Canada is normally so mild-mannered that our biggest recent national scandal involved the House of Commons rising to greet a Ukrainian war veteran whom the Speaker introduced as a hero “who fought against the Russians” and politely applauding before realizing in horror that fighting “against the Russians” meant alongside the Waffen-SS. But for a few fevered weeks in the winter of 2022, on the heels of two years of suffocating vaccine passports, lockdowns, and travel restrictions, the whole country—citizens and government—went a little crazy. Hundreds of big rigs calling themselves the Freedom Convoy left their respective provinces and assembled alongside bouncy castles, hot tubs, barbecues, and nightly merriment outside the Parliament building in downtown Ottawa, driving local residents crazy and leading Justin Trudeau’s Liberal government to declare a national emergency to get them gone.

　　Almost two years later, cooler heads have prevailed. Richard Mosley, a judge of the Federal Court of Canada with extensive national security expertise, has issued a decision definitively striking down the first-ever invocation of the Emergencies Act as unlawful following an application for judicial review brought by the Canadian Constitution Foundation and Canadian Civil Liberties Association. In addition to declaring the invocation of the Act unlawful, Mosley found that measures taken pursuant to it, like freezing bank accounts without a warrant or other judicial authorization and giving police broad powers to ban peaceful protests, were unconstitutional.

　　The exigencies of real or perceived emergencies normally lead judges to adopt an extraordinary posture of deference to elected officials and the executive branch who, after all, have to make highly context-dependent determinations of which course of action to follow. The decision is particularly notable in Canadian constitutional law, where for three years, lockdowns, draconian capacity limits on religious attendance, vaccine passports, travel mandates banning unvaccinated people from travelling on planes or trains, requirements to stay in quarantine hotels—even 8 p.m. curfews—were largely sanctioned by judges.

　　Expectations for Justice Mosley’s decision were muted following the release last February of the Public Order Emergency Commission’s non-binding report based on weeks of hearings in Ottawa which featured extensive testimony from cabinet ministers and Prime Minister Trudeau himself, who said he was “serene” about his decision to invoke the Act. In that report, Justice Paul Rouleau concluded that the decision to invoke the Act was reasonable but hastened to add that “reasonable and informed people could reach a different conclusion than the one I have arrived at.”

　　The government, in its courtroom submissions, urged Justice Mosley to exercise extreme deference to cabinet’s interpretation of Emergencies Act. The government argued that “an extraordinarily high degree of deference should be given to Cabinet because of its status “at the apex of the Canadian executive developing policy in many disparate areas.” They argued that such decisions are “quintessentially executive and should be very difficult to set aside.”

　　Although he was sympathetic to the deference argument, Mosley performed a muscular reasonableness review of the government’s decision based on the requirements of the Emergencies Act statute itself. The text of the EA imposed clear hurdles that the government was unable to plausibly clear. The statute itself was written in such a way as to express clear statutory limits to the executive as they contemplated unlocking the tremendous powers unlocked by the Act. In the historical context, this makes sense: the Act replaced and updated the War Measures Act, an earlier law that had allowed the government to place Japanese Canadians in internment camps during the Second World War and that had seen Pierre Elliott Trudeau, Justin Trudeau’s father, arrest hundreds of innocent people in 1970 and hold them without charges on the pretense that he was facing an impending insurrection by the radical terrorist group the Front de libération du Québec.

　　To ensure the decision to invoke the Act was supported by the objective presence of “threats to the security of Canada,” the Act incorporates the language of the Canadian Security and Intelligence Services Act’s meaning of “threats,” specifying that the threshold is the same. As Justice Mosley ruled, the law refers only to the CSIS Act definition of a “threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”

　　Mosley rejected the government’s argument that they could ignore the barrier of the CSIS Act definition being built into the Act and substitute their own. The government’s theory was that Cabinet was entitled to arrive at its own understanding of what the threshold said and required—an assertion that would seem to obviate the need for the law to be drafted as it was. Part of this theory, as outlined in the government’s declaration, was that the protest in Ottawa and related border blockades which were mostly being cleared using regular policing powers by the time of invocation were harming Canada’s economy.

　　The Act also specifies that, in order to be invoked, no other law in Canada must be able to effectively respond to the purported emergency. The government put a lot of weight on “effectively,” suggesting that even if other laws were available, it was within Cabinet’s discretion to determine that they might not operate quickly enough to resolve the crisis.

　　Judicial willingness to apply the rigorous standard demanded by the statute for invoking emergency powers is a welcome change in Canada.

　　Indeed, the Convoy saw a catastrophic breakdown in effective policing. Ottawa Police Chief Peter Sloly had already declared on January 30, 2022, in a city council meeting, that “there may not be a policing solution” to the ongoing détente with Convoy trucks, which seemed to be settling into the downtown core for a prolonged occupation. But Justice Mosley rejected policing incompetence as a rationale for going nuclear: “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.”

　　Judicial willingness to apply the rigorous standard demanded by the statute for invoking emergency powers is a welcome change in Canada. Justice Mosley’s decision stands in stark contrast to a recent refusal of Ontario’s highest court recently to hear Jordan Peterson’s appeal of the College of Psychologists’ decision to discipline him with mandatory coaching after receiving complaints that some of his tweets, which had nothing to do with the practice of psychology, were offensive. The decision evinced the heavy deference to administrative decision-makers that is in vogue in courtrooms in Canada as well as the US.

　　The Liberal Party’s top brass responded to the release of Justice Mosleys 190-page decision immediately, not even granting the traditional waiting period to give the appearance of actually reviewing the judicial reasons before pledging to fight them in court. In a press conference just minutes after the decision’s release, Deputy Prime Minister Chrystia Freeland reprised the contention that the threat of economic harm posed by the Convoy and the border blockades justified invocation. This is an assertion that was thoroughly rejected by Mosley. The Act, he pointed out, is clearly directed at threats of physical violence to persons or property, and economic disruption is excluded.

　　In his comments on the decision, Minister of Public Safety Dominic Leblanc referred to the danger posed by a weapons cache that was found in Coutts, Alberta, near the border with Montana. But that situation had already been effectively cleared by federal and provincial police in advance of the Act’s invocation— a factual finding that will be tough to overcome on appeal. Justin Trudeau has not yet commented.

　　But fighting the decision is a political imperative for the Liberals. The invocation of the Act is forever burnished into Trudeau’s legacy, and though a majority of Canadians supported it at the time, a Federal Court ruling that it was an overreach and violation of rights will no doubt harm his government’s credibility. The Liberals are currently flopping in the polls, with Pierre Poilievre’s Conservative Party ahead by as much as seventeen points. Their current communications strategy appears to be to run against Donald Trump, warning Canadians that Poilievre, a moderate populist, poses a Trump-like threat to the country. But it’s hard to see how trotting out Trump as a bogeyman will save them now that Justice Mosley has ed their government panicked and violated the Constitution.