EL GOBIERNO DE CANADÁ EJERCITÓ DE FORMA INCONSTITUCIONAL SUS PODERES DE EMERGENCIA (I)

 X. Conclusion

[370] At the outset of these proceedings, while I had not reached a decision on any of the four applications, I was leaning to the view that the decision to invoke the EA was reasonable. I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order. I had and continue to have considerable sympathy for those in government who were confronted with his situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC.

[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 (Canadian Civil Liberties Association) and CCF (Canadian Constitution Foundation). 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.

[372] I have concluded that the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration. In my view, there can be only one reasonable interpretation of EA sections 3 and17 and paragraph 2(c) of the CSIS Act and the Applicants have established that the legal constraints on the discretion of the GIC to declare a public order emergency were not satisfied.

[373] As discussed above, I have found that Kristen Nagle, Canadian Frontline Nurses, Jeremiah Jost and Harold Ristau lack standing to seek judicial review of the decision and their  applications are dismissed for that reason. I recognize that Edward Cornell and Vincent Gircys have direct standing to challenge the decision and grant public interest standing to the CCLA and CCF. I find that the remaining Applicants have established that the decision to issue the Proclamation was unreasonable and led to infringement of Charter rights not justified under section 1. Their applications are granted to that extent. I find no reason to apply the Canadian Bill of Rights.

(1) Remedies

[374] The Applicants all sought declaratory relief if any of the legislative instruments were found to be unreasonable or unconstitutional. Gircys and Cornell went further in their Memorandum of Fact and Law to request a declaration that the Emergencies Act is inconsistent with s 91, s 92 and s 96 of The Constitution Act, 1867, 30 & 31 Vict, c 3, and, to the extent of those inconsistencies, is of no force or effect pursuant to s 52(1) of the Constitution Act. As they did not make that argument at the hearing, I took it to have been abandoned. In any event, I considered it to be of no merit. This case was not about the constitutionality of the Act but ather, how it was applied in this instance.

[375] Judgments will be issued in each Application to reflect the conclusions I have reached.