Thread by @cvangeyn

MEGA THREAD: Emergencies Act Legal Challenge DAY 3

Today is the third and final day of hearings in the CCF legal challenge to the Trudeau government's use of the Emergencies Act. Follow this thread for live updates.

If you want to stream the hearings LIVE you can register with the court to watch them here: cas-satj.zoom.us/webinar/regist…

Up first this morning will be the Attorney General of Canada defending the case. We expect the AGC to speak until around noon, and then we will turn to replies.

Justice Mosley has now entered the courtroom, and comments on the nasty weather outside (freezing rain in Ottawa tonight - pray for my flight home!)

There is an issue with the transcription this morning, we are going to proceed though so as to not delay the hearing

AG: Today I will deal with reasonableness of invocation of EA. Beginning with an overview. Will discuss reasonable grounds to believe threshold and its importance

AG:will address threats to security of Canada and how they were met, why it was reasonable for Cabinet to havea different understanding than CSIS and the second threat assessment

AG: Will also address why situation could not be dealt with under any other law of Canada

AG's cocounsel will deal with other topics, including Charter arguments

AG overview: invocation of EA was reasonable. There was an extraordinary context that demonstrates clear and compelling basis for Cabinet to believe live, safety and economic wellbeing of Canadians in danger

AG: the fact that this wasnt in every single part of Canada doesn't diminish this

AG: on the ground, other measures like injunctions and police measures had been flouted and been ineffective. Police had been swarmed trying to arrest people or issue tickets. Blockades were threatened nationwide.

AG: the situation was entrenched and the situation at economically significant border crossings was dire

AG: existing authorities and options were being canvassed. But ultimately led to culmination of process in the invocation of the EA

AG: the applicants have been saying the situation was being resolved. This is just short of revisionist history, or at minimum is a view that has hindsight bias. Its not unreasonable to speculate things could have gotten worse

AG: Windsor had declared a state of emergency bc they were worried things would get worse. The wellbeing of Canadians was threatened by trade disruption

AG: In Coutts there was conspiracy to commit murder. There was a discovery of weapons and body armour marked with extremist logos

AG: this is significant given the volatility of the events

AG: in an emergency action must be taken on an urgent and forward looking basis to address a temporary situation. To deal with THREATS. Not just violence. You don't need to wait for loss of life. You dont need to wait to see if measures worked.

AG: Parliament did not intend for the government to have to wait until it was too late

AG: The primary interest in invocation should be resolving the situation as quickly as possible using minimal force

AG: Although technically irrelevant, the measures were successful. They brought the situation under control in 9 days. That is a remarkable acomplishment

AG: The point is parliament ensured invocation is subject to direct parliamentary supervision. The invocation must be affirmed by parliament and a s 58 explanation is required. There is a parliamentary committee and an inquiry. And judicial review is also available

AG: That's how we're here. And we know the FC is in the practice of expediting things

Mosley: As we have seen over the past year, getting information about the reasoning that went into invoking the decision is like unwrapping and onion. Much of what is in the record now did not even emerge until July after a privilege claim by gov was abandoned

Mosley: the difficulty is there would have been little before the court other than the s 58 explanation had there been an immediate hearing after invocation or revocation. There wouldnt have been much there

AG: yes but that doesnt impede a different case. It depends on what happens in each case. My point is if the record was deficient and it didnt support invocation the court could take measures

AG: Parliament intended JR to be available, but it is case dependant

Mosley: The AGs position at the beginning was only the formal instruments were to be disclosed and that told us very little.
AG: yes. The measures need to live and fall on the record before court. Here we have a larger record, but less than what was before POEC

AG: Here our record is fundamentally different
Mosley: but different from what it would have been in Feb or March 2022
AG: Agree

AG now turns to reasonable standard to believe and reasonableness standard

Says mosley is familair because of his work on national security certificates

AG: Cabinet can declare emergency when it has reasonable grounds to believe
Mosley: one footnote caught my attention. From House of Lords. I've written about that decision. Lord Hoffman in that case had reason to regret his enthusiastic response to 9/11 given following abuses

Mosley: HOL began to backpedal from its original position (Raymond) so I don't give that case weight for its original proposition

AG: the reasonable grounds to believe standard is not nothing. its not suspision. Its not subjective. There is objective grounds for the belief based on evidence. But it doesnt require a balance of probabilities.

AG: the point is it is confusing to import probable language into reasonable grounds to believe. Maybe it works in criminal context but in JR and admin law we know the court assesses the decision makers belief in context and there has to be a scope for judgement calls

AG: Ill wrap up that point by saying we have to be careful talking about reasonable probability. We don't. That drives the balance toward an inappropriate standard of balance of probabilities.

AG: we know that is not the standard. There isnt anything controversial in that.

AG then turns to legislative history

Before committee, Minister Beattie explained prior to amendment that added reasonable grounds to believe, when country threatned by dangerous situations the decision whether to invoke EA is necessarily a judgment call, depending on context and direction events may move in

Beattie: judgments need to be made about what may happen and what gov is capable of doing without exceptional powers and if it would be effective

AG: with luxury of time we can imagine how things could be different. Hindsight must be guarded against (Taylor) and decisions assessed in context.

AG: It isnt competing inputs that need to ground reasonable belief. Many inputs here, many meetings and briefing, info from all partners and departments. All feeding into this matrix and up to Cabinet who makes a judgment call

AG: faulting s 58 explanation for lacking some details, as CCLA said, misses the mark. It seeks to impose a standard higher than reasonable grounds to believe

AG now turns to the substantive argument for invocation. Says there were reasonable grounds to believe there was a threat to the security of canada

AG: first component was a threat for the purpose of a political or ideological purpose. Dont need to dwell on it, it was an attempt to change policy through violence. CFN said there was a desire to change policy, and we say it was through violence

AG: Commissioner Rouleau found there were threats to assassinate, there were weapons at Coutts and there were threats to the political system

AG: Reviewing record Rouleau found a connection between the protests, violence and an ideologically motivated goal. There is no reason for this court to depart
Mosley: Ill make my own finding

AG: there was a threat of serious violence. What does this mean? There has to be something more than a threat of minor violence. But it doesnt just mean death. The context of the EA and CSIS definition was permitted to protect Canadians from prospective harms short of lethality

AG: The legislative history of CSIS act makes it clear that the addition of "serious" was raised as one of several proposals. Another proposal was "criminal violence". Parliamentarians just wanted to exclude minor violence (like throwing tomatoes).

AG: the gov at the time didnt think that would be a concern for CSIS and didnt think the term "serious" was needed but accepted the addition of the word

AG: in this case there were cumulative threats of violence going all the way up to lethal violence

AG: The actual threats of violence against politicians and police were at blockades and the protests

AG: cutting off crucial supply laws could also lead to serious unrest and violence, and counter protests were also becoming a problem. Threats can also be against property. It must relate to purpose of EA, but blocking borders causes same harm as physical damage to infrastructure

AG: Shortages of food and medicine causes harm, and harm to our intnat'l reputation.

AG is addressing CCLA's concerns that standard of EA invocation should not include economic harm

AG: we have a uniquely vulnerable trade system bc of size of country. We have highly integrated economy with the US. And blockades of that system imperiled the safety and health of Canadians.

AG: we lost .1 or .2 percent of GPD each week the blockades continued

AG: Ambassador was $300m in trade per day.

AG: s 58 explanation links economic harm and safety to CSIS act definition as it contemplates property. It is tantamount to holding property hostage

AG: the idea that border blockades is a national security issue is not novel.

Gives an example of a Vancouver port blockade last year.

AG turns to threat to the security of Canada being met.

AG says will rely on modern approach to stat interpretation, considering context, intent and harmony

AG: purpose was to empower Cabinet in exceptional circumstances.

AG: this is about interpretation being a reasonable one and broad and open ended nature of the stat language

AG: Rouleau described this. "I also accept the definition in CSIS act includes broad open ended concepts. That leaves scope for reasonable people to disagree"

AG: that's important for understanding how CSIS found no threat and Cabinet's alternative view

AG: The Emergencies Act doesnt say CSIS gets to decide if EA is invoked. The act says Cabinet decides, and they rely on different inputs

AG: there is a range for interpretations of the langauge. And context and purpose matter. It cannot be interpreted just by reference to CSIS Act. The fact that Vigneault had a different conclusion does not make Cabinet's decision unreasonable

AG: the CSIS director agreed and affirmed support for EA invocation. He said in context of EA there was a separate interpretation based on confines of that act

EA: CSIS's view is not conclusive. And rouleau came to this conclusion as well in his report.

*AG

AG: Rouleau found that the acts are different and while CSIS's view is important it is not determinative. Its not the defienition that is different, it is the decision makers using different inputs.

AG: The intended meaning of violence can vary among statutes, and even within them. And that's the case here.

AG: CSIS is in business of gathering intelligence. And threat to security of Canada operates to let them gather intelligence. That's their context. For EA context, potential measures are very different

AG: different interpretations of the same provision can both be reasonable. Its not about one standard being higher or lower. CCLA says we are arguing for a lower standard. But that drives towards an standard of review of correctness.

AG: we dont have a correctness standrd, its a reasonable standard. And we say it was reasonable.

Ag: different decision makers can come to different reasonable decisions. That's accepted in Administrative law. Cites McLean [SIC?]

AG: Cabinet and CSIS had different inputs. Rouleau addressed this issue where he noted Coutts was "clearly a situation that could be reasonably viewed as meeting definition under s 2 of CSIS Act, but CSIS found it was not"

Mosley: Rouleau says "But CSIS has not identified it as such". He doesnt mean they weren't aware?
AG: Im not privy to the classified information
Mosley: is there anything in the record that says they knew?

Mosley: it is significant I think. What went into the CSIS assessment and how that went into the information available to Cabinet at the time.
AG: you're aware of CSIS assessments
Mosley: I've read thousands. I could recite some in my sleep. It's neither here nor there

AG: even if there are individual actors CSIS is looking at and thought may rise to the level, its not the same thing as threat to security of Canada for their act and under the EA

AG: I take your point but there is an apples and oranges element.

AG: there are different considerations at play
Mosley: I understand your textual argument. But Alberta says Coutts was resolved before EA invoked. Charette of PCO said, in her mind, it wasnt clear if it was resolved. Coutts was a significant factor.

AG: the problem with the argument that things were resolved is we have hindsight. Things wrapped up quickly, and people were arrested. No, there was still a large group staging at Milk River. There were still protests popping up all over Canada

AG: it is untenable when you put yourself in Cabinet's shoes to think things were resolved

AG: that takes me to the argument from the CCF about the request by Thomas for an "alternate threat assessment". There is no evidence to support that characterizatnion

AG: Clerk was asked about this at the #POEC.

Pulls up trasncripts

AG: Charette said PCO was a clearing house for different inputs.

AG: Charette was asked about Thomas' request for threat assessmnet. She says "idea was not to have another threat assessment. Idea was to collect everything in an integrated way from all departments. What they were seeing on the ground. Idea was having a lot of inputs"

AG: "idea was to have everything in writing. Not to develop a new assessment."

AG: given urgency of situation it shouldnt be surprising verbal inputs and briefings were being given to IRG and other senior gov officials. There is nothing unreasonable in Cabinet deciding to act without another written compilation, esp bc it wouldnt be something new

AG: so no basis for adverse inference. Its a mistaken assumption to say another threat assessment was going to be done.

AG now turns to Coutts which he says was front and centre in gov's analysis and that was entirely reasonable

AG: Coutts brought things to a new urgency and sense of emergency especially bc of presence of guns, body armour, ideologically extremist views. Concerns that if the Coutts operation wasn't peaceful it could spark gun violence elsewhere in Canada.

AG: This was a reaonable judgment call

AG: This grounded invocation memo's basis that elements of the movement intended to engage in violence. It had moved beyond peaceful protest. The groups were using encrypted communication.

AG: there was talk of overthrowing the government. Clerk said this couldnt be ignored.

Court now on a 15 minute morning break. AG will resume after.

We are back now at AG will argue it was reasonable for Cabinet to have reasonable grounds to believe an emergency existed

AG: the applicants are relying on hindsight. There was no certainty that Coutts was an isolated incident. Other protests continued to pop up, even after EA was invoked.

AG: there remained a threat that cleared locations to be taken again. Like Coutts and the Ambassador bridge. It was reasonable for Cabinet to consider these risks

AG pulls up Trudeau's evidence from #POEC

AG quotes Trudeau from POEC, saying people are engaging in hindsight. That Kenney said Coutts was getting under control, but that they'd heard that before. It wasnt enough to have a plan, it needed to also prevent a restaging elsewhere. There was no confidence we were on track

AG: the crisis canada was facing was national, couldnt be resolved locally, and involved elements of violence. This became apparent in record in this case. There was Diagalon symbols on body armour in Coutts and the group's founder was at protests in Ottawa.

AG: and there were weapons found at his house

AG: Cowling has said McKenzie was released after being charged but that isnt conclusive that there was a lack of serious violence

AG: In this context it was reasonable for Cabinet to conclude there was a reasonable risk of violence and the protests were not resolved

AG now turning to the last resort clause. Says it was reasonable to conclude the crisis could not be dealt with effectively under any other law of Canada. This requires a broad and general assessment.

AG: this is a reference to the corpus of federal law, which makes sense bc there is a separate reference to provincial law

AG points to French text of the statute and reads the French version. Says the last part would mean "adequately under the remine laws of Canada" (more or less)

Yesterday Alberta went through a comparison between the English and French versions of the EA and the AG is now responding to those arguments.

AG: Rouleau discussed in Report modifier "effectively". Saying its important. There may be situations where other fed laws could technically apply but fall short. Practical considerations matter, like adequacy of resources to address situation safely and in a timely way

AG: this is important regarding the CCFs argument regarding availability of injunctions and RCMP.

Says it is a new argument by us (it is not!!)

AG says we had a new argument about injunctions and RCMP's ability to enforce. Says making new arguments in a JR has been condemned. (FYI these are not new arguments)

Brings up same complaint about submissions yesterday by the individual applicants on international law. And applies to the CCF's arguments on minimal impairment which he says were not made before

AG says the problem with new arguments is that the AG has to respond on the fly. And a response has to be given without written arguments and must be done with counsel taking notes rapidly.

AG proposes that he will reply an on the fly rejoinder, what he has been able to piece together overnight.
Mosley: are you asking to reply in writing?
AG: we don't have a written argument to reply to. We took notes but it's not the same as having a fair opportunity to respond

Mosley: so are you asking for an opportunity to give a written reply?
AG: we are in your hands. Ill make some submissions now and you can tell us if you need more.
Mosley: its unlikely this case will turn on the Vienna conventions.

AG: the broader principle is we've been working on this for a year.
Mosley: im trying to think about a way to respond. I heard the argument on the RCMP by CCF

Sujit gets up. Quotes the paragraphs of our factum where RCMP argument made
AG: that doesnt include injunction
Sujit: cites paragraph

lolololololol

AG: ill look that up now because I didn't see it.

Mosley: rather than take time now review it over the lunch break and confer with CCF counsel. Maybe he can point where it is in the factum where these matters were raised.

Mosley: and get back to me after lunch
AG: I apologize if I misstated but there are other arguments made I hadn't read
Mosley: well I heard the international one. And I'm going to assume the RCMP could have been called on to enforce federal laws.

Mosley: this wasnt questionable and problematic. the RCMP used to enforce the traffic laws in Ottawa roads. Maybe its been contracted out but theyve always been here and always enforced. If they come across a crime in process they act on it. No doubt about it.

Mosley: they are peace officers. No doubt. The problem doesnt seem to have been if they had jurisdiction or if OPP did. This case isnt going to turn on these points.

AG: issue is a resourcing issue and police being overwhelmed. Problem wasnt getting injunctions. They were obtained. Honking injunction. But it was flouted
Mosley: the pertinent point is they were ignored.
AG: the issue was lack of compliance and police being overwhelmed

AG: the RCMP couldnt just flood the streets with officers. What ended up happening when the police did close down the Ottawa protest was officers came in from across Canada and were brought in quickly under EA. And they were deputized without formal long process.

Mosley: but that's not the first time that happened
AG: analogy to G20 where collaborative policing efforts were taken but those were months or even years in planning. Here it was an urgent crisis that arose very quickly.

AG apologizes to us and that it was in our factum

AG takes us to the s 58 explanation that we say was lip service on last resort clause. Says it ignores remainder of reasons in the explanation and the context.

AG: when you look at first page of s 58 explanation it is noted right up front regarding existing laws. And throughout body. Gives example of tow trucks.

AG: the financial measures were crucial to ending the convoy. The throttling and freezing of assets, which was ended as soon as the crisis was over.

AG: implicit in all of this was these measures could not be effective under ordinary laws.

AG: You put to the CCF that s 58 is not the end of the story, and that's exactly right. So it was reasonable for cabinet to believe the crisis could not be dealt with under any other law of Canada.

AG: when country is threatened by serious and dangerous situations cabinet must be able to act for safety of Canadians

AG refers to Beattie's comments about need for making judgment calls about direction things are moving and what gov is capable of without exceptional powers.

AG says different tools were used with different degrees of success but nothing could resolve the national crisis as a whole. Protests kept popping up. The tools of EA were highly effective and ended the situation quickly, in just over a week

AG describes the deterrent effect of the EA measures. Says the CCF says its a fatal problem no crim charges laid under the EA provisions. Says equally reasonable to say it was because the EA led to the end of the crisis quickly and without violence.

AG: we speak of deterrent effect not just in motivating protesters to leave, which had been a big challenge, but also in preventing them from reoccupying borders, restaging, and protesting more.

AG concludes on that point and the second AG lawyer (Coleman) will now make submissions. (I believe on the Charter)

Mosley: did any applicant raise requirement of ideological motivation?
AG: I dont think so. I think the issue was the linkage to serious violence.

AG: things like the MOU and changes in policy were politically and ideologically driven, if there is any dispute about that

Mosley: threat to security of Canada has not been judicially interpreted even though CSIS uses it daily. The similar phrase, national security, has had some judicial interpretation. Have you looked at that?
AG: we cite Suresh [SIC?]

AG: the wording and framework of war measures act, which was almost an executive fiat, is an antiquated approach not consistent with modern constitutional law. But the language of the EA must remain broad and opened ended enough to account for things we may not traditionally...

AG... think of as threats to security. You are well aware of the changing and evolving nature of threats. We need to be prepared for that. And parliament's language accounted for that

AG: things like the vancouver port blockade were in parliamentarians minds when the EA was enacted.

Next up is Coleman for the AG. I will refer to her as AG2 in these tweets.

AG2: I will be about 20 mins

AG2: I will respond to the Alberta submissions. We say they fail to establish anything unreasonable in invocation of EA.

AG2: 4 main points. 1. no basis for narrow approach to stat interpretation. 2. emergency exceeded prov capacity. 3. provincial consultation was in accordance with EA. 4. There was no impairment of prov ability to take own measures

Mosley: one comment i read in response to the argument on consultation was there had been prior work done, before the call to provinces?

AG2: that's right. there is a bullet listing in our material about engagements. They were not consultation but broader communications that began early in the protests and leading up to the consultation. It didnt come to a surprise to anyone by the 14th the PM wanted to talk EA

AG2: those earlier calls were not a consultation, but they are an important factor

AG2: a failure to agree doesnt mean consultation was not done or was unreasonable

now on 1 hour lunch break

I raced to get a salad in the insane #onStorm happening here. Fighting ice in my sneakers. Now back in court listening to some pretty ominous thunder, waiting for Justice Mosley to enter momentarily.

Justice Mosley is back, and AG(1) is back at the podium. He has one comment regarding CSIS and the threat

This is about CSIS's knowledge of Coutts. Pulls up CCLA's application record.

Ms Tessier (deputy CSIS director) said at POEC that the arrests at Coutts did not mean there was a threat to security of Canada under CSIS Act. So CSIS was aware of what had happened at Coutts

That had come up earlier, before lunch. Mosley asks if that CSIS assessment had a date. AG says no.

Mosley: there is nothing in record about when CSIS completed assessment?
Sujit for CCF stands with an answer

Sujit: the quote from POEC seems to answer. Fairest interpretation of her quote was that it was a contemporaneous assessment at time of arrests at Coutts.
Mosley: that's helpful, thank you.

AG: my qualifier would be there was no formal assessment we know of.

Now Rupar for AG is back. I'll be referring to him as AG3. He will address s. 2 and 7 of the Charter.

AG3: What I intend to do is take you to the case law and apply it to the activities and regulations at issue

AG3: the prohibitions were narrowly tailored to address specific harms. Peaceful assembly was not restricted and that's clear from the language.

AG3: and violent activities are excluded from protection anyway

Now AG3 is taking us through some caselaw.

AG3 citing cases like Keegstra for proposition that physical violence is an exception to 2(b).

AG3 now pulling up the regs, which prohibit assemblies that could reasonably lead to the breach of the peace. So he says if there is no breach of the peace, you're fine. He says that's very specific and narrow.

AG3: problem is you must not participate. Not that you can't support. You can be involved by your location but if it's not a peaceful assembly, the fact that you may want to be peaceful is irrelevant. Because you're engulfed by non-peaceful elements

AG3: no violence was protected. peaceful assembly and holding up a sign, if you want to do that all you have to do is step outside the designated area. It was a very specific prohibition.

AG3: with respect to 2c there can't be coercion. And we saw that across the country. There was intimidation. That isnt a constitutionally protected assembly.

AG3 turns to 2(d) freedom of association. "We have to be clear about what is protected. The associational aspects of the activity are protected, not the activity itself. If you engage in an activity contrary to public order that activity is not protected"

AG3: so you can meet in downtown Ottawa, but not in situations of serious violence or contrary to law

AG3 then pulls up some case law to support these propositions

AG3: the difficulty here was the line b/w the right to associate but not to go beyond that, to activities contrary to law.

AG3: that's the distinction that the emergency measures get at.

AG3 then wants to go through some case law on s. 7 then turn to overbreadth

With this case law in mind, AG3 says lets look at the purpose of the EA and the regs, starting with the EA's preamble

AG3 reads the full title of the act, emphasizing "temporary" as part of the title.

AG3 then reads preamble with emphasis on individual, the need to ensure safety, supervision of Parliament, and temporary measures.

AG3: Parliament is telling us they are anticipating unprecedented times. In those times, here is what to do. Protect safety of individuals, sovereignty and integrity of state and TEMPORARILY use powers

...of EA

AG3: with all that in mind thats what we have in the regulations prohibiting assemblies. It's geared towards what the preamble identifies.

AG3 says these measures are specific and limited and the objective of what the measures or aimed at are not overly broad.

Cites Moriarty. It is the link between objective and intent.

AG3: want to respond to comments yesterday about Heywood. Problem is it doesnt apply b/c what happened there was court said things were applied so broadly the objective couldnt be met. That wasn't so here.

That wraps up AG3. Now another AG lawyer (AG4) will be up to discuss Charter s 8 search and seizure rights.

AG4: 2 parts of submissions. 1. issue of seizure, and none occurred here. 2. any conduct that constituted a search complied with Charter obligations.

AG4: i want to start with a general point. Applicants are assuming s 8 constitutionalizes property and that isn't right (cites La Roche)

AG4: s 8 does not give constitutional protection on property rights. The prohibition on unreasonable search and seizure protects privacy, not property. So it doesnt apply to gov action just bc the action interferes with property rights

AG4: this undermines argument that the temporary freezing of assests under the measures violated s 8 charter rights

AG4: and in any event, the order didnt authorize seizures and none occurred.

AG4: the s 58 explanation confirms the purpose of the financial measures was to authorize financial services providers was to freeze accounts of individuals participating in blockades, to bring the emergency to an end.

AG4: there is no evidence any funds were taken or retained. There are only 2 applicants before this court who had their funds frozen. It was for 5 and 4 days. Both confirmed their funds were unfrozen shortly after they stopped participating in the prohibited activities.

AG4: After these applicants left the situation in Ottawa, their accounts were unfrozen.

AG4: there was a continuing obligation on financial institutions. But once these applicants left their accounts were unfrozen

AG4 now turns to search (as opposed to seizure).

Cites Tessling [SIC?] for test on what constitutes a search. Has to do with reasonable expectation of privacy

requirement for reasonable search: 1. authorized by law. 2. law is reasonable. 3. search done in a reasonable way

AG4 focusing on question of whether the law was reasonable, here the financial measures. He says thats the main point of contention, and he says it was reasonable

AG4: the purpose of the disclosure requirement was ensure the effectiveness of the emergency measures and share information to help banks ensure compliance with the order.

AG4: given ability to move money in Canada it is essential all financial service providers are to be subject to the order

AG4: the provisions of the financial measures must be understood in light of its purpose, which was to bring the public order emergency to an end. The information sharing provisions existed to further those objectives.

AG4: there is no evidence the information disclosed under them were used for any other purpose and to say otherwise is speculative. Yes they could have been used to prove other offences, but there is no evidence that happened.

AG4: information sharing was used to disperse crowds

AG4 cites Jarvis: mere ability of penal consequences is not sufficient to establish a criminal purpose.

AG4: key message is that context matters. The context in which the EA is being applied is vital. Its not about putting a criminal or administrative law label on it. The consequences are relevant but not determinative.

AG4: SCC has confirmed when assessing whether a search was reasonable, context matters. Cites Rogers [sic?]

AG4: in this case any impact the financial measures had on privacy was proportionate to the objective of responding to a public order emergency. The information disclosed was limited to amount of assets, it didnt involve intimate details as the CCF has suggested.

AG4: searching bank accounts isn't comparable to things like blood draws or taking DNA samples. In those scenarios, we are dealing with measures going to core of identity.

AG4: disclosing information for the purposes of cutting off funding and ending illegal occupations doesnt compare

AG4: Outside the criminal law context the standards imposed by s 8 are more flexible. Cites some SCC decisions confirming the requirements of Hunter v Southam must be applied flexibly (Goodwin)

AG4: prior authorization may not be reasonable in every instance (hunter)

AG4: it isnt feasible to expect in the middle of the Convoy circumstances, where objective was to clear blockades, to obtain prior authorization for every person found to be engaging in prohibited activities.

AG4: so the standard in Hunter v Southam is inapplicable in the circumstances here

Mosley: if a funding entity were to defy the financial measures would the operating mind of that corporation be subject to penal consequences?
AG4: they would have been subject to the freezing order, in theory, but that didnt occur
Mosley: is it a possibility on face of law?

AG4: on the face of the law it is a reasonable hypothesis. But there is no evidence that occured
Mosley: I understand that. By same token. The applicant in this case who got donations after the EA was invoked... She is caught by the terms here. Is she subject to prosecution?

AG4: it is hypothetically possible. But there is nothing to suggest that applicant had any interaction with police or that she was impacted by these orders or any funding entity was subject. There is evidence smaller funding entities didnt have their funds frozen

Gives example of testimony from Beaudoin at #POEC who said donors through give send go didnt have accounts frozen

Mosley: But wouldnt it have been possible to pursue those entities?
AG4: She meets definition of designated person but there is no evidence of action taken against her.

AG4 then resumes argument on the freezing of accounts and financial measures as they related to s8

AG4: looking at purpose of legislation, when we are looking if someone is liable for prosecution, it is in that context of ending the blockades. When the blockades no longer exist the risk of prosecution diminishes considerably

Mosley: I did criminal law for many years. I have a lot of trouble this is not some form of seizure. It looks like a duck to me. Youre holding onto the contents of someone's bank account. They can't access their credit on their credit cards

Mosley: I'm going to have to read your authorities very carefully. This isnt for investigative purposes or an administrative seizure. The idea its not a s 8 seizure is difficult to grasp

AG4: to say there is no recourse for the people with frozen accounts, all they had to do was go somewhere else and the evidence shows the funds were released

Mosley: I know, the remedy is in their hands.

AG4 moves on to the Bill of Rights arguments

AG4: what the applicants CFN and the individual Nadle are challening is the fairness of a hypothetical scenario. They could have been treated fairly if their accounts were frozen, but they cant. The fairness of laws can't be challenged in the abstract (Green v Manitoba sic)

AG4: additionally Nagle and CFN were given procedural fairness. The content of that is flexible and context specific

AG4 pulls up a notice to demonstrators by Ottawa Police, advising those involved in the blockades that they could be arrested and charged with criminal offences. It talks about having vehicles and property seized and removed.

Next page of the notice says "you must leave the area now. Anyone blocking streets or assisting blocking streets... may be arrested"

AG4: Ms Nagle knew what the economic order did. She was advised of what would occur if they violated those provisions and what procedural protections would be in place re. prosecution of offences.

AG4: they knew the case to meet, and what to do to avoid having their accounts frozen. And they didnt have their accounts frozen. There was no lack of procedural fairness and its not helpful to engage in hypotheticals.

AG4: the bill of rights is also not the Charter

AG4: The regulations can be construed in a way that respect her bill of rights property rights, and that ends it. There is no concern here that the regs cant be construed in accordance with the bill of rights. they can be.

AG4: freedoms cannot be an absolute

AG4: Bill of rights doesnt declare unlimited rights. It codifies rights as they were understood in 1960

AG4: they are inherently limited by the time period from which they emanated.

AG4 wrapped up on Bill of Rights, s 8 and the financial measures.

AG1 back up now. To deal with s 1 of the Charter.

AG1: Charter rights are not absolute and can be limited where necessary where they conflict with achieving public goals

AG1: the focus of the applicants has been minimal impairment

AG1: measures under EA were carefully tailored to limit impact on Charter rights, and proportionate to the circumstances.

AG1: Given the urgent security threat and need for swift unified action, the objective of ending the blockades was pressing and substantial

AG1: Measures addressed threats of serious violence and reasonable apprehension of harm. It only targeted assemblies reasonable to lead to those harms.

AG1: there were also specific excemptions and exceptions.

AG1 turns to proportionality and rational connection. The cornerstone, he says is the assembly prohibition.

This was a direct targetting of the manifestation of the emergency and were designed to bring it to an end.

Another objective involved removing children from the blockades, shrinking the blockade footprint, and deterrence.

The economic order discouraged people from joining and encouraged participants to leave. And participants were given advance notice.

AG1: on minimal impairment the question is if the limit on the right is narrowly tailored to achieving the objective.

AG1: Cabinet should be given deference in how they dealt with a complex measure. The test on min impairment is met when the measure chosen is one of several reasonable options. It doesn't need to be perfect.

AG1: that's the problem with the alternatives the applicants presented. It doesn't appreciate the purpose of the measures.

AG1: the applicants other suggestions redefine the objective to separating out the protesters one by one to determine who is peaceful and who is disruptive. That wasn't possible.

AG1: minimally impairing measures need to achieve the pressing and substantial prupose, not something less. Here we needed to clear people out.

AG1: the applicants ignore that people could still continue to protest, just somewhere else.

AG1: Rouleau commented on this in his report. He said the tailoring made a difference and protesting continued elsewhere, including in Milk River in Alberta and at the Canadian War Museum in Ottawa.

AG1: that's hardly a sledge hammer.

AG1: The government also couldnt know which measures would work and which wouldn't. The applicants suggest the gov needed to pick just one tool. But the gov needed a range of options and tools

AG1: a suite of measures, that were tailored, was needed. To tackle the problem from different angles.

AG1: the EA measures were also minimally impairing in terms of time. Nine days. That was the shortest amount of time to manage the emergency.

AG1: There was also no lasting effect on designated persons under the financial measures. No evidence of that.

AG1: it was necessary for measures to apply nation wide. That is bc convoy participants came from across Canada, and so did their public support. So the entire financial system in Canada needed to be subject to the same rules

AG1: and we know protests popped up all over Canada and it was impossible to know where the next might arise.

AG1: there were no less drastic means to end the emergency

AG1: the measures were also proportionate. The collective benefit of ending the protests and blockades outweighed any harm

AG1: It was unavoidable that joint account holders were effected

AG1: if someone believed their account was frozen in error they could call their bank

AG1: altogether the cabinet went to significant lengths to tailor the measures. They didnt prohibit all measures. Just ones reasonably likely to breach the peace. There were other ample means of protesting without blockading or occupying public spaces

AG1: to conclude, any breach of rights was justified by s 1

Mosley had no questions for AG1. Now we are taking an afternoon break.

Mosley tells lawyer for CFN that if he is planning on replying, he ought not to grandstand. Which is what he said was done in their opening. CFN second chair will be making the reply and he will be making legal arguments

Now on the afternoon break. When we come back we will be doing replies. I will be heading to the airport to hopefully catch my flight home. Replies are generally to make a series of bullet points so I won't be live tweeting. Thanks to all for following today!

If you'd like to watch the last hour and half of the hearing, which will be the replies, it will be available on zoom. Register here: cas-satj.zoom.us/webinar/regist…

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