Not *That* Urgent: Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42

Readers will no doubt have noticed Justice Mosley’s decision last week in Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42, holding that the invocation of the Emergencies Act by the federal government in 2022 was unlawful, both because the reasons given lacked justification given the constraints of the Act (and the facts) and because the measures put in place disproportionately violated ss. 2 and 8 of the Charter of Rights and Freedoms.

The decision is long and seems certain to be appealed so I do not propose to describe it at great length (see Mark Mancini). Leaving the Charter issues aside, what is most interesting from a doctrinal perspective is the extent to which the applicable legal and factual context shaped the analysis. This, of course, is what Vavilov directs attention at: was the decision justified in view of the relevant legal and factual constraints. Here, the federal government was constrained by both the law and the facts.

As a legal matter, it is abundantly clear from the text and structure of the Act (and the legislative history) that a high threshold must be met before declaring a public order emergency. The “reasonable grounds” requirement was inserted precisely to limit the power of the federal government (as were the various review mechanisms); there must be a threat to the security of Canada; there must be demonstrable lack of provincial capacity; and the provisions of the Act relating to public order emergencies impose procedural and substantive requirements relating to provincial consultation and (in the case of an emergency in one province only) consent.

As a factual matter, again it is clear (even from the reasons provided by the federal government) that by the time the Act was invoked, the only remaining traces of the emergency situation were in downtown Ottawa, other protests having been dismantled by use of existing tools.

The federal government’s reasons therefore had to justify the invocation of a public order emergency in light of these constraints but fell down in various ways. Justice Mosley’s central conclusion was as follows:

[253] Due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces. This does not mean that every tool has to be used and tried to determine that the situation exceeded the capacity or authority of the provinces. And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.

[254] The Section 58 Explanation concludes that the ongoing protests had “created a critical, urgent, temporary situation that is national in scope and cannot effectively be dealt with under any other law of Canada.” While I agree that the evidence supports the conclusion that the situation was critical and required an urgent resolution by governments the evidence, in my view, does not support the conclusion that it could not have been effectively dealt with under other laws of Canada, as it was in Alberta, or that it exceeded the capacity or authority of a province to deal with it. That was demonstrated not to be the case in Quebec and other provinces and territories including Ontario, except in Ottawa.

Justice Mosley also concluded that there was no “threat to the security of Canada” within the meaning of the Act:

[292] The potential for serious violence, or being unable to say that there was no potential for serious violence was, of course, a valid reason for concern. But in my view, it did not satisfy the test required to invoke the Act particularly as there was no evidence of a similar “hardened cell” elsewhere in the country, only speculation, and the situation at Coutts had been resolved without violence.

[293] Much of the Section 58 Explanation is devoted to the deleterious effects of the blockades on Canada’s economy. The strongest connection to activities directed toward or in support of the threat or use of acts of serious violence against persons or property is found in the section of the explanation discussing the fifth specified reason for the Proclamation – the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians. This section speculates that the convoy could lead to an increase in the number of individuals who support ideologically motivated violent extremism. It describes other events related to anti-public health measures and protests in Quebec and Atlantic Canada and the situation in Ottawa

[294] While these events are all concerning, the record does not support a conclusion that the Convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada. The situation at Coutts was dealt with by the RCMP employing provisions of the Criminal Code. The Sûreté du Québec dealt with the protests in that province and the Premier expressed his opposition to the Emergencies Act being deployed there. Except for Ottawa, the record does not indicate that the police of local jurisdiction were unable to deal with the protests.

[295] Ottawa was unique in the sense that it is clear that the OPS had been unable to enforce the rule of law in the downtown core, at least in part, due to the volume of protesters and vehicles. The harassment of residents, workers and business owners in downtown Ottawa and the general infringement of the right to peaceful enjoyment of public spaces there, while highly objectionable, did not amount to serious violence or threats of serious violence.

To me, this is all Vavilov 101. The contextual constraints of law and fact were tight and the reasons given failed to provide adequate justification for the decision. For my part, I was always sceptical that the invocation of the Act was appropriate in the circumstances, difficult and all as they were, so perhaps I am naturally inclined to accept Justice Mosley’s analysis as authoritative. Regardless of my priors, however, the analysis is undoubtedly clear and hones in on the weak points in the reasons given for declaring a public order emergency.

One of Justice Mosley’s concluding comments has drawn attention:

[371] My preliminary view of the reasonableness of the decision may have prevailed following the hearing due to excellent advocacy on the part of counsel for the Attorney General of Canada had I not taken the time to carefully deliberate about the evidence and submissions, particularly those of the CCLA and CCF. Their participation in these proceedings has demonstrated again the value of public interest litigants. Especially in presenting informed legal argument. 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.

Does this undermine Justice Mosley’s analysis of the legal and factual constraints? In my view, it does not. Reasonableness is not a matter of impression but rather the product of the application of the Vavilov framework. Judges rarely acknowledge that they are human, or comment openly on the process of deliberation, which involves reflection on written arguments, engagement with counsel in oral submissions and further reflection in writing a decision. This passage stands, to me at any rate, as a reminder that judges are human, that many cases are difficult and that a judge might change their mind during the deliberative process. All the better for our collective understanding of law. Ultimately, Justice Mosley’s legal and factual analysis, which he arrived at after careful consideration of all the submissions, stands and falls on its merits: the judge’s subjective state of mind does not bear on his objective conclusions on the reasonableness of the decision.

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This content has been updated on January 30, 2024 at 15:21.