“They used a sledge hammer to kill a fruit fly”: Why the CCLA is taking the Feds to court over the Emergencies Act

On February 15th, the federal government invoked the Emergencies Act to “end disruptions, blockades and the occupation of the city of Ottawa.” But critics, including the Canadian Civil Liberties Association, saw the invocation as an example of massive government overreach. The organization recently announced their intention to take the Feds to court over what they describe as an unlawful invocation. “They gave themselves power that they had no lawful authority to take,” says Noa Mendelsohn Aviv, executive director of the CCLA. 

The CCLA filed a lawsuit against the Federal government. How come?
We are taking the federal government to court over the invocation of the Emergencies Act, and the emergency orders that it created under that act, which include significant limits on peaceful assembly across the country, prohibiting the participation in any public assembly that “may reasonably be expected to lead to a breach of the peace.” As well as the ability to freeze the bank accounts and cut off financial services provided to anyone who has attended—or who has provided assistance to those participating in—a prohibited assembly. So you could be someone who made a donation to the convoy because you don’t believe in vaccine mandates, and suddenly the government has the power to freeze your bank account. Our position is that this constitutes significant overreach.  

Trudeau promised the measures would be “geographically targeted and time-limited,” suggesting only Ottawa would be impacted.  
That is what he said, but that is not what is written in emergency orders which were excessive and applied from coast to coast. Normally, new laws go through Parliament, and there are checks and balances built in to ensure transparency and accountability. Once the Emergencies Act is invoked, Cabinet has the power to make laws, effectively circumventing the democratic process. 

So this was basically the federal government saying, “Just trust us?”
Exactly. There has been a lot of “just trust us.” And, “Oh, sure we’ve given ourselves enormous powers that limit rights laid out in the Charter, but don’t worry, we’re not going to use them improperly.” I want to be clear that our concern is not about the federal government taking action to address a really difficult situation that had been going on for several weeks in Ottawa. Or that the government needed to protect residents, especially marginalized and racialized communities that felt intimidated and harassed. What we’re concerned about is how the government went about it, by using an extraordinary power that is supposed to be reserved for a national emergency.

So just to clarify: The CCLA doesn’t believe the situation in Ottawa qualifies as a national emergency?
Not as defined by the National Emergencies Act, which states that the emergency must be urgent and dangerous to people’s lives, or to the security of Canada that is beyond the capacity or the authority of a province to deal with, and that Canada doesn’t have laws to address. We don’t think that applies, particularly since the blockade of the bridge in Windsor was disassembled before the emergency orders were enacted. And because Premiers from individual provinces were saying, “It’s okay, we got this.” Which is exactly what happened in Toronto, a few weeks ago, right? We had truckers coming in and attempting to blockade the area around Queen’s Park. The local police saw what was happening in Ottawa and they set up preventative measures. 

Sure. But in Ottawa, the police were either unable or unwilling to control the situation. And then the government passed the Emergencies Act and the convoy was quashed. Isn’t that an argument in favour?
I think that just because an excessive measure works, it does not prove that that excessive measure was the only option, or that it was necessary. They used a sledgehammer to kill a fruit fly. What the Ottawa police needed were more officers. That happens all the time. Police bring in officers from other forces to deal with complex law enforcement situations. 

I want to ask you about the clearing of the trucks in particular. The Emergencies Act gave the government the power to compel tow truck drivers to help with the removal of the convoy trucks, something they were refusing to do beforehand. 
And if that is the only power the government had granted itself, the CCLA may have had a different response. But that’s not what happened. The orders went well beyond tow trucks. 

Right, but what other options were available to clear the trucks? Like, if you’re saying they went from 0 to 100, what does a 5 look like? 
That is a fair question, and I’m not entirely sure. It’s the government’s responsibility to find those solutions, not a non-profit organization that’s standing up for rights and freedoms of Canadians. The onus is on them to protect the streets of Ottawa. But also the rights and the democracy of Canada for now and for the future.  And we are concerned in particular about the long game, we are concerned about the possibility that not just this government, but also future governments, could use emergency powers inappropriately, to suppress protests by any number of groups, whether it’s students protesting in the streets, environmental activists, people fighting for racial justice, workers on strike. We don’t want future governments to say, “We have the Emergencies Act in our pocket.”

And that becomes easier because “Justin Trudeau did it in 2022”?
Using emergency powers is something that should never be normalized. And that’s hard with the last two years where we’ve heard the terms ‘emergency action,’ ‘emergency powers’ and ‘emergency orders,’ and we’ve gotten used to it.

Now that Trudeau has revoked the Emergencies Act, is it fair to say you’re less concerned with what did happen than what could have happened?
Well, we do think there was government overreach, so no, it’s not a case of, “This time was okay, but maybe next time it won’t be.” There were people who had their bank accounts frozen without a court order. We have no idea if those cases were justified or what kind of hardship those people may have suffered. And likewise, with the blocking of protesting—any protesting. I guess there is some comfort in the fact that the orders are no longer in effect, but that doesn’t change what happened or our decision to take legal action. We are going ahead with the lawsuit because it is important that our courts have the opportunity to review and consider what actually happened. 

What’s next? What does a win look like?
What’s next is we will be in court. I’m not sure when, just because there are so many different moving parts. A win would be the court ruling that this was not just an error, but that the government didn’t have the lawful authority to declare an emergency or to pass the orders that were passed. In making that declaration, the courts would be confirming our position and making it clear to subsequent governments that they should not be using the Emergencies Act in a situation like this.