January 25, 2024 - 7:00am

For those who have watched or, worse, lived through the onslaught on civil liberties in Canada since the pandemic, there was little sign that the tide would turn. But finally, a major and unambiguous win has been delivered. Yesterday, the country’s Federal Court ruled against the government in a case challenging its February 2022 invocation of the Emergencies Act. The judge hearing the case brought by civil liberties groups and two individuals declared that the government overstepped constitutional boundaries in annulling foundational rights, including freedom of expression. 

To many, this decision came as a surprise because most judicial rulings had been in favour of the government. For example, a recent case against the travel vaccine mandate was dismissed by the Federal Court, which declared it “irrelevant” as the mandate has since been lifted. With regards to challenging the Emergencies Act, the equivalent of martial law in Canada, hope was previously vested in a government inquiry into the use of the act. But it was another major disappointment: the Justice tasked with the inquiry deemed that the government had been justified in its invocation of the Emergencies Act over the Freedom Convoy.

This week’s ruling was, if anything, begrudging. The Justice showered the government with sympathy, going as far as stating that he would have likely been in favour of invoking the Act as well if had he been part of the government. Nonetheless, the final decision was clear: the invocation of the Emergencies Act, as with all subsequent actions, represented an egregious and unconstitutional abuse of power.

The decision by the Federal Court may represent novel avenues for affected individuals to sue the government for damages it unconstitutionally afflicted on them. But the bigger significance of the decision lies in the effect that it will have on public opinion. With Canada’s major media outlets sustained by government funding, the media has generally been friendly to government actions, especially during the days of the Freedom Convoy. But now the formidable and respected Canadian judiciary has made a clear and unequivocal ruling that the government acted unlawfully. If this is not a vindication of the protests’ message, it is at least a vindication of citizens’ rights to use the small batch of options they have to challenge executive power — that is, to protest.

Over three years, governments have acted with impunity as they have enacted laws that caused citizens to lose access to their families and livelihoods over declining a vaccine that didn’t even stop the transmission of Covid-19. The political structure of the Canadian government is such that the executive branch, merged with the legislative branch, has wide-reaching powers to decide laws and use the force of law to apply them. Once a government has won its four-year mandate, there is little that citizens can functionally do to oppose these decisions. As we saw during the pandemic, governments are willing and able to go very far as long as they think that their decisions are sufficiently popular with key voting bases.

The Canadian government immediately announced that it will appeal the decision, so it remains to be seen if this victory will be temporary. But should the decision stand, it will act as a powerful disincentive for future governments to invoke such draconian actions against peaceful protestors. This, for Canada at least, is a major victory for civil liberties.

Leila Mechoui is a columnist for Compact.