CANADIAN FRONTLINE NURSES v. KRISTEN NAGLE, 2024 FC 42

Date: 20240129 Dockets: T-306-22 T-316-22 T-347-22 T-382-22 Citation: 2024 FC 42 Ottawa, Ontario, January 29, 2024 PRESENT: The Honourable Mr.

Justice Mosley Docket: T-306-22 BETWEEN: CANADIAN FRONTLINE NURSES and KRISTEN NAGLE Applicants and THE ATTORNEY GENERAL OF CANADA Respondent Docket: T-316-22 AND BETWEEN: CANADIAN CIVIL LIBERTIES ASSOCIATION Applicant and ATTORNEY GENERAL OF CANADA Respondent Docket: T-347-22 AND BETWEEN: CANADIAN CONSTITUTION FOUNDATION Applicant and THE ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ALBERTA Intervener Docket: T-382-22 AND BETWEEN: JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU Applicants and GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents AMENDED REASONS FOR JUDGMENT TABLE OF CONTENTS I.

Introduction 5 II. Overview 5 III. The Parties 7 A. The Applicants 7

(1) Kristen Nagle and Canadian Frontline Nurses 7

(2) The Jost Applicants 9

(3) Canadian Civil Liberties Association 10

(4) Canadian Constitution Foundation 10 B. The Respondent (moving party on the Motions to Strike) 11 C. The Intervener 12 IV. The Context 12

(1) Public Health Orders 13

(2) Protests in Ottawa and border blockades 13

(

a) Ottawa 13 (

b) Border blockades 17

(3) Invocation of the Emergencies Act 19 V. Decision under review 22 A. The Proclamation 22 B. Reasons for the decision 24 C. Procedural history 25 VI. Evidence 29

(1) Nagle/CFN 29

(2) CCLA 30

(3) CCF 31

(4) Jost Applicants 31

(5) Respondent 32 VII. Legal Framework 34 VIII. Issues 35 A. Preliminary issues 35 B. Substantive issues 36 IX. Argument and Analysis 41 A. Preliminary issues 41

(1) Test for a motion to strike 41

(2) Test for mootness 42

(3) The Respondent’s position 43

(4) Positions of the Applicants 44 (

a) Analysis 45 (

i) Presence of an adversarial context 45 (ii) Judicial Economy 48 (iii) Court’s sensitivity to its role relative to that of the legislative branch of government. 51

(5) Conclusion on mootness 53

(6) Test for standing 54 (

a) Respondent’s position 55 (

b) Applicants’ positions 57 (

i) Nagle/CFN 57 (ii) Jost and Ristau 58 (iii) CCLA and CCF 59 (

c) Conclusion on standing 59 B. Substantive issues 65

(1) Standard of Review 65

(2) Was the decision to issue the Proclamation unreasonable and ultra vires the Act? 72 (

a) The Court draws no adverse inference from the privilege claims. 73 (

b) Was there a national emergency? 74 (

i) Argument 75 (ii) Analysis and conclusion on whether there was a national emergency. 81

(

c) Was the “threats to the security of Canada” threshold met? 87 (

d) Was there evidence of threats or use of acts of serious violence? 90 (

i) Argument 90 (ii) Analysis and conclusion on whether the threshold was met. 94 C. Did the powers created by the Economic Order and Regulations violate sections 2(b)(c)(d), 7 or 8 of the Charter, and, if so, can they be saved under

section 1? 101 (

a) Section 2 102 (

i) Freedom of thought, belief, opinion and expression. 103 (ii) Freedom of peaceful assembly. 105 (iii) Freedom of Association 106 (

b) Section 7 107 (

c) Section 8 109 (

d) Section 1 115 (

i) Conclusion on

section 1 justification 118 D. Did the Regulations and Economic Order violate the Canadian Bill of Rights? 120 X. Conclusion 123

(1) Remedies 125

(2) Costs 125 ANNEX A /

ANNEXE A 127 ANNEX B 155 I. Introduction [ 1 ] These are reasons for judgment in four applications for judicial review under sections 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 [ Federal Courts Act ], of the decision by the Governor in Council (GIC) to declare a Public Order Emergency (POE) and to approve additional measures in order to end disruptive protests in Ottawa and other locations in Canada. [ 2 ] As the outcome of the four applications varies in certain respects, separate judgments, will be issued for each application.

The following reasons apply to the common elements and explain the different outcomes. II. Overview [ 3 ] The Applicants in the four applications before the Court challenge Order in Council P.C. 2022-106, the Proclamation Declaring a Public Order Emergency , SOR/2022-20 [the Proclamation ] issued pursuant to s 17(1) of the Emergencies Act , RSC 1985, c 22 (4th Supp ) on February 14, 2022 [the " “ Emergencies Act ” " , the " “ EA ” " or the " “ Act ” " ].

Also under review are Order in Council P.C. 2022-107, the Emergency Measures Regulations , SOR/2022-21 [the " “ Regulations ” " ] and Order in Council P.C. 2022-108, the Emergency Economic Measures Order , SOR/2022-22 , [the " “ Economic Order ” " ] made on February 15, 2022 pursuant to s 19(1) of the Act . [ 4 ] The Attorney General of Alberta responded to a notice of constitutional question in one of the applications and also sought and obtained leave to intervene to make submissions on several non-constitutional questions. [ 5 ] The Attorney General of Canada brought motions to strike the applications on the grounds that they were moot and that most of the Applicants lacked standing. [ 6 ] As these reasons will explain, I have determined that the Applicants, Kristen Nagle, Canadian Frontline Nurses, Jeremiah Jost and Harold Ristau, lack standing to challenge the Proclamation , the Regulations and the Economic Order.

Their applications will be dismissed for that reason. I accept that Edward Cornell and Vincent Gircys have direct standing to challenge the Proclamation , Regulations and Economic Order as they were directly affected by them. I grant the Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) public interest standing.

I have concluded that the applications of those with standing should be heard notwithstanding that the applications are moot as a result of the revocation of the Proclamation and termination of the related instruments. [ 7 ] On the substantive issues, I have concluded that the applications of Edward Cornell and Vincent Gircys, the CCLA and the CCF must be granted in part for reasons discussed below.

In brief, I find that the reasons provided for the decision to declare a public order emergency do not satisfy the requirements of the Emergencies Act and that certain of the temporary measures adopted to deal with the protests infringed provisions of the Canadian Charter of Rights and Freedoms –

Part I of the Constitution Act, 1982 adopted as

Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) [ Charter ] and were not justified under

section 1 of the Charter . [ 8 ] I find that the temporary measures were not incompatible with the Canadian Bill of Rights, SC 1960, c 44 [ Canadian Bill of Rights ] as had been argued by Messrs. Jost, Ristau, Cornell and Gircys, collectively the Jost Applicants.

III. The Parties A. The Applicants [ 9 ] The first two of the four Applications for Judicial Review were filed in the Federal Court by Ms. Kristen Nagle and Canadian Frontline Nurses [CFN] and by the Canadian Civil Liberties Association [CCLA], on February 17 and 18, 2022 respectively. The other two Applications were filed on February 22 and 23, 2022 by the Canadian Constitutional Foundation [CCF] and by the Jost Applicants.

(1) Kristen Nagle and Canadian Frontline Nurses [ 10 ] Kristen Nagle is a Canadian citizen and Ontario resident. Ms. Nagle is a former registered nurse and is a member and director of the CFN. Her registration was suspended by the Ontario College of Nurses due to complaints about her actions at other protests including at hospitals applying vaccine mandates and treating patients suffering from COVID-19 during the pandemic. [ 11 ] The CFN is incorporated under the Canada Not-for-profit Corporations Act , SC 2009, c 23 .

CFN’s materials describe it as a " “proud advocate of medical freedom” " and that its missions are " “to unite nurses across Canada, educate the public and ensure that Canadian healthcare reflects the highest ethical standards.” " Arguments made on behalf of the CFN in these proceedings are the same as those made by Ms. Nagle. It is clear that she is the directing mind and will of the organization. [ 12 ] Ms.

Nagle and, through her, CFN, claim to be " “opposed to unreasonable COVID-19 related mandates and restrictions that have been implemented by various levels of Canadian governments” " during the pandemic. [ 13 ] In their application, Nagle and CFN assert direct standing based on their participation in the " “Freedom Convoy 2022” " . It is unclear from the evidence how CFN participated other than through the person of Ms. Nagle.

There is no evidence that any of the assertions made on behalf of the CFN in these proceedings result from resolutions of the membership or board of the organization or are anything other than expressions of Ms. Nagle’s personal views. [ 14 ] Ms. Nagle arrived in Ottawa on January 28, 2022 and took up residence in a hotel near the protest sites with her husband and children. Ms. Nagle claims that she provided material support to other participants during the protests, such as the distribution of funds donated to the CFN and by providing access to her hotel room for showers.

She claims that she was described as a major participant in the protest by a Member of Parliament but there is no supporting evidence of this. The CFN logo does appear among others on " “Freedom Convoy 2022” " promotional materials. [ 15 ] Neither Ms. Nagle nor the CFN were identified by the Royal Canadian Mounted Police (RCMP) to financial service providers as an individual or entity to whom the Regulations and the Economic Order applied. Their bank accounts and other resources were not frozen. However, Ms.

Nagle averred that donations to the CFN diminished as a result of the Proclamation and imposition of the Regulations and the Economic Order. As a result, she and her family chose to leave Ottawa.

(2) The Jost Applicants [ 16 ] The four Jost Applicants are private Canadian citizens who assert direct standing based on their participation in the Ottawa protest. [ 17 ] Jeremiah Jost participated in the protests around Parliament Hill from January 29, 2022. He asserts he also financially supported other protest participants in Ottawa. [ 18 ] Edward Cornell is a Canadian military veteran who also participated in the Ottawa protests. His bank account and credit cards were frozen following the Proclamation and making of the Economic Order . [ 19 ] Vincent Gircys is a retired police officer.

He participated in the Ottawa protest and his bank account and credit cards were also frozen following the invocation of the Act . [ 20 ] Harold Ristau is a pastor and Canadian military veteran who briefly attended the protests in Ottawa and led participants in prayer, issuing a benediction and praying at the War Memorial. He claims that following his return home he experienced discrimination in his work place and other ill effects due to his participation in the protests, which limited his ability to enjoy his freedom of religion.

(3) Canadian Civil Liberties Association [ 21 ] Founded in 1974, CCLA describes itself as an independent, non-profit, non-governmental organization dedicated to defending and promoting fundamental human rights and civil liberties. The CCLA brought its application on the basis of public interest standing. [ 22 ] CCLA asserts it has been holding governments accountable since its inception by ensuring human rights and freedoms are fostered and observed and that the rule of law is upheld.

CCLA claims to advocate on behalf of all people in Canada to ensure the maintenance of the critical balance between civil liberties and competing public and private interests. CCLA has been granted leave to intervene in cases before courts at many levels and asserts that it has contributed to the development of jurisprudence in respect of civil liberties and the application of the Charter .

(4) Canadian Constitution Foundation [ 23 ] Founded in 2002, the CCF describes itself as an independent, national and non-partisan charity that seeks to protect constitutional freedoms through education, communication and litigation. It also brought its application on the basis of public interest standing. [ 24 ] The CCF has appeared before all levels of courts in Canada and submits that it has contributed to the development of constitutional law jurisprudence.

It has been granted intervener status by the Supreme Court of Canada in 13 cases. [ 25 ] The Respondent did not dispute that the CCLA and the CCF had a valid public interest in these proceedings but argued that their participation was not required as at least two of the Jost Applicants had direct standing.

B. The Respondent (moving party on the Motions to Strike) [ 26 ] The Attorney General of Canada is named as the sole Respondent in three of the four applications. In the fourth application, in Docket: T-382- 22, the Jost Applicants named the Governor in Council, Her Majesty in Right of Canada and the Minister of Public Safety and Emergency Preparedness in addition to the Attorney General of Canada. [ 27 ] The Crown is not a federal board, commission or other tribunal for the purposes of sections 18 and 18.1 of the Federal Courts Act and cannot, therefore, be a respondent in these proceedings.

Decisions by the Governor in Council and the Minister in the execution of their public duties are subject to judicial review. They are represented in these proceedings by the Attorney General of Canada as Respondent. C. The Intervener [ 28 ] On March 14, 2022, the Jost Applicants filed and served an Amended Notice of Constitutional Question under s 57 of the Federal Courts Act on each of the provincial Attorneys General. Only the Attorney General of Alberta responded to the Notice.

The Attorney General of Alberta also sought and was granted leave on May 5th, 2022 to intervene in the CCLA and CCF files to make submissions on several non-constitutional questions. IV. The Context [ 29 ] This portion of these reasons will summarize the background to the applications and the making of the Proclamation , Regulations and Economic Order . I do not propose to revisit the detailed history of events, which were thoroughly canvassed in the five volume report of the Public Order Emergency Commission (POEC), released on February 17, 2023.

However, I consider it necessary to situate these reasons in the context of those events, as I understand them. [ 30 ] The facts recited below are drawn from the records of the parties filed in each application including the supplementary records based on later disclosures. There has been less dispute in these proceedings about what happened than with how the events should be characterized in applying the law.

Where there has been any controversy about the facts, I have scrutinized the relevant evidence with care to determine " “whether it is more likely than not that an alleged event occurred” " : F.H. v McDougall , 2008 SCC 53 at para 49 .

(1) Public Health Orders [ 31 ] On November 19, 2021, the Public Health Agency of Canada announced that, as of January 15, 2022, certain groups of foreign nationals who were, up to that point, exempt from vaccine requirements for entry to Canada would now be required to be fully vaccinated, including essential service providers such as truck drivers.

Similar measures were put in place by the United States government at the border with Canada. [ 32 ] On January 13, 2022, the Minister of Health clarified that an unvaccinated Canadian truck driver could not be denied entry into Canada, but would need to meet requirements for pre-entry, arrival and Day 8 testing as well as quarantine requirements.

(2) Protests in Ottawa and border blockades [ 33 ] As a result of those travel restrictions, a group of individuals prepared to drive across Canada to protest in Ottawa under the name " “Freedom Convoy 2022” " . On January 22, 2022, the Convoy departed from Prince Rupert, British Columbia, on its way to a planned demonstration in Ottawa scheduled for January 29, 2022. The Convoy’s route to Ottawa was widely publicized and other vehicles and individuals joined along the way. (

a) Ottawa [ 34 ] On January 28, 2022, the Convoy arrived in Ottawa. At this point, it consisted of hundreds of vehicles of various types including tractor-trailer units and thousands of individuals who intended to protest Canada’s public health response to the COVID-19 pandemic and the new vaccination requirements for cross-border truckers. The protestors and vehicles occupied much of the downtown core of Ottawa including streets in the vicinity of the Parliamentary precinct, the Supreme Court of Canada and the Federal Courts.

Among other things, the effect was to block vehicular traffic and pedestrian access to offices, businesses, churches and residences in the affected area. [ 35 ] Over the next few days, the protest became a blockade of downtown government, business and residential districts accompanied by incessant noise from truck horns, train type whistles, late night street parties, fireworks and constant megaphone amplified hollers of " “freedom” " . Fumes from the exhausts of diesel and gasoline engines permeated the air and seeped into neighbouring premises.

Containers of fuel were being brought in constantly to keep the vehicles running and to provide heat. There were reported incidents of harassment, minor assaults and intimidation. This created intolerable conditions for many residents and workers in the district. [ 36 ] Between January 30 and February 2, 2022, the demonstrators began to erect structures and organize for a prolonged occupation of the core of the national capital. The Ottawa Police Service (OPS) appeared to be unable to cope with the situation.

The OPS Chief declared " “there may not be a policing solution” " and " “there need to be other elements brought in to find a safe, swift and sustainable end to this demonstration that’s happening here and across the country” " . [ 37 ] On February 3, 2022, the Mayor of Ottawa submitted a request for additional resources to the Federal and Provincial governments to deal with the protest. The same day, Convoy organizers held a press conference where they stated that they would remain in the city until all COVID-19 mandates were revoked.

On February 6, 2022, the Mayor declared a state of emergency. [ 38 ] On February 7, 2022, the Provincial Operations Intelligence Bureau, a branch of the Ontario Provincial Police (OPP), identified the Convoy as a " “threat to national security” " , and the OPS requested an additional 1,800 police officers from other agencies.

The same day, a ten-day interim injunction was granted by Justice McLean of the Ontario Superior Court of Justice to " “silence the honking horns” " and to prevent other by-law breaches by truckers parked in the streets of downtown Ottawa. [ 39 ] Between February 8 and February 10, 2022, the Convoy numbered approximately 418 vehicles and additional cars and trucks were arriving with protestors. Children were estimated to be present in 25 percent of the vehicles. A counter-protest on February 13, 2022 saw hundreds of residents on suburban streets blocking access to vehicles headed to downtown Ottawa.

Convoy participants, or their supporters, allegedly engaged

in a concerted effort to flood Ottawa’s emergency services with calls designed to overwhelm the services’ capacity to respond. Donations to fund the protest were received by a crowdfunding site, GiveSendGo. Information subsequently released indicated that 55.7 percent of the funds received, totalling $3.6 million USD were made by U.S. based donors. [ 40 ] On February 10, 2022, the Prime Minister convened the Incident Response Group (IRG), an emergency committee and coordination body of Cabinet and senior public servants whose role is to advise the Prime Minister in the event of a national crisis.

The Prime Minister and the President of the United States discussed the situation on February 11, 2022. Further meetings of the IRG took place on February 12 and 13, 2022. The Government of Ontario declared a state of emergency and, on February 12, 2022, enacted a regulation to protect critical infrastructure. [ 41 ] Information considered by the IRG, according to its minutes, included that extremist elements were taking

part in the protest. These included members of an organization known as " “Diagolon” " which reportedly proposed to establish a " “diagonal” " country from Alaska to Florida under the slogan " “gun or rope” " . The founder, Jeremy MacKenzie, was arrested in January 2022, before coming to protest in Ottawa, after police found firearms, prohibited magazines, ammunition and body armour at his home.

Moreover, one of MacKenzie’s associates, Derek Harrison, had made a video in which he reportedly expressed his desire to turn the Freedom Convoy protest into " “our own January 6th” " event, alluding to the storming of the US Capitol. One of the Applicants, Ms. Nagle, was in contact with MacKenzie when she was in Ottawa. [ 42 ] The purpose of referring to this information is not to indicate whether the concerns about Diagolon or the charges against MacKenzie were well-founded.

But it is information that was before Cabinet when the decision to invoke the EA was made. [ 43 ] Visible symbols of hate were seen to be held or worn by protestors in media photographs of the occupation. The Applicants, Mr. Jost and Ms. Nagle acknowledged under cross-examination having seen demonstrators wearing yellow Star of David emblems featuring the words " “non vaxx” " in comparison to the symbols victims of the Holocaust were forced to wear.

News articles reported protestors with flags featuring swastikas, and signs bearing the Nazi " “SS” " symbol, as well as Confederate flags. [ 44 ] Some of those involved in organizing the protest brought with them a document purporting to be a draft memorandum of understanding between a group called " “Canada Unity” " , the Senate of Canada and the Governor General. The draft memorandum proposed to form a joint committee to assume government functions in return for which the convoy would cease its occupation of Ottawa.

When it was pointed out that this proposition was devoid of any constitutional reality, it appears to have been ignored by others on the scene. But it illustrates an effort by some of those involved in the protest to interfere with the democratic process and undermine the government. [ 45 ] During the events in Ottawa, smaller protests sprang up elsewhere in cities across the country but those were largely managed and resolved within less than a day or two by local law enforcement. (

b) Border blockades [ 46 ] On January 29, 2022 a blockade began at the Sweetgrass-Coutts, Alberta, border crossing. On February 5, 2022, the Minister of Municipal Affairs of Alberta wrote to the Federal Ministers occupying the portfolios of Public Safety and Emergency Preparedness seeking federal assistance, including equipment and personnel, to move about 70 trucks and semi-tractor trailers as well as approximately 75 personal and recreational vehicles. The Alberta Minister noted that the RCMP had exhausted all local and regional options to alleviate the disruption.

By February 11, 2022, between 200 and 250 additional Convoy vehicles had gathered at Milk River, 18 km from Coutts, where the police had set up a checkpoint to limit access to Coutts. Only about 40 vehicles remained at Coutts itself. [ 47 ] On February 6, 2022, a second blockade began at the Ambassador Bridge in Windsor, Ontario, the country’s busiest border crossing. On February 11, 2022, the Superior Court of Justice granted an injunction aimed at ending this blockade. On February 13, 2022, the police removed participants and approximately 44 charges were laid.

The next day, traffic resumed but the City of Windsor nonetheless declared a state of emergency. Over $390 million in trade with the United States was affected each day of the blockade. [ 48 ] On February 8, 2022, a third blockade was set up on the provincial highway leading to and from the Sarnia Blue Water Bridge, Ontario; Canada’s second busiest border crossing. Access was restored on February 14, 2022. [ 49 ] On February 10, 2022, a fourth blockade began north of Emerson, Manitoba. Up to 75 vehicles were involved in the blockade, which allowed cargo like medical supplies and livestock to pass.

On February 11, 2022, the Premier of Manitoba sent a letter to the Prime Minister urging immediate and effective federal action regarding the blockade. A fifth blockade began on February 12, 2022 near the Peace Bridge port of entry at Fort Erie, Ontario, Canada’s third busiest land border crossing.

On February 14, 2022, the OPP and Niagara Regional Police were able to restore the flow of traffic. [ 50 ] Also on February 12, 2022, protesters’ vehicles broke through a RCMP barricade in South Surrey, British Columbia, heading to the Pacific Highway port of entry and forced the closure of the highway at the Canada-U.S. border. By the end of February 14, 2022, 16 people had been arrested in relation to this blockade.

By the morning of February 15, 2022, the roads were clear. [ 51 ] Early on February 14, 2022, RCMP officers executed a warrant issued under the Criminal Code RSC 1985, c C-46 [ Criminal Code or Code ] and raided two camper trailers and a mobile home at Coutts, arrested 11 individuals and seized a cache of weapons, including 14 firearms, a large supply of ammunition and body armour. Four individuals were charged with conspiracy to commit murder and other offences. Some of the body armour seized was marked with the Diagolon insignia.

(3) Invocation of the Emergencies Act [ 52 ] The full Cabinet met on February 13, 2022 to discuss the situation. The question of whether to invoke the Emergencies Act was then delegated to the Prime Minister, ad referendum. In making the decision, the Prime Minister had the benefit of a memorandum from the Acting Clerk of the Privy Council recommending invocation (the Invocation Memorandum). [ 53 ] On February 14, 2022, the Governor in Council [GIC] declared a public order emergency under the Emergencies Act, the Proclamation , to end the disruptions and blockades occurring across the country.

There were an estimated 500 trucks and other vehicles remaining in downtown Ottawa at the time. [ 54 ] On February 15, 2022, the GIC enacted the Regulations , as well as the Economic Order . The RCMP completely restored access to the Coutts border crossing that same day and reached a resolution with the protestors at the Emerson blockade. [ 55 ] Between February 15 and February 23, 2022, the RCMP disclosed information from the OPP, OPS and its own investigations on

approximately 57 named entities and individuals to financial service providers, resulting in the temporary freezing of about 257 accounts under the Economic Order . [ 56 ] On February 16, 2022, the Public Safety Minister brought a motion before the House of Commons pursuant to

section 58 of the Act to confirm the declaration of the public order emergency proclaimed on February 14, 2022. The blockade at Emerson in Manitoba was completely cleared that day. [ 57 ] Subsection 58(1) of the Act requires that an explanation for the reasons for issuing the declaration [the " “Section 58 Explanation” " ] and a report on any consultations with the Lieutenant Governors in Council [LGIC] of the provinces with respect to the declaration [the " “Consultation Report” " ], shall be laid before each House of Parliament within seven sitting days after the declaration is issued. The

Section 58 Explanation and the Consultation Report were tabled before each House on February 16, 2022. [ 58 ] Following declaration of the Proclamation and making of the Regulations and Economic Order a number of protestors left the blockades in Ottawa. From February 17 to 21, 2022, the police in Ottawa arrested 196 people, of whom 110 were charged with offences, removed 115 vehicles and dismantled the barricades on the streets. [ 59 ] The motion to confirm the Proclamation was adopted in the House of Commons on February 21, 2022.

A motion to confirm the Proclamation was then tabled in the Senate and debate began in that chamber on February 22, 2022. By then the RCMP had contacted financial service providers and advised them that they no longer believed the identified individuals and entities previously disclosed were engaged in prohibited conduct or activities covered under the Regulations and Economic Order . [ 60 ] On February 23, 2022, the declaration of a public order emergency was revoked with the issuance of the Proclamation Revoking the Declaration of a Public Order Emergency , SOR/2022-26 [the " “ Revoking Proclamation ” " ].

Issuance of the Revoking Proclamation had the effect of terminating the Regulations and Economic Order under the terms of the Act .

The Ontario government also lifted its state of emergency that day. [ 61 ] Under subsection 62(1) of the Emergencies Act , a parliamentary review committee must review the " “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.” " Accordingly, a Special Joint Committee on the Declaration of Emergency was established by motion of the Senate and House of Commons on March 3, 2022. [ 62 ] On April 25, 2022, Order in Council P.C. 2022-392 was issued under subsection 63(1) of the Act to cause an inquiry to be held into the circumstances that led to the declaration and the measures taken for dealing with the emergency.

The Public Inquiry was to report to both Houses of Parliament by February 20, 2023. V. Decision under review A. The Proclamation [ 63 ] The proclamation of the public order emergency on February 14, 2022 was

an act of the Governor in Council. The final decision to invoke the Act and declare an emergency was a decision of the Prime Minister with the approval and support of Cabinet. The formal documents conveying the recommendation of Cabinet were submitted to the GIC by the Minister of Public Safety and Emergency Preparedness. [ 64 ] The Proclamation declared that the Governor in Council believed, on reasonable grounds, that a public order emergency existed and necessitated the taking of special measures for dealing with the emergency. [ 65 ] The Proclamation specified that the emergency was constituted of:

a) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,

b) the adverse effects on the Canadian economy — recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) — and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,

c) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,

d) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and

e) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians; [ 66 ] The Proclamation further specified that the special temporary measures anticipated by the GIC are:

a) measures to regulate or prohibit any public assembly — other than lawful advocacy, protest or dissent — that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area, to regulate or prohibit the use of specified property, including goods to be used with respect to a blockade, and to designate and secure protected places, including critical infrastructure,

b) measures to authorize or direct any person to render essential services of a type that the person is competent to provide, including services related to removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade anywhere in Canada, to relieve the impacts of the blockades on Canada’s public and economic safety, including measures to identify those essential services and the persons competent to render them and the provision of reasonable compensation in respect of services so rendered,

c) measures to authorize or direct any person to render essential services to relieve the impacts of the blockade, including to regulate or prohibit the use of property to fund or support the blockade, to require any crowdfunding platform and payment

processor to report certain transactions to the Financial Transactions and Reports Analysis Centre of Canada and to require any financial service provider to determine whether they have in their possession or control property that belongs to a person who participates in the blockade,

d) measures to authorize the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference,

e) the imposition of fines or imprisonment for contravention of any order or regulation made under

section 19 of the Emergencies Act ; and

f) other temporary measures authorized under

section 19 of the Emergencies Act that are not yet known. B. Reasons for the decision [ 67 ] When an administrative decision maker is required by the legislative scheme to provide reasons for its decision, the reasons are the " “primary mechanism by which [they] show that their decisions are reasonable” " ; their purpose is to " “demonstrate ‘justification, transparency and intelligibility’” " : Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [ Vavilov ] at para 81 .

" “Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” " : Vavilov at para 86 . [ 68 ] In these proceedings, the

Section 58 Explanation constitutes the reasons for the decision. [ 69 ] In addition, further to requests for production under Rule 317 of the Federal Courts Rules SOR/98-106 [ Federal Courts Rules ], the annotated agendas and minutes of the several IRG and Cabinet meetings leading to the decision, with redactions, were disclosed to the Court and to the Applicants as they were made available to the POEC. Those minutes and agendas, along with the Invocation Memorandum and the Consultation Report, provide necessary context for understanding how the decision came to be made. C.

Procedural history [ 70 ] These proceedings were under case management from the outset with a Judge and Associate Judge presiding over conferences with counsel for the parties and dealing with motions and procedural issues as they arose. [ 71 ] A motion seeking a temporary interlocutory order to stay the Proclamation while it remained in effect was dismissed as moot when the Proclamation was revoked: Canadian Frontline Nurses v Canada (Attorney General), 2022 FC 284 . [ 72 ] Following requests for documentary production of records pertaining to the issuance of the Proclamation under Rule 317 of the Federal Courts Rules , the Respondent replied on March 15, 2022 with a letter from the Assistant Clerk of the Privy Council objecting to disclosure of records on the basis of Cabinet Confidentiality. [ 73 ] On or about April 1, 2022, the Applicants were served with a certificate signed by the then Interim Clerk of the Privy Council respecting the application of s. 39 of the Canada Evidence Act , RSC, 1985, c C-5 [ CEA ] to the following documents: 1 ) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council directing that a proclamation be issued pursuant to subsection 17(1) of the Emergencies Act , including the signed Ministerial recommendation, a draft Order in Council regarding a proposed proclamation, a draft proclamation, and accompanying materials; 2 ) The record recording the decision of the GIC concerning the Emergency Proclamation, dated February 2022; 3 ) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection l9(

l) of the Emergencies Act and concerning emergency measures Regulations, including the signed Ministerial recommendation, a draft Order in Council regarding proposed emergency measures Regulations, draft Regulations , and accompanying materials; 4 ) The record recording the decision of the GIC concerning emergency measures Regulations, dated February 2022; 5 ) Submission to the GIC from the Minister of Public Safety and Emergency Preparedness, dated February 2022, regarding the proposed Order in Council pursuant to subsection 19(1) of the Emergencies Act and concerning an emergency economic measures order, including the signed Ministerial recommendation, a draft Order in Council regarding a proposed emergency economic measures order, a draft order, and accompanying materials. 6 ) The record recording the decision of the GIC concerning an emergency economic measures order, dated February 2022. [ 74 ] A motion brought by the CCF for an Order pursuant to Rule 75 of the Federal Courts Rules to extend the scope of their application was dealt with in Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1232 .

The Court dismissed the motion on the basis that materials pertaining to the Revoking Proclamation were not before the GIC when the decision under review was made. [ 75 ] On July 19, 2022, the Respondent delivered redacted minutes of the meetings of the IRG on February 10, 12, and 13, 2022 and of Cabinet on February 13, 2022 to the Court and the Applicants. The Chair’s annotated and redacted agendas for the IRG meetings were delivered to the parties on July 22, 2022.

The documents bear notations that the redactions were made pursuant to privilege claims under CEA sections 37 , 38 and 39 , and in addition, for claims of solicitor-client privilege and for lack of relevance. [ 76 ] A second CEA

section 39 certificate was issued on August 4, 2022. [ 77 ] On August 26, 2022 the Court dismissed a motion brought by the CCF for an Order directing the Respondent to deliver the items for which Cabinet Confidence had been claimed in an unredacted form and on a counsel-only basis, subject to undertakings: Canadian Constitution Foundation v Canada (Attorney General), 2022 FC 1233 [ CCF v Canada ]. [ 78 ] A motion brought by the Jost Applicants for an Order to compel production of the records and documents listed in the March 31, 2022 CEA

section 39 Certificate was dismissed: Jost v Canada (Governor in Council) , 2022 FC 1514 [ Jost v Canada ].

[ 79 ] On November 9, 2022, following further discussions with the parties, the Respondent withdrew the majority of its

section 37 and 38 claims. The Applicants did not challenge the claims made under solicitor-client privilege or the remaining CEA claims. The Court dealt with them in an Order issued on January 9, 2023 following an ex parte and in camera proceeding with the assistance of an independent, security cleared, amicus curiae . [ 80 ] On December 12, 2022, CCF and CCLA filed a joint motion in writing under Rule 369 for an order, pursuant to Rule 312, granting leave to the CCLA to file an additional affidavit containing a selection of evidence from the POEC.

A few days later, the Jost Applicants filed a similar motion seeking leave to file a supplementary record containing evidence from the POEC and other material. [ 81 ] On January 27, 2023, the Court granted the CCF and CCLA joint motion in Canadian Civil Liberties Association v Canada (Attorney General), 2023 FC 118 , and dismissed the Jost motion in Jost v Canada (Governor in Council), 2023 FC 120 .

On February 3, 2023, the Respondent filed a Notice of Appeal commencing an interlocutory appeal of the decision to grant the CCF and CCLA motion and seeking an order placing the appeal in abeyance pending the final order on the merits of the underlying applications. [ 82 ] On February 6, 2023, the Respondent filed a motion to admit a supplemental affidavit, pursuant to Rule 312, containing evidence from the POEC. On March 1, 2023, the Court issued an Order granting the motion in part. That decision completed the procedural steps prior to the hearing, which took place on April 3-5, 2023. VI.

Evidence [ 83 ] The parties filed extensive evidence, including affidavits, responses to Rule 317 requests, excerpts from debates in the House of Commons, testimony from the POEC hearings, internal and external communications from the three levels of government, media reports and press releases. Over one hundred and fifty exhibits were attached to one Government paralegal’s affidavit alone. In total, the record exceeded 11,000 PDF pages. Accordingly, I will not review the evidence in detail but refer only to elements I consider significant.

(1) Nagle/CFN [ 84 ] Kristen Nagle submitted two affidavits to describe her involvement in the Ottawa protest and attached exhibits, including videos, Facebook and Twitter posts to support her assertions. She was present at the protest from January 28, 2022 to February 19, 2022.

She was closely cross-examined on her affidavits and exhibits, including the videos she had made during the protest, and on her involvement in other anti-vaccination protests, which led to charges under Ontario public health legislation. [ 85 ] Nagle/CFN also submitted the affidavit of Tom Marazzo, a supporter of the Ottawa protests and volunteer spokesperson and fundraiser.

His bank account and credit cards were frozen on February 18, 2022. [ 86 ] The affidavit of a member of the law firm representing Nagle/CFN was tendered to introduce video statements of the Prime Minister, Deputy Prime Minister and Justice Minister describing the implications of the Regulations and Economic Order . In addition, the affidavit introduced foreign and domestic media reports, public opinion surveys, excerpts from the House of Commons proceedings and a " “Tweet” " from the account of the President of El Salvador. I will not comment on what I thought of that item.

(2) CCLA [ 87 ] The CCLA filed the affidavit of the Director of the Criminal Justice Program, Abigail Deshman. She provides background on the CCLA, its expertise with respect to constitutional rights, its long involvement in civil liberties cases and contribution to the debates on the inception of the EA in 1988. The affidavit describes other litigation related to the COVID-19 pandemic in which the association was involved. This evidence was relevant to the question of whether the association should be granted public interest standing. [ 88 ] Ms.

Deshman’s affidavit also serves to describe the events leading to and following the invocation of the EA based largely on media reports. Published reactions from provincial premiers are also attached as exhibits. [ 89 ] Additional documents were introduced through the affidavit of Cara Zwibel in support of the joint motion of the CCLA and CCF to file a supplementary record, which the Court granted.

Key among these were documents relating to the recommendation from the Clerk of the Privy Council to the Prime Minister, the Invocation Memorandum, and excerpts of testimony from the POEC proceedings including that of the Prime Minister and the Clerk.

(3) CCF [ 90 ] The CCF relied on the affidavits of an associate lawyer to introduce some 58 documents, which were also included in the CCLA record. The CCF provided copies of the Ontario and Nova Scotia Regulations issued in response to the protests. The affidavit also introduced numerous media reports, police press releases, statements from the Premiers of Ontario and Manitoba, orders issued by the Superior Court of Justice of Ontario and federal government records pertaining to the deliberations leading to the Declaration.

(4) Jost Applicants [ 91 ] Affidavits from each of the four Applicants describing their personal histories and involvement in the Ottawa protest were filed. A photo of Reverend Ristau in his former military uniform was attached as an exhibit to his affidavit. A copy of the disclosure report made by the RCMP in relation to Mr. Gircys’ involvement in the protest was attached to his affidavit. The report led to his accounts being frozen.

The Jost Applicants also relied on exhibits attached to the affidavits of Rebecca Coleman, a Department of Justice paralegal, which form part of the Respondent’s record. [ 92 ] Each of the Jost Applicants were cross-examined by the Respondent and several additional exhibits were identified.

(5) Respondent [ 93 ] The Respondent filed the affidavits of Steven Shragge, Superintendent Denis Beaudoin and Rebecca Coleman. [ 94 ] Mr. Shragge is a Senior Policy Advisor with the Privy Council Office Security and Intelligence Secretariat. He provides support to the National Security and Intelligence Advisor to the Prime Minister and to the Cabinet process for matters within his area of responsibility. He described

himself as having operational knowledge of the mandates, memberships and practices of decision making and coordination structures within the Cabinet but acknowledged having no direct knowledge of the deliberation and decision making discussions during the days immediately preceding the declaration of a public order emergency on February 14, 2022. [ 95 ] Mr. Shragge described the preparation and tabling of the

Section 58 Explanation and Consultation Report attached as exhibits to his first affidavit. He refers to the content of the

Section 58 Explanation and states that the decision to issue the Declaration was informed by " “robust discussions” " at three meetings of the IRG. However, as Mr. Shragge put it during cross-examination, he had no " “visibility” " at those meetings and could not personally speak to what " “robust” " meant in the circumstances. He was not involved in the writing of the

Section 58 Explanation and was not able to be of much assistance in shedding light on the deliberations either because he did not know or because of objections to questions put to him on the ground of Cabinet confidentiality. [ 96 ] Superintendent Beaudoin had an operational role in the implementation of the EA measures. He was responsible for overseeing the use of the Economic Order and developed the process used by the RCMP for sharing information with financial institutions.

The Economic Order did not specify the procedure under which financial services providers would identify individuals or entities that met the definition of " “designated person” " . Making it up as they went along, the RCMP developed a template for sharing information with the financial service providers about persons believed to be directly or indirectly involved in activities prohibited under the Regulations . An example of that template is attached to his affidavit. Another is attached to Mr. Gircys’ affidavit which pertains to him.

The RCMP did not generate the information but received it from the OPP and OPS and facilitated its dissemination to financial institutions.

The banks and other service providers would report back to the RCMP under s 5 of the Economic Order on any steps that were taken with the information. [ 97 ] In total, Superintendent Beaudoin averred, the RCMP disclosed information on approximately 57 entities and individuals to financial service providers and approximately 257 accounts were frozen. [ 98 ] On cross-examination, Superintendent Beaudoin acknowledged that the RCMP officers involved in this process did not apply a standard, such as reasonable grounds, before sharing information with the financial institutions. [ 99 ] Ms.

Colman’s affidavits were employed to introduce a large number of media articles, press releases and police statements and Court materials pertaining to the protests. VII. Legal Framework [ 100 ] The Emergencies Act was enacted in the aftermath of the controversy over invocation of the former War Measures Act , RSC 1927, c 206, in response to the 1970 terrorist acts in Quebec. The Act contains a number of threshold components and deliberate checks and balances.

These include the definition of " “national emergency” " as constituting an " “urgent and critical situation of a temporary nature” " which creates a situation that either " “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it,” " or " “seriously threatens the ability of the Government to preserve the sovereignty, security and territorial integrity of Canada.” " [ 101 ] Moreover, a national emergency can only be found to exist if the situation " “cannot be effectively dealt with under any other law of Canada.” " [ 102 ] Under the Act, for a public order emergency to be declared, there is the additional requirement that there must be a " “threat to the security of Canada” " drawing on the definition of such threats provided in

section 2 of the Canadian Security Intelligence Service Act, RSC, 1985, c C-23 ( CSIS Act ) .

The specific clause of that definition relied upon in issuing the Proclamation in February 2022 concerns " “activities…directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective…” " [Emphasis added]. [ 103 ] In addition to the terms of the Act , the Proclamation and the related Regulations and Economic Order , it will be necessary in these reasons to refer to the relevant provisions of the Charter , Canadian Bill of Rights and the CSIS Act , which are set out in the attached Annex " “A” " .

The Invocation Memorandum submitted to the Prime Minister recommending the invocation of the Act , the

section 58 Explanation and the Consultation Report tabled in both Houses of Parliament as justification, are attached in Annex " “B” " . VIII. Issues A. Preliminary issues [ 104 ] As noted above, on April 12, 2022, the Respondent introduced a motion and counter-motion to strike the four Applications on the basis that they were all moot and that none of the Applicants, save for Cornell and Gircys, had standing to challenge the Proclamation and related instruments.

It was decided early in the case management process that the motions would not be dealt with until a hearing on the merits was scheduled and they would then be argued at the outset of the hearing. [ 105 ] The Respondent’s motions raise the following issues: A . Whether the Applications are moot, and if so, whether the Court should nonetheless exercise its discretion to hear the Applications; B .

Whether the Applications should be struck for lack of standing save for two of the Jost Applicants who, the Respondent concedes, have direct standing. [ 106 ] The parties submitted extensive written argument on the preliminary issues. In light of that, I limited the amount of time for oral argument on the motions at the beginning of the hearing on April 3, 2023. In addition, I indicated at the outset of the hearing that I agreed with the Respondent that Jost and Ristau lacked standing for reasons to be provided later. I recognized that the direct standing of Cornell and Gircys was conceded by the Respondent.

Accordingly, they would be heard on the merits subject to my findings on mootness. [ 107 ] Apart from the determination regarding the standing of Jost and Ristau, I advised the parties that I would reserve my decisions on the motions. B. Substantive issues

[108] Nagle/CFN submitted that their Application raised issues of whether the Proclamation was ultra vires as there was no public order emergencyas defined by the Act, and whether the Regulations and Economic Order violate the Charter and the Canadian Bill of Rights. [109] CCLA argued that their Application raises the following issues: -Whether the decision to issue the Proclamation was unreasonable and ultra vires; -If not, whether the prohibitions contained at sections 2, 4, 5 and 10 of the Regulations violated sections 2(b)(c)(

d) and 7 of the Charter, andwhether sections 2 or 5 of the Economic Order infringed

section 8 of the Charter; -If so, whether the infringed rights, if any, can be justified under

section 1 of the Charter. [110] Similarly, the CCF argued that their Application concerns the following issues: -Did Cabinet have reasonable grounds to conclude that the protests were threats to the national security of Canada? -Did Cabinet have reasonable grounds to conclude that the protests could not be effectively dealt with under existing law? -Did the powers created by the Regulations and Economic Measures violate sections 2(b)(

c) and 8 of the charter and can they be saved undersection 1? [111] In their written argument, the Jost Applicants submitted that this case put the following matters in issue: -What is the test for invocation of the Act, and based on that test, was the invocation of the Act in this case lawful and constitutional? -Is the phrase throughout the Act "“special temporary measure”" void for vagueness under s.7 of the Charter, unjustifiable under s 1, andtherefore requiring a remedy under s 52(1) of the Constitution Act, 1982? -If no, are the “special temporary measures” passed under

section 19 of the Act, ultra vires of s 19, or in the alternative, do the provisions ofthe Economic Order violate

section 8 of the Charter, and are unjustifiable under s.1, thereby requiring a declaration under s.52(1) of theConstitution Act, 1982 to that effect? [112] In addition, the Jost Applicants alleged violation of the protection of property rights under

section 1(

a) of the Canadian Bill of Rights. Thatallegation was also included in their Amended Notice of Constitutional Questions filed on March 14, 2022. [113] At the hearing, counsel for the Jost Applicants chose to focus on their Charter arguments and only briefly asserted infringement of theCanadian Bill of Rights.

They did not pursue the other questions set out in their factum and Amended Notice of Constitutional Questions. [114] However, in their oral argument, the Jost Applicants raised fresh questions relating to the application of several international agreements, theVienna Convention on the Law of Treaties and principles of customary international law. These matters were mentioned but not discussed in theirNotice of Application and were not identified as issues or addressed in their Memorandum of Fact and Law.

As result, the Respondent had not dealtwith them in their written submissions and were not prepared to speak to them in oral argument. The Respondent therefore objected to thesearguments being considered. [115] As a general rule unless the situation is exceptional, new arguments not presented in a party’s Memorandum of Fact and Law should not beentertained as to do so would prejudice the opposing party and could leave the Court unable to fully assess the merits of the new arguments. TheCourt retains the discretion to accept new arguments not raised in a party’s memorandum.

However, as the Applicants did not raise any exceptionalsituation or authority for presenting these arguments for the first time at the hearing the Court will not consider them: Rouleau-Halpin v BellSolutions Techniques, 2021 FC 177 at paras 33-34. [116] Had I accepted that they were admissible, the Jost Applicants’ international law arguments would have been of little assistance in theseproceedings in view of the principles discussed in Entertainment Software Association v Society of Composers, Authors and Music Publishers ofCanada, 2020 FCA 100 at paras 76 to 92. [Entertainment Software].

In short, as stated by Justice Stratas, domestic law prevails and the Constitutionof Canada is supreme (Entertainment Software at para 79). [117] I note that the

Preamble of the Emergencies Act states that in taking the special temporary measures authorized by the Act, the Governor inCouncil must have regard to the International Covenant on Civil and Political Rights (ICCPR). In Quebec (AG) v Moses, 2010 SCC 17 at para 101the Supreme Court of Canada said as follows: The wording of a statute’s

preamble often provides insight into the statute’s purpose or goal that can be helpful to a court interpreting it.According to s. 13 of the federal

Interpretation Act, R.S.C. 1985, c. I-21, “[t]he

preamble of an enactment shall be read as a part of theenactment intended to assist in explaining its purport and object.” […]Although a legislative

preamble will never be determinative ofthe issue of legislative intent since the statute must always be interpreted holistically, it can nevertheless assist in the

interpretation ofthe legislature’s intention […] [118] Accordingly, the reference in the

Preamble to the ICCPR may serve as an interpretative aid as to the legislative intent of the EA. However, itis clear from the legislative history and language of the Act that the intent and purpose of the EA was to preserve and protect fundamental rightseven in emergency situations where special temporary measures may be required. Thus, it is not necessary to refer to the ICCPR to interpret theprovisions of the Act. The modern principle of

interpretation set out in Rizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 SCR 27 at para21[Rizzo & Rizzo] governs. It requires that the words of the Act "“are to be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”". [119] The Respondent submits that the issues are simply whether the decision to invoke the Act and to make the Regulations and Economic Orderare reasonable and constitutional. [120] The intervener, the Attorney General of Alberta, made submissions on five questions: 1. What is the definition of "“national emergency”" in

section 3(

a) of the Act requiring that it must be "“of such proportions or nature as toexceed the capacity or authority of a province to deal with it”"? 2. What is the

interpretation of the phrase in

section 3 of the Act “cannot be effectively dealt with under any other law of Canada”?

3. What are the implications of the requirement in section 17(2)(

c) of the Act that the declaration of public order emergency specify the areas ofCanada to which the effects of the emergency extend? 4. What is the

interpretation of the requirement in section 25(1) of the Act to consult with the provinces? 5. What is the relationship between sections 19(1) and 19(3) of the Act? [121] In my view, in addition to the preliminary questions relating to mootness and standing, the issues raised by the parties and the Intervener maybe summarized in three broad questions: 1. Was the Proclamation unreasonable and ultra vires of the Act? 2. Did the powers created by the Economic Order and Regulations violate sections 2(b)(c)(d), 7 or 8 of the Charter, and, if so, can they be savedunder

section 1? 3. Did the Regulations and Economic Order violate the Canadian Bill of Rights? IX. Argument and Analysis A. Preliminary issues

(1) Test for a motion to strike [122] The Court’s jurisdiction to strike a proceeding derives from its inherent jurisdiction to control its own process: Lukas v Canada (President,Natural Sciences and Engineering Research Council), 2015 FC 267 at para 24, cited with approval in 1397280 Ontario Ltd v Canada (Employmentand Social Development), 2020 FC 20 at para 11; see also Rebel News Network Ltd v Canada (Leaders’ Debates Commission), 2020 FC 1181 atpara 32 [Rebel News]. The threshold applicable on a motion to strike is whether the application is "“bereft of any possibility of success”".

Asdiscussed in Wenham v Canada (Attorney General), 2018 FCA 199 at para 33 [Wenham] the Court uses the "“plain and obvious”" threshold or"“doomed to fail”" standard. Taking the facts pleaded as true, the Court examines whether the application: …is “so clearly improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 at page 600 (C.A.). There must be a “show stopper” or a “knockout punch” – an obvious, fatalflaw striking at the root of this Court’s power to entertain the application: Rahman v.

Public Service Labour Relations Board, 2013FCA 117 at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6; cf. Hunt v. Carey CanadaInc., (SCC), [1990] 2 S.C.R. 959. Citing Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at para 47. [123] The Court must read the notice of application to get at its "“real essence”" and "“essential character”" by reading it "“holistically andpractically without fastening onto matters of form”": Wenham para 34.

An application can be doomed to fail on a preliminary objection, as in thisinstance, because of mootness: Wenham para 36.

(2) Test for mootness [124] A matter is moot when there is no longer a live issue between the parties and an order will have no practical effect: Borowski v Canada(Attorney General), (SCC), [1989] 1 SCR 342 at p 353 [Borowski]. The Respondent brought its motion to strike the fourapplications for judicial review on the basis that all the applications are moot since they seek remedies in respect of legislative instruments that areno longer in effect, as the Public Order Emergency ended and the Proclamation, Regulations and Economic Order were revoked on February 23,2022.

Accordingly, the Respondent argues, there is no live controversy between the parties and nothing concrete or tangible for the Court to opineon that will impact the rights and interests of the parties. [125] The Court may nonetheless choose to exercise its discretion to hear a moot application upon considering: (1) the presence of an adversarialcontext; (2) the appropriateness of applying scarce judicial resources; and (3) the Court’s sensitivity to its role relative to that of the legislativebranch of government: Borowski, pp 358-362. [126] The Court may also decline to exercise its discretion to hear moot matters when the requesting party did not come to the Court with cleanhands: Merck Frosst Canada Inc. v Canada, at para 6 (FCA); Narte v Gladstone, 2021 FC 433 at paras 33-34. [127] In these proceedings, all of the Applicants except for Nagle/CFN conceded that there was no longer a live controversy between the parties as aresult of the Revoking Proclamation and that the matter is now moot.

They all contend that should the Court find that the matter is moot, it shouldnonetheless exercise its discretion to hear the applications.

(3) The Respondent’s position [128] In essence, the Respondent contends, the four applications are requests for declarations which fail to provide live issues for judicial resolutionas they cannot sustain a moot case in and of itself: Rebel News at para 64. A mootness finding cannot be avoided because declaratory relief issought: Fogal v Canada, (FC) at paras 24-27, Rahman v Canada (Minister of Citizenship and Immigration), 2002 FCT 137, atparas 17-21.

A declaration may be granted only if it will have practical utility and will settle a live controversy between the parties: Income SecurityAdvocacy Centre v Mette, 2016 FCA 167 at para 6, citing Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para 11,Solosky v The Queen, (SCC), [1980] 1 SCR 821 and Borowski.

In the present case, the Respondent argues, there is no such practicalutility. [129] Moreover, the Respondent submits the Court should avoid expressing an opinion on a question of law where it is not necessary to do so todispose of the case as abstract constitutional pronouncements may prejudice future cases: Phillips v Nova Scotia Commissioner of Inquiry into theWestray Mine Tragedy, (SCC), [1995] 2 SCR 97 at paras 9-12; Mackay v Manitoba, (SCC), [1989] 2 SCR 357 at p361-2; Danson v Ontario (Attorney General), (SCC), [1990] 2 SCR 1086 at p 1099-1101.

Where a proceeding will not have apractical effect on the rights of the parties, it has lost its primary purpose, the Respondent argues, and the Court should not devote scarce resources

to it: Amgen Canada Inc v Apotex Inc, 2016 FCA 196 at para 16 [Amgen].

A "“mere jurisprudential interest”" does not satisfy the need for aconcrete and tangible controversy: Air Canada Canadian Union of Public Employees (Air Canada Component) v Air Canada, 2021 FCA 67 at para7 [CUPE v Air Canada]. [130] In the present matter, according to the Respondent, the Applicants have already obtained the relief sought as the measures are no longer ineffect; any declaration that the Emergency Measures were invalid or not Charter-compliant would provide no practical utility and there is notangible relief to be provided that warrant this Court’s intervention.

This is not a case where there is a need to settle uncertain jurisprudence: Amgenat para 16. Nor is the Act evasive of review as it provides for adequate oversight and review mechanisms in its provisions for a Public Inquiry andParliamentary Review.

(4) Positions of the Applicants [131] The CCLA, CCF and the Jost Applicants concede that their applications are moot but argue that the Court should exercise its discretion tohear them as the Borowski factors weigh in their favour. Over the past year, they argue, the parties have presented and continue to present thenecessary adversarial context, judicial economy supports hearing this case, which raises once-in-a-generation issues that are evasive of review, andthe Court’s role is to explain whether the government’s action was reasonable and Charter-compliant.

Should the Court decide otherwise, theycontend, the result is that any proclamation of a public order emergency and imposition of extraordinary measures of a brief duration will never bejudicially reviewed. Revocation under the Act should not immunize the executive branch from judicial review, they argue. [132] Cornell and Gircys add that in their case, the proceedings should be allowed to continue as the Respondent concedes that they have directstanding.

The Court should therefore exercise its discretion to hear their case even if it is otherwise moot, they argue. [133] The Nagle/CFN applicants submit that insofar as they are concerned the matter is not moot and a live controversy exists because their rightsand liabilities were affected or may be affected notwithstanding the revocation of the Proclamation and cancellation of the Regulations andEconomic Order by virtue of

section 43 of the

Interpretation Act, R.S.C., 1985, c. I-21 [Interpretation Act]. (

a) Analysis (

i) Presence of an adversarial context [134] The requirement for an adversarial context is to make sure that the issues are "“well and fully argued by parties who have a stake in theoutcome”": Borowski, p. 359.

The necessary adversarial context exists where "“both sides, represented by counsel, take opposing positions”"(CUPE v Air Canada at para 10), where the parties continue to defend opposed positions on the issue (Laurentian Pilotage Authority v Corporationdes Pilotes de Saint-Laurent Central Inc., 2019 FCA 83 at para 27 [Laurentian Pilotage]), and where an application has been "“fully argued on themerits”" by the Attorney General of Canada and a public interest organization (Democracy Watch v Canada (Attorney General), 2018 FCA 195 atpara 15, [Democracy Watch]). [135] Since it was decided over a year ago that the Respondent’s motions would not be heard and determined before the date scheduled for thehearing on the merits, the parties have continued to vigorously argue their respective positions.

The several contested motions in the past year are,in my view, sufficient evidence of the existence of an adversarial context. Considerable time, energy and resources have been invested in these casesfrom all parties. The issues have been highly contested and zealously argued throughout. [136] I agree with Cornell and Gircys that there remains a "“tangible and concrete”" dispute between the parties.

The issues are not simplyacademic for them as they were directly affected by the invocation of the Act, which, as will be discussed below, arguably had an impact upon theirCharter rights. [137] There may be no immediate "“collateral consequence”" from these applications that could determine related proceedings between the parties,a factor to be taken into consideration as the Respondent contends.

However, the existence of collateral consequences are not always essential indetermining whether to exercise the court’s discretion to hear a case despite its mootness, especially when the subject matter may otherwise beevasive of review: N.B. (Minister of Health) v G.(J.), (SCC), [1999] 3 SCR 46 at para 45 [G.(J.)]. [138] Nagle/CFN argue that they remain liable to prosecution for breaching the Regulations. I do not accept this.

As I discuss further, below, inrelation to standing, the possibility of a prosecution against either Nagle or the CFN is entirely hypothetical given subsequent events and thepassage of time. Moreover, their assertion of a potential claim for compensation for Charter damages or under subsection 48(1) of the Act isspeculative given the lack of evidence of any harm to Nagle or the CFN.

In the result, I am satisfied that there is no live controversy between themand the Respondent. [139] These matters are distinguishable from the applications dealt with in Ben Naoum v Canada, 2022 FC 1463 [Ben Naoum], a case relied uponby the Respondent. In those proceedings, four judicial review applications challenging Canada’s vaccine mandates for air and rail passengers werestruck. Among the reasons why Associate Chief Justice Gagné declined to hear them were that the mandates had been revoked and declaratoryrelief would bring no practical utility.

However, by the time those matters came before the Court, the federal and provincial health safety measuresadopted in the pandemic had already been constitutionally challenged across the country as they were in full force and effect. As a result, there wasno uncertain jurisprudence to be resolved: Ben Naoum at para 42.

Similarly, in Lavergne-Poitras v Canada, 2022 FC 1391 it was found that theapplication was not evasive of review in part because it was already being considered in other courts. [140] In other cases cited by the Respondent in support of their motion to strike, the decisions at issue had already been reviewed at first instance.:Spencer v Canada, 2023 FCA 8; Right to Life Association of Toronto v Canada, 2022 FCA 220; Fibrogen, Inc v Akebia Therapeutics, Inc., 2022FCA 135; Canada v Ermineskin Cree Nation, 2022 FCA 123; Wojdan v Canada, 2022 FCA 120.

That is not the situation here as there has been noprior determination by the Courts of the validity of the decision at issue. [141] In my view, the Applicants have established that an adversarial context continues to exist and have built a record upon which meaningfuljudicial review of the decision to invoke the Act and issue the Proclamation and related instruments can occur. (ii) Judicial Economy [142] Under the judicial economy analysis, courts can consider whether the matter is likely to recur and is evasive of review, and whether thematter is of national or public importance: Borowski at p 353.

The Respondent does not dispute that the matter is of national and public importancebut contends that alone is insufficient in the absence of an additional "“social cost in leaving the matter undecided”": Borowski at p 362. The

Respondent suggests that the likelihood of recurrence is uncertain given the exceptional circumstances in which the Act was invoked and contendthat further declarations will not be evasive of review going forward in light of the requirements for both a public inquiry and parliamentary review. [143] I disagree. The risk of other episodes of public disorder of the nature which occurred in February 2022 can not be discounted.

While thecircumstances were exceptional up to that point in time, there can be no guarantee that there will not be a recurrence of similar events, or worse, inlight of the rise of extremist elements within our society prepared to take their opposition to government policies to another level of protest, and towhip up support for such protests through the extraordinary reach of social media. [144] I agree with the Applicants that neither the Public Inquiry nor the Special Joint Committee of the House of Commons and the Senate, requiredby the Act to examine the Declaration of Emergency, are substitutes for judicial review.

Without dismissing in any way the importance of thoseprocedures, their roles are not to adjudicate upon the legality and constitutionality of the measures adopted under the Act. Rather, their roles are toconsider the events which took place and to make recommendations that, without legislative or other action, have no legal effect. While they areboth important accountability mechanisms, they are legally and practically distinct from the Court’s adjudicative function: Canadian Civil LibertiesAssociation v Canada (Attorney General), 2023 FC 118, at paras. 56-57.

The present proceedings are thus not duplicative of the work done by thePOEC or that being undertaken in the Parliamentary process, contrary to the Respondent’s submission. [145] I am conscious of the reality that as a single puisne judge I may err on the findings I make in these reasons. However, such errors can be curedon appellate review.

Neither the Commission nor the Parliamentary Committee process are susceptible to appeal. [146] The Respondent submits that the invocation of the Emergencies Act is not evasive of judicial review because the Federal Court is accessible24 hours a day, 365 days a year for urgent applications. The Respondent argues that, if necessary, interim stay orders could be issued and timeframes abridged.

It is true that interim injunctive relief may be rapidly accessed from the Court, but this remedy is generally sought in the context ofa long-standing dispute between the parties and there is an adequate evidentiary basis for a considered decision to be rendered promptly. [147] As the history of these proceedings demonstrates, it can be difficult to obtain the evidence required to bring an application for an injunctionagainst actions by the government when the Executive is in control of the information underlying the decision and unwilling to disclose it.

In thisinstance, at the outset, very little information about the grounds for invocation of the Act was disclosed beyond the

Section 58 Explanation.Production requests for material records, under Rule 317 of the Federal Courts Rules, were actively resisted by the Respondent under several headsof privilege including broad claims of Cabinet confidentiality. [148] As argued by the CCF, a public order emergency is a paradigmatic example of a matter that is evasive of review because it will almost alwaysbe over and moot by the time a challenge can be heard on the merits.

For arguably comparable examples see Tremblay v Daigle, (SCC), [1989] 2 SCR 530, p 539; G.(J.) at para 47; Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 20; Mazzei vBritish Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7 para 15; A.C. v Manitoba (Director of Child and Family Services),2009 SCC 30 at para 174; Mission Institution v Khela, 2014 SCC 24 at para 14; Canada (Public Safety and Emergency Preparedness) v Chhina,2019 SCC 29 at para 15; and R. v Penunsi, 2019 SCC 39 at para 11. [149] The Act’s definition of a "“public order emergency”" requires that it be temporary, which means that such order will likely have ended longbefore any legal challenges to the proclamation of an emergency are heard by the courts.

The timeline of this case illustrates this point.

If the Courtdeclines to hear these cases, a precedent may be established that so long as the government can revoke the declaration of an emergency before ajudicial review application can be heard, the courts will have no role in reviewing the legality of such a decision. [150] There would thus be an "“additional social cost”" in leaving the issues raised in these proceedings undecided, as the Act vests extraordinarypowers in the Executive, including the power to create new offences without recourse to Parliament, or public debate, and the power to act in coreareas of provincial jurisdiction without provincial consultation or consent. [151] Uncertainty as to when and how the Act can be invoked necessarily creates a "“social cost”" in that, in the next emergency, the governmentmay take similar measures without the benefit of the guidance of the courts on their reasonableness or compliance with the Charter.

In the result,the interests of judicial economy do not foreclose the hearing of these applications. (iii) Court’s sensitivity to its role relative to that of the legislative branch of government. [152] The courts must be sensitive to their role as the adjudicative branch in our political framework as pronouncing judgment in a moot case maybe viewed as making law in the abstract, a task reserved for the legislative branch: Borowski at p. 362; Amgen at para 16.

A court may decline toexercise its discretion to hear a moot case where Parliament also has a role in considering the same issues: Democracy Watch at paras 20-22. [153] I agree with the Respondent that the Act’s requirements for a Parliamentary review process and a public inquiry calls for an extra measure ofcaution.

However, a review of the legislative history of the Act demonstrates that Parliament itself contemplated judicial review of emergencydeclarations. [154] The Bill introducing the Act in 1984 was amended to drop the loose requirement that Cabinet only needed to be "“of the opinion”" that anemergency existed, in favour of the requirement that there be "“reasonable grounds”" for such a decision. The expressly stated purpose of thiswording was to empower courts to judicially review emergency proclamations: Bill C-77,

An act to authorize the taking of special temporarymeasures to ensure safety during national emergencies and to amend other Acts in consequence thereof (First Reading) (June 26, 1987) [Bill C-77];Minutes of Proceedings and Evidence of the Legislative Committee, 33rd Parl., 2nd Sess., Vol. 1, No. 1 (February 23, 1988), pp. 15 to 16. [155] A reviewing court may have reference to the legislative history of an enactment as part of the context but that evidence must be examined withcaution. The authen

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