Civil Society Wins

January 27, 2024

HERE'S MY TAKE

This week’s federal court decision declaring the federal government’s 2022 invocation of the Emergencies Act (EA) to be illegal is a big deal.

Governments have only used this law (counting its predecessor the War Measures Act) four times in Canadian history: during both the First and Second World Wars, during the 1970 October Crisis, and in response to the 2022 Ottawa convoy protest. Suspending constitutional liberties is supposed to be rare and subject to a high standard of review for any country that claims to be a constitutional democracy. In June 2022, a Parliamentary Committee made 15 recommendations regarding this use. In February 2023, Commissioner Rouleau issued his five-volume public inquiry report in which he concluded that although the government’s decision to invoke the Act was appropriate, it was a close call and “reasonable and informed people” could reach a different conclusion. This week, Justice Mosley did reach a different conclusion. His decision isn’t just political opinion; it is a precedent-setting legal ruling.

It’s important to be clear on what this decision means. As the Globe and Mail editorialised, “the federal government acted outside of its constitutional powers” as it “did not have reasonable grounds to believe there was a threat to Canada’s security.” The judge makes clear that he found the convoy problem to be serious. In fact, he concedes that “at the outset of these proceedings” he “was leaning to the view that the decision to invoke the EA was reasonable.” (par 370). But suspending constitutional rights has–and should have–a high bar and once the legal definitions were parsed and the politics and emotion set aside, it was clear to the judge that the government’s invocation was illegal and unwarranted. Justice Mosley did note (par 281) that there were compelling arguments for invoking the Act, but the way to do so would be for Parliament to change the law. Executive and judicial branches of government are restrained by what the laws actually say, not just what they wish they said. So Hon. Justice Mosley’s decision is now the law of the land although the government announced almost immediately that it would ask for an appeal.

While legal geeks and wannabes (yes, I did read the entire 190-page decision) parse and debate the legal details (the online and media debate hasn’t yet reached the 11,000 pages of evidence submitted in the case itself) the implications are more political than legal. This decision will constrain how any future government tries to use the Emergencies Act. It will possibly provide some redress for the approximately 280 people who had their bank accounts frozen in 2022. Columnists were quick to pronounce this as problematic for the federal Liberals–“a millstone around their necks” is how Campbell Clark described it–even as the justice minister argued the matter remained muddy. After all, at least according to Liberal talking points, the Commission said it was ok. So now a federal judge disagrees. It just makes the score 1-1 in an esoteric disagreement between two judges. (The argument conveniently disregards that one judge’s decision has the force of law while the other doesn’t.) How this will impact the political preferences of Canadians remains to be seen, but it is hard to imagine how it can be helpful to the Liberals. 

What I found fascinating about the decision was the fact that Justice Mosley admitted that it was the evidence and submissions of public interest litigants that proved decisive. “This case may not have turned out the way it has without their involvement, as the private interest litigants were not as capable of marshalling the evidence and argument in support of their applications,” he wrote. (par. 371)

The weight of that conclusion deserves reflection. The decision actually covers four cases that were heard together. Kristen Nagle is a nurse whose registration was suspended during COVID. She joined the convoy protests and argued that the Emergencies Act imposition violated her rights and diminished unfairly the donations to the Canadian Frontline Nurses (which she was involved in with other like-minded nurses). Four individuals, two of whom had their bank accounts frozen, were represented by the Justice Centre for Constitutional Freedoms and challenged the constitutionality of the Act. The Canadian Constitution Foundation and the Canadian Civil Liberties Association each filed its own application for judicial review simply on public interest grounds. I’ve linked the statements of each following this week’s decision taking credit for their part of the victory.

(Full Disclosure: When the Emergencies Act was invoked, I along with some other Cardus colleagues were contacted by various of our stakeholders and donors saying “you need to do something about this.” While Cardus had no role in the case, we're glad that some patrons were able to support it and enable the case to go forward.)

Three important points emerge from this decision regarding the important role of civil society organisations.

First, this case involves a clash of perspectives on how the various branches of government relate to each other. This is a case of the judicial branch of government being asked to declare that the executive branch of government overstepped its bounds. It is the responsibility of the judicial branch (whose job among other things is to ensure that the other branches of government act in accordance with the constitution) to define the boundaries necessary for the protection of freedom. It is noteworthy that this judge (and he’s not alone, but he is rare) stuck to the text of the legislation as the basis for his decision. He was quite clear on a few occasions that he could appreciate the arguments the government raised for why it wished to use the Emergencies Act and how it might be helpful in its acknowledged crisis, but both the judicial branch and the executive branch are constrained by what the legislative branch has actually decided. It sounds like Civics 101 as most of us learned it in high school, but the debate that has followed this week points out how rare it is to have this important discussion. By the judge’s own admission, it took an outside perspective of civil society organizations to make clear to the court what all of the government insiders were missing or muddying.

Second, the judgement’s fine print acknowledges that civil society interventions are not all created equal. Of the four interventions, Justice Mosley went out of his way to acknowledge the great help of two intervenors, while at different places, dismissing particular arguments of the others. (Three of the five individuals whose claims were being represented were deemed not to have valid standing.) One of the two individuals who was granted standing was found to have “made exaggerated and misleading statements in his evidence about the effect of the invocation of the Act.” (p. 177). The federal government was the target of a similar critique in the decision for “actively resisting” the disclosure of relevant evidence (p 147). Some of this is part of the to-and-fro that takes place in legal proceedings. Lawyers make arguments they think might be helpful, recognizing that some of them are more tenuous than others. Justice Mosley commended one of the intervenors who “chose not to make most of the substantive arguments set out in their Memorandum of Fact and Law” which was “to their credit as much of the content of the Memorandum was irrelevant in [the judge’s] view.” (p. 214). As much as the decision is a victory and celebration of the positive contribution of civil society organisations, it is also a warning that ill-advised interventions can do legal harm alongside the potential good.

Third, this case is a reminder of the importance of civil society institutions. Cardus was formed supporting principles like subsidiarity and sphere sovereignty–that affirm the need for constraints on government power, and that other institutions (including family, church, community organisations, businesses etc.) can do some things better. Freedom requires intermediary institutions. This week’s decision was a victory marker and a reminder that a free society requires and benefits from vibrant organisations willing to make sacrifices. Court proceedings are expensive. Each of the organisations spent tens, or more likely, hundreds of thousands of dollars without which this result would not have happened. By definition, civil society organisations don’t have taxing power. They get their resources from the free choices of their supporters who believe they are doing worthy work. Even as we celebrate and congratulate the good work of organisations who were formally acknowledged by the court (and we would applaud the Globe and Mail and other media for drawing public attention to this), we observe that exercising freedom, in this case through donations to civil society institutions doing vital work, is required for important freedoms to be protected in our day and for the future.

WHAT I’M READING

Canada’s Identity Up for Grabs?

For the past two weeks, my editorials have named Canadian identity issues as the root of many current conflicts. Former CBC journalist, now Substack, Tara Henley picked up on this theme last Saturday in The Hub, describing an “identitarian moralism” as a new subtext in Canadian politics. In a similar vein, Jen Gerson at The Line approached the same immigration subject as last Saturday’s Insights. She suggested that the “need to articulate a Canadian identity and set of values that restores a sense of civic dignity without allowing that message to be hijacked by a crude and racist nativism” will be the ultimate moral test of Mr. Poilievre’s leadership.

Religious Nationalism

We are used to “separation of church and state” debates in North America, usually referencing different understandings of secularism and how religion is viewed in the public square. A very different version of the debate is currently playing out in India where Prime Minister Modi, a devout Hindu, led a religious ceremony last week opening a new Hindu temple built above the ruins of a former mosque. Most of the opposition leaders boycotted the ceremony arguing it was inappropriate for the secular state to get involved, while the prime minister also offended some Hindus by performing roles that reportedly should only be carried out by priests.

Highs and Lows

With a hat tip to this week’s Economist which got me watching the daily results of some stock market closings I don't usually notice, it was interesting to observe that the Chinese stock market hit a five-year low in the same week the NASDAQ hit a record high. I’m a long way from daring to publicly suggest what this might mean and why, but my spidey senses do suggest that this is more consequential than its limited media coverage suggests.

Not Gouda

The rift between the UK and Canada’s trade negotiators that saw Britian’s team walking from the table seems to have something to do with Canada’s supply management regime for dairy. In this case, Canada’s unwillingness to remove tarrifs from more British cheese imports looks like the sticking point. Britain receives 2.7% of Canada’s exports (and Canada is 18th on Britain’s list of trading partners) so it’s not overly significant in economic terms, but there are symbolic and historic elements that make this matter more than just the price of cheese.

MEANINGFUL METRICS

Splitting Directions

Two interesting polls this week provide some insight on where the electorate is at during what I do not expect to be an election year in Canada. The lobby firm Meredith-Boessenkool marked its first anniversary by commissioning a poll on whether Canadians think the country is on the right track. Respondents were asked for the top three issues that signal why Canada is heading in the wrong direction. It’s very clear that affordability questions are on top of the list by a significant margin, followed by healthcare and immigration. The regional variances, however, are equally interesting within the overall results, with Quebec and Alberta having the most outliers from the national numbers.

An Angus Reid poll focused on voter motivation, reporting that 30% of the decided vote divided equally between the Liberals and the Conservatives, but that each bloc is motivated by the desire simply to block the opposing party. The implications of this trend are very significant for the NDP, which in turn are very significant for the math of vote splits. In our first-past-the-post electoral system, these splits result in seat counts quite different from popular votes. In each of the past two elections the Conservatives won the popular vote but lost the seat count.

TAKE IT TO-GO

When Fahrenheit Meets Celsius

Ottawa is melting this weekend. But it was cold enough last week across the country to remind the shivering that with temperatures below -40 degrees, Celsius and Fahrenheit actually do meet. So let’s poke a bit of fun at our quivering and close with a flurry of weather word-plays (although they aren’t likely to bring tears to your ice.) Actually, that’s a good thing. The rules regarding the opening of Ottawa’s Rideau Canal Skateway kept it closed last year for the first time in history. I live just a few blocks from this UNESCO world heritage treasure. As I watch the smiling skaters, I want to avoid any excuse for it to suddenly close again. Of course, when we can’t skate, we’ve more time at home to refresh our memories on polar vortices and listen to the polar plunge swimmers describe the cold with many different words, none of which really captures the experience of -40 when even polar bears can’t take the plunge.  

I am within a skate blade of misleading, so let me clarify. I don’t skate myself. I’m not an outdoorsman. But I am Canadian and I do enjoy a season of real winter weather, at least to a certain degree. When you live in Ontario, Canada, the cold motivates you to book necessary California business travel for February. But that’s to look forward to. This week I’m bundled in Ottawa, wearing parkas and toques along with our returning Parliamentarians. Ottawa will probably emit enough hot air to bring us back to scaling our winter weather explanations according to the competing tunes of Daniel Fahrenheit and Anders Celsius.  

I hope it’s a winterful week for all of us. After our customary, temporary pause, let’s meet again in your inbox next Saturday.