinet's decision to invoke
@CDNConstFound @sujit_choudhry @_JananiS AG: question is if cabinet reasonable formed the belief that reasonable grounds to invoke the EA. He says the answer is yes.
@CDNConstFound @sujit_choudhry @_JananiS AG: directs court to some case law (entertainment software), and to some specific paragraphs he says are relevant
@CDNConstFound @sujit_choudhry @_JananiS AG: the case says public interest determination based on wide considerations of policy... polycentric... decisions characterized as quintessentially executive, are very much unconstrained (executive software: isthatlegal.ca/index.php?name…)
@CDNConstFound @sujit_choudhry @_JananiS AG: in this case is the cabinet making a declaration, which is a delicate balancing based on numerous inputs working their way up to Cabinet. based on a rapid fact matrix, about a threat and capacity and shaped by cabinets view of public interest. this makes the decision...
@CDNConstFound @sujit_choudhry @_JananiS quintessentially executive and unconstrained. We're not saying it isnt subject to judicial review, but that it gets deference.
@CDNConstFound @sujit_choudhry @_JananiS The emergencies act language does not offer binary language, AG.
@CDNConstFound @sujit_choudhry @_JananiS The language of the EA is more modern than the unconstrained language in the war measures act. But it gives cabinet the flexibility necessary to act
@CDNConstFound @sujit_choudhry @_JananiS the question is whether it can support multiple reasonable alternatives. AG says the CCLA is seeking to supplement a higher standard, closer to correctness. And AG says this is inconsistent with Vavilov.
@CDNConstFound @sujit_choudhry @_JananiS Ag says Rouleau commented in the inquiry that there is scope for reasonable people to disagree.
@CDNConstFound @sujit_choudhry @_JananiS Mosley: So what am I to make of the report? With all respect to the difficulty faced by the inquiry, but what weight can I give expressions of opinion in reporting those results
@CDNConstFound @sujit_choudhry @_JananiS AG: it is not a decision of a court
Mosley: it is an expression of opinion?
AG: yes, and I think persuasive. And most of our references to the report are about the law.
Mosley: it is an expression of opinion?
AG: yes, and I think persuasive. And most of our references to the report are about the law.
@CDNConstFound @sujit_choudhry @_JananiS AG: When asking if the legal reasoning and logic of the inquiry report hang together, I think this is persuasive. It is not a court, I wont get into if comity applies.
@CDNConstFound @sujit_choudhry @_JananiS AG: the other aspect of reasonableness of the invocation is the reasonable standard to believe on which the measures were taken.
@CDNConstFound @sujit_choudhry @_JananiS That's it for the AG on the standard of review, and the main thrust of the arguments will begin tomorrow. we will resume again with the AG tomorrow at 930 am.
@CDNConstFound @sujit_choudhry @_JananiS AG says he will be done by noon and then we can have replies.
Thanks very much to everyone for following! I'll resume a new thread tomorrow
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