⚖️ Emergencies only

Federal Court vs Public Order Emergency Commission. Who got it right? Plus AI-hallucinations hit home, BC lawyer’s pseudo-legal lawsuit gets tossed, and ICJ imposes interim measures

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TODAY'S DOCKET

6 min read

  • Federal Court and Public Order Emergency Commission disagree about the treatment of convoy protests

  • AI hallucinations hit home

  • BC lawyer’s pseudo-legal lawsuit gets tossed

  • Hamilton lawyer no longer facing contempt citation

  • ICJ imposes interim measures

CIVIL LIBERTIES

Federal Court says no leeway for public order emergencies

Convoy of trucks parked on city street at dusk. Neogothic buidlings in background

When can the federal government declare a public order emergency? We now have two different conclusions about whether the 2022 convoy protests fit the bill. Through the Public Order Emergency Commission, Justice Rouleau said: “Reluctantly, yes”. This week, Justice Mosley of the Federal Court said: “No, and it’s not even something reasonable people can disagree about.”

The government is appealing the Federal Court decision. In the meantime, here’s a look at where the two assessments parted ways.

Public order emergency: Cabinet’s emergency declaration was a response to the occupation of downtown Ottawa and border blockades across the country. That empowered the federal government to do things it normally can’t do — like freeze bank accounts and banish people from certain places. But Cabinet can’t just go around declaring emergencies willy-nilly. To lawfully use the Emergencies Act, Cabinet needed to reasonably believe the situation was both national in scope and a threat to Canada’s security.

National scope: If the provinces have the capacity and authority to solve a problem, the federal government can’t swoop in with the Emergencies Act.

  • The Commission said the provinces didn’t have the capacity and authority to solve the problem because the protests were mobile and evolving. The provinces didn’t have the power to shut down the movement as a whole.

  • Justice Mosley was more focused on individual protests. He said the provinces were doing just fine using their existing powers to break up blockades and could shut down new protests as they cropped up. Even in Ottawa, where the situation was most out of hand, Ontario seemed to have the tools to solve the problem and just hadn’t used them.

Security threats: Based on the statutory definitions, Cabinet needed to reasonably believe there were threats or acts of serious violence, carried out to achieve a political or ideological objective. It didn’t matter whether the violence was against people or property, but it needed to be serious.

  • For the Commission, Cabinet had enough information to reasonably believe there was a threat of serious violence. Extremist groups had threatened public officials and protesters were getting more volatile.

  • Justice Mosley wasn’t as willing to leave it up to Cabinet’s beliefs, saying there’s only one right answer — either there were threats of serious violence or there weren’t. And in his view, the threats of violence were “vague and unspecified”, which wasn’t enough.

Next stop, FCA: On appeal, the federal government has more to overcome than just the “public order emergency” ruling. Justice Mosley also held that Cabinet’s emergency measures violated the Charter. Restricting gatherings violated freedom of expression, and freezing assets without lawful grounds violated the right to be free from unreasonable seizure. The government couldn’t justify either infringement.

A litigator’s nightmare: Justice Mosley had lots of nice things to say about counsel for the federal government, the Canadian Civil Liberties Association and the Canadian Constitution Foundation. But that fondness didn’t extend to everyone. Here’s a comment no litigator wants to see about their conduct in a reported decision:

During the hearing in April 2023, the Court was offended by the behaviour of lead counsel for Nagle/CFN. Despite repeated instructions to address the issues, counsel repeatedly made inappropriate and offensive political statements. These grandstanding remarks were clearly intended to play to the audience observing the hearing remotely. I will note that junior counsel for Nagle/CFN, who presented argument in reply to the Respondent later in the hearing, did not engage in the same misconduct.

Apart from these concerns, having reread their memorandum of fact and law and the transcript of their oral submissions, I am satisfied that Nagle/CFN bring nothing of value to these proceedings.

2024 FC 42 at para 184

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HEARSAY ROUNDUP

Canadiana

🥸 We had a good run, but AI-generated citation hallucinations have finally made their way to Canada. Lawyers in BC say they encountered fake citations filed by opposing counsel. The lawyer who filed the materials apparently told the Court she didn’t understand the risks of ChatGPT — which means she must not have read the BC Law Society’s recent guidance.

😮‍💨 The Hamilton defence lawyer who refused to write a pre-trial memo is no longer facing a contempt citation. The judge withdrew the citation after the case moved to the Superior Court of Justice. The Federation of Ontario Law Associations published a statement taking the position that the judge never had the authority to issue the citation in the first place.

🥾 Naomi Arbabi’s lawsuit was dismissed last week. She’s the (currently suspended) BC lawyer who filed a personal lawsuit based on pseudo-legal arguments. The Court also awarded special costs against her.

😷 Quebec’s Superior Court authorized a class action that alleges the provincial government caused outbreaks and deaths in long-term care homes by failing to properly manage COVID-19.

Beyond the border

🌏 The ICJ agreed to impose interim measures in the case alleging Israel is committing genocide in Gaza. The Court granted most of the measures South Africa was asking for but stopped short of telling Israel to end its military operation altogether. The ICJ’s full decision is available online.

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