Ewa Krajewska

3Hi, Pulat. Nice to see you.

5It's perfect.

7So this is— this was a— the CCLA launched this challenge of the government's decision to invoke the Emergencies Act within days of it being invoked. So it was invoked on February 14th, and we brought the challenge. We filed that challenge that week because the CCLA believed that the government was probably not justified in invoking the Emergencies Act. And this is a significant decision because this was the first time that a government in Canada has ever invoked this Act, and it was the first time that a court has ever ruled on the legality of invoking the Act and therefore provided guidance for future governments as to when it would be justified to invoke this extraordinary piece of legislation.

9I don't know.

11Okay, well, when you say it that way, then maybe it is. But I feel like, you know, like your cases are like your children. It's like hard to, hard to choose which one are best.

13Okay, so, you know, going back, like, during COVID I was pretty active in giving advice and educating myself on various emergency pieces of legislation. I had given advice and tweeted on social media all about, you know, especially in Ontario, the invocation of the Emergencies Act in Ontario to respond to the COVID pandemic. I was really well-versed on emergencies issues as a result of COVID And when the government invoked the Emergencies Act, I did a long Twitter thread explaining kind of the thresholds around invoking it. And at the same time, I've also had a really good relationship with the CCLA for many years. I've acted for the CCLA on various cases, including in front of the Supreme Court of Canada.

14I knew the lawyers at the CCLA. And so within days they reached out to me and said, Ewa, we wanna challenge this. We want you to be our lawyer. Will you do it? And then, you know, then I go down to Marie's office and I say, can I do this? And she says, is this an important legal question? And I say yes. And then we go, yes, we're doing it. So that, I mean, that, that's, you know, I felt very, very privileged to have the CCLA have confidence in me and in Brendan and in Matt Gorlay, who all worked on this together. We had to file the notice of application really quickly because we had no idea for how long the Emergencies Act would remain invoked for, how long the period of emergency would stay.

15And so we wanted to have a court review it immediately. I mean, that was the plan, get into court immediately. Immediately. That's not exactly how it turned out. It took a while for this to get before the court, but that was the idea.

17Correct. It had a predecessor in the form of the War Measures Act, correct?

19Yeah, so the War Measures Act was invoked in response to the crisis in Quebec, in response to this FLQ movement where cabinet ministers in Quebec were kidnapped, and I believe one of them was murdered eventually by this group. And there was controversy later about the invocation of the War Measures Act in response to that crisis. And so in the 1980s, there was a movement to modernize the Emergencies Act. And that was significant because there was a recognition that states, countries in the modern era face crises and emergencies that are not just in the form of war. Right. The War Measures Act is something that was very much, much more responsive to an older world order.

20And so the modern— our modern Emergencies Act has different criteria for different emergencies. There is a criteria for war, there's a criteria for a natural disaster, and there is a criteria for a public order emergency. So that's what we were dealing with here. It was invoking the Emergencies Act in response to a public order emergency.

23So they used similar tools, but the operative word is who is they? Okay, so what happened is during the COVID pandemic, most of the rules and regulations that were implemented pursuant to public health measures were implemented by provincial governments. So provincial governments relied on both their Emergencies Act. So each province, each province has an Emergency Act. and they relied on those. And each province also has public health acts, and they relied on those. And the federal government during the COVID pandemic had regular calls and regular contact with the provinces and discussed with the provinces whether the federal government should also be invoking its Emergencies Act. And the federal government decided that it did not have to because the existing laws and the of the provinces were sufficient to deal with the COVID pandemic.

24Obviously, the federal government also implemented its own measures. Most of those were related to immigration, citizenship, movement across borders. All the, all the border issues were implemented by the federal government, but they did that through their existing legislation. Similarly, any federal undertakings like aeronautics, planes, trains, maritime stuff, the government also did through its existing legislation. So all of the emergency measures that were implemented during COVID were just done through other pieces of legislation, and we didn't need to resort to the Federal Emergencies Act.

27Okay, so let's— so this is like a little bit of legal stuff and a little bit of factual stuff. Let's step back for a minute. So in order to invoke the Emergencies Act, the federal government has to be satisfied that the existing laws of Canada, so the laws that exist on the books or in practice, cannot address the crisis. Okay. And what the court found was that in fact, the existing laws of Canada could address the crisis. For example, the federal government said, look, we discovered weapons in Coutts. It was super dangerous. But the court says, yes, but you discovered the weapons in Coutts by exercising a warrant granted by a court pursuant to the Criminal Code, right?

28This is, you are relying on existing laws. And you're right that G20, now this is going back when I actually started practicing. I was actually kind of on standby that weekend and the CCLA, played a big role actually in the G20 and the aftermath of the G20 in terms of holding the police to account for some of the stuff that the police did, including kettling protesters at Queen and Spadina, which I think was a very, very scary thing that happened. But as you say, there was a perimeter that was created around the G20 summit at the Intercontinental Hotel. Protesters were not allowed to enter it. Instead, protesters went down Yonge Street and, and based King and Bay.

29There were cars being burned at King and Bay. There was— there were shopping centers, the Eaton Centre along Yonge Street, that were just, you know, Molotov cocktails were thrown into them. Like, it was, it was a, it was a disaster.

31I don't know. I wasn't in Ottawa. I was in Toronto, so I don't know. But like, I think the people in Ottawa felt that the honking that happened in Ottawa was violent to them. So I will, I will say that. So what happens here, I think, you know, I participated also for the CCLA at the Rouleau Commission, and a lot of this factual background really came out in the Rouleau Commission. A lot more than in the court, right? The court was not dealing with all this factual background. But at the Rouleau Commission, what became clear is that at least in Ontario and in Ottawa, once the Windsor Bridge was blocked in Ontario, the Ontario police force and the Ontario government became very concerned about these protests.

32The Ontario— the OPP helped the Windsor police clear the Windsor Bridge. And once that bridge was cleared, there was enough police power to help clear the protests in Ottawa. And I think what really the problem in Ottawa is that there were not enough police. There was not enough of a police force to deal with the protest. And, you know, going back to the G20, when the G20 was happening in Toronto, you not only had the Toronto Police Force. You also had the OPP, you had the RCMP, you had all of these police forces that were here to supposedly manage the protests. And I think the OPS just did not have the police resources to deal with it.

33One, and there was especially once the trucks actually came in and were unable to move and the police felt like they were unable to move the trucks.

35So it didn't happen for, I think, a few reasons. First, the invocation was revoked pretty quickly, like within 10 days of being implemented. So that's the first thing that happened. The second thing that happened was after the act, after the invocation was revoked, there became kind of a question of how is this going to move forward and how is this going to be scheduled? And originally we wanted to, we were canvassing dates to have the judicial review scheduled in June of, June of 2022. And the federal government and the lawyers for the federal government were saying, well, The first argument that we want to make and the first motion that we want to bring is that all of this is moot.

37And we want to schedule that first. And we resisted that. And to Justice Mosley's credit and to the credit of the federal court, he made the decision that the issue of mootness would only be decided at the actual hearing. So he was not gonna schedule a preliminary motion on mootness. So, okay, so we're gonna go for June. And then what also becomes clear is this is very unique to judicial reviews of government action, is when you bring a judicial review of any other tribunal decision, any decision of a government actor, the government actor has to produce a record of proceedings. They have to produce a copy of all the documents that the decision maker considered in making their decision.

38And here we have a problem that it's cabinet, and we have a thing called cabinet confidences. And so the government, we want production of the record that was before cabinet, and the government says we're not producing this because it's covered by cabinet confidences. We have a motion on that. We have a motion on that in the summer of 2022. And in the meantime, the Public Order Emergencies Commission is taking place, and to its credit, the federal government decides that as part of that commission process, they partially waive cabinet confidences. So they waive all the, what they call all the inputs that cabinet received in making its decision. They maintain cabinet confidence over all the deliberations of cabinet, but they decide to produce everything else.

39And so based and, you know, thankful, great. This is maybe, maybe the government has set a very good precedent for the future. That future governments will also do that, which is they will waive cabinet confidence with respect to inputs. And so as part of the commission process, we start to get all of these documents from cabinet, including text messages before, between ministers. We get lots and lots of documents and then we keep pushing for a hearing. The commission is happening. We keep pushing for a hearing. The hearing doesn't take place until April of 2023. Why? So one thing that happens is during the commission, we get all of these documents, important critical documents from the government.

40Some of these documents Justice Mosley actually appends to his decision, including a memorandum from the Clerk of the Privy Council summarizing all the information that was before cabinet in making the decision. And we say to the government, all of this information that you have produced before the commission that was before cabinet should also be before the court. It should form part of the record of proceedings. And so we bring a motion to admit that evidence so that Justice Mosley has the benefit of that evidence. The federal government resists that motion. We— it's a motion in writing. We have it heard over— we write it and argue it in writing over the Christmas holidays last year.

41But we're successful. We're successful in getting those documents before the court. And then the government says, well, if you have those documents before the court, here are these other documents we also want to file. They get to file more documents. And then we finally manage to schedule hearing dates in April of 2023. So like a lot of pieces of litigation, Pulat, there were just a lot of interlocutory motions. There were interlocutory issues, but they were really, really important issues. They were important issues around cabinet confidences. There were important issues around what should form part of the record. So even though everyone had the intention to have this heard quickly, It took, it just, it, like most pieces of litigation, it takes more time.

42Although, you know, it's not a bad amount of time, all things considered, right?

46Yeah, you know, Pulat, when you ask me that question, it makes me reflect on how the government acted very differently in the Commission than it did before the court. So in the Commission, we saw an enormous amount of cooperation by the government in producing cabinet confidences and in producing its ministers and the Prime Minister to be cross-examined in front of the Commission. Right. Ontario did not allow their ministers to be cross-examined. So you had an enormous amount of cooperation from the government. At the commission to be— for the purpose of accountability and transparency. And yet the litigation strategy of the government before the court on the judicial review was to set up these roadblocks, including on mootness, cabinet confidences, and then the record.

47Now, how hard did they resist? I mean, they made the arguments. You know, they didn't call it in. They made the arguments. I'm not sure the mootness arguments were very good arguments, but those were their instructions. That's, that's what their counsel argued. But obviously, even though the proclamation was moot, there was absolutely a bit higher interest in having this decision heard. And part of their mootness argument was, well, but the Commission's dealing with this. Justice Rouleau is dealing with this. We don't need a court to deal with this. You're not relevant to court. And, you know, our submission, which was accepted by the court, was that the Commission of Inquiry and the court play different roles, different roles in accountability, different roles in transparency.

48And they're both essential for civil liberties and the rule of law to be respected. And so it is— I don't know, like maybe one day we will find out why the government took these very different approaches to these two different processes. But they were very cooperative. I mean, very— they cooperated, like they waived cabinet confidence. It's cool. This rarely happens. I think it never happens. It never happens. Okay. They did that. It's good. And it's a good precedent for the future. And yet they were very— they were on the litigation front. They were very resistant.

50I think strictly speaking, you're right. I think both of them carry an enormous amount of weight in the public and in public opinion, but they fundamentally fulfill slightly different mandates. I mean, Justice Rouleau's mandate was much, much broader, much broader. He not only looked at the invocation of the emergency, but he was also looking at what led to the Freedom Convoy. Why were people so upset that they came out and protested? You know, what, what's the role of social media? His role is also to provide suggestions on how to improve the legislation. It's a huge fact-finding role. It's a huge investigative role. It's an inquisitorial— it's much more of an inquisitorial process. And the role of the court is different.

51The role of the court was much narrower. It was really looking at the legality of the decision, strictly speaking, and It was looking at whether the, the test for the invocation of the Act was met and how that test should be interpreted by future governments.

55So I'm not sure. I don't know. I don't really know. The Windsor Bridge was cleared before the invocation of the Emergencies Act. So they didn't— the OPP and the Ontario government were not waiting for the invocation by the federal government of the Emergencies Act. I think the Government of Ontario, once the Windsor Bridge was blocked, the Government of Ontario was deeply concerned about this, and the OPP started to make a plan very quickly to clear that bridge. I think in Ottawa, we know from the Commission that in Ottawa there were plans being made to clear Ottawa before the invocation of the Emergencies Act. You know, there was all types of issues with the leadership in Ottawa.

56The Chief of Police, Chief Sloly, resigned midway through the Ottawa police protests. A new leadership was put in place. There were, there, we know from the Commission that there were, there were plans that were being discussed and made. I think what the, the problem was the OPS didn't have enough people to do it, and so you needed all the OPP who were in Windsor to suddenly like move over to Ottawa. But the broader question, Pulat, of like when do police and when should police interfere in protest is a really, I think, complex question. We have there is a history of other inquiries and other historical facts where, like the Ipperwash inquiry, where we do not want government directing police, right?

57That is a very important line because when government directs the police, it is the government taking police authority, the monopoly of violence of the state against people in response to a protest. So the police have to be somewhat independent. They have to be independent of the government. And so when the police are reacting to a protest, they need to be doing it based on their own grounds around public safety issues, around enforcing the law. And it cannot be that the police are seen to be doing the government's bidding in quelling protest. So, you know, this case presented, I think, such a fundamental cognitive dissonance around politically, okay? Because the people who are pro— like, just generalizing, just really generalizing, The people who are protesting in Ottawa, I think many of them identify themselves as allies of the police and believing that the police do the right thing.

58Many people who— racialized minorities in the country who protest the police actually were wondering why the police was not removing these protesters and was not acting more violently, right? Like there is this— and some progressive circles were waiting for the police to enforce against the protesters, whereas those progressive circles are often the first to criticize the police, right? Like, you had this weird—

60—weird situation politically. And, you know, but what's really important is that while everybody— like, we do, as the Canadian Civil Liberties Association at the commission, we had to explore this issue of making, making sure that the government is not directing the police. We do not want that in a democracy, right? And we don't want it to be that invoking the Emergencies Act allows the government to direct the police because we don't want it to be invoked in response to political criticism of the government.

62So I'd probably put them in two buckets. Okay. The first, let's ignore mootness. Let's ignore mootness. The first issue really was, was the government justified in invoking the Emergencies Act? That's the administrative law issue. And then the second big bucket is, were the measures that the government implemented, were they constitutional or did they infringe the Charter? So those are the two big buckets. On whether the government was allowed to invoke the Emergencies Act, the government had to meet a two-part test. Essentially, there had to be a national emergency and the emergency had to pose a serious threat to the security of Canada within the meaning of the CSIS Act. So on that first point, was it a national emergency?

63The question was, and we talked about this a bit earlier, are the existing laws of Canada sufficient to deal with the emergency? Are the existing laws sufficient? Is the— are the existing— does the government have the means to deal with the emergency? And Justice Mosley said, actually, the government did. The existing laws of Canada were sufficient. The second part about threat to the security of Canada, this was a super controversial part that came about the Commission, came about at the JR, and the issue was this: the Act says, is there a threat to the security of Canada within the meaning of the CSIS Act? Within the meaning of the CSIS Act, we find out during the Commission that the Director of CSIS told Parliament, told Cabinet, that he did not believe that the Freedom Convoy constituted a threat to the security of Canada.

64And so the question became, okay, so you have CSIS saying this isn't a threat to the security of Canada, but Cabinet's saying it is. How can Cabinet come to a different conclusion of the same words and the same definition than CSIS? And what Justice Mosley says is, well, cabinet can come to a different conclusion because it can be looking at different facts. It's not bound by what CSIS says. It doesn't have to defer to CSIS, but at the same time, it has to explain what that other thing is. Here, the government really relied on the economic repercussions of the protests, the economic repercussions of the closing of the borders. And Justice Mosley says that's not good enough because the Act refers to— we refer to the CSIS Act— threats to the security of Canada have to be threats of serious violence.

65You can't expand that to economic concerns. And he's like, you know, maybe that's a good idea for law reform in the future, but you have to exercise the Act the way it's written today. And the way it's written today, it did not include economic concerns. So the court says the government was wrong, not— it was not reasonable, it was not reasonable for the government to invoke the Act. That's on the admittance stuff. On the Charter stuff, there were 5, 5, 5 rights at issue: freedom of expression, Freedom of assembly, freedom of association, right to life, liberty, and security of the person, and right to be free from unreasonable search and seizure. So we won on, we won on 2 of the 5.

67not bad,

69So,

71On Section 1, on both. So the court found that there were limits placed on freedom of expression because of the limits on freedom of protest. The court found that there was not an infringement of the rights to freedom of assembly and freedom of association because the limit that was placed was that you couldn't engage in assembly that could lead to a breach of the peace. No limit, no limit on the right to life, security of the person, but there was a limit on the right to be free of searches seizure, and that was really about the economic measures. So what happened was the economic measures said that a financial institution had to freeze the accounts of anyone who was participating in these protests.

72And we know based on the cross-examination of the RCMP that we did that what happened in practice was the Ottawa Police Service or the OPP would walk around Ottawa, identify the plates of cars that were parked in Ottawa, provide those license plates to the RCMP. The RCMP would send a list of people to the financial institutions, and the institutions would freeze those bank accounts. And you know what, Pulat, maybe you and I, because we're Eastern European, we find that all like super like, whoa, this is bad. So when the court found that it was It was bad because there was no, there was no standard in the measure as to when the police should be doing that.

73Like, what is the standard? Reasonable suspicion? Reasonable grounds? What was the standard? There was no standard. And that's the admission we got on cross-examination from the RCMP, that there was no standard. And that's just very problematic because anytime the the police is going to take any action against you in terms of search and seizure, there has to be an objective standard by which they have to comport themselves. And so, and the court also found the financial institutions were acting as agents of the state, which was, you know, maybe apparent, but I think still important. And then, yeah, we won on Section 1 that these measures weren't justified.

75Because there— so there— what that was actually, that was a bit controversial, that seizing bank accounts is not an act of search and seizure.

79So, Ajit, my, my associate Brandon Chung did all the Section 8 argument, and he obviously, he did a fabulous job on it.

81So he did all the argument on it and did an amazing job on it. And, you know, I think the— what the government was trying to say is, by just— we're not seizing your accounts, We're just holding that. It's just a hold, right? It's just a hold. We're not actually— we're not taking anything. But that was just— but you're right. There was no case law directly on point. That's why this part of the decision is a bit longer. And there's reasoning by analogy to other cases and citation of books on this. But I mean, I think it's important to say that just freezing somebody's accounts, even temporarily, I think to most laypeople does feel like a seizure because you do not have access to this now.

82You do. You're not able to, you're not able to use it, right? Like it's frozen. So I think this is a, it's a good, you know, it's probably a significant development in search and seizure law, but that's not my area of expertise. Pulat, other people will debate whether this is momentous or not.

84Well, the government announced its intention to appeal the decision. So that's gonna go up to the Federal Court of Appeal. Probably won't be heard until the fall of this year. And, you know, we'll continue to be there for the CCLA to, you know, uphold Justice Mosley's decision, and we'll see what happens. We'll see what happens from there. I assume the government will not argue that it was moot now at the Federal Court of Appeal.

86No, no, that's all I was going to say, Pulat. I agree with you. Like, it's obviously, obviously it's an important enough decision that the government's appealing it.

88So we don't have a notice of appeal yet. The notice of appeal has to be served within 30 days. And then the federal court of appeal rules are pretty— they're pretty fast on the, on the timelines. There has to be an appeal book within, I think, 60 or 90 days. And then the government files their appeal factum and we have 30 days to respond. And it hopefully will be scheduled to be heard by the end of this year.

90Thank you so much, Pulat. Always a pleasure. And thank you for having this show. I think it's a real good service to lawyers and especially to law students. And thank you for the time that you take in producing it.

92Thank you.