Trucks block a downtown Ottawa road as truckers and supporters take part in a convoy to protest the COVID-19 vaccine mandates for cross-border truck drivers. CNS photo/Patrick Doyle, Reuters

Freedom the winner in convoy ruling, lawyer says

  • January 31, 2024

After a rash of “very poor” judgments in recent years, John Carpay was “happily surprised” the Federal Court of Canada ruled on Jan. 23 that Justin Trudeau’s government was not justified in using the Emergencies Act against the Freedom Convoy protest in 2022.

“It was a wonderful departure from some very poor recent judgments that have come in 2023 and 2022 where judges have just lowered the high standard of the (Canadian Charter of Rights and Freedoms) to make it easy for governments to violate our rights and freedoms,” said Carpay, president of the Justice Centre for Constitutional Freedoms (JCCF). “This ruling was a proper application of the law. The facts made it pretty clear that the government was not complying with the Emergencies Act when they invoked emergency powers 23 months ago.

The JCCF represented four Canadians who joined the protest in Ottawa in January and February 2022. After the federal cabinet invoked the Emergencies Act on Feb. 14, the JCCF stated that “each of the plaintiffs suffered significant harm during the militaristic police crackdown that began on Feb. 18, 2022.” Two had their bank accounts frozen and seized “without judicial authorization or a review process, under laws that normally apply only to terrorists and enemy nations.”

The Canadian Civil Liberties Association (CCLA), the Canadian Constitution Foundation (CCF) and Canadian Frontline Nurses led the charge on behalf of citizens who participated in the Freedom Convoy’s fight against COVID-19 vaccine mandates and restrictions.

The JCCF represented a number of houses of worship that ran afoul of COVID regulations, and over the past month continued its record of resolving cases — mostly successfully — filed against them for defying COVID-19 gathering restrictions.

The latest outcome on behalf of Trinity Bible Chapel’s religious leaders was mixed. The pastor and church elders of the Waterloo, Ont., church hosted six services between January and June 2021, with crowds exceeding gathering restrictions of 10. Pastor Jacob Reaume and five church elders faced 78 charges, many carrying a minimum $10,000 fine upon conviction.

The Ontario Superior Court of Justice and Court of Appeal both defended the constitutionality of the Reopening Ontario Act. In August, the Supreme Court of Canada refused to hear the appeal. However, JCCF did secure an agreement last month that would stay all the charges and the chapel would have one year to pay a $38,800 fine.

Despite his clients being “happy to finally put these tickets and events behind them,” JCCF lawyer Chris Fleury decried the “Ontario courts’ failure to protect and uphold religious freedom.”

The JCCF has achieved outright success in other religious freedom cases. The most consequential victory was Ingram v. Alberta last August.

The Court of King’s Bench of Alberta ruled to invalidate the public health orders of Dr. Deena Hinshaw, the former chief medical officer of health (CMOH). Hinshaw testified at trial that pandemic public health orders were issued and decided by the Government of Alberta cabinet instead of the CMOH. According to the Public Health Act, the CMOH must be the final decision maker. This led to the ceasing of ongoing prosecutions against Pastor James Coates of GraceLife Church of Edmonton and Tim Stephens of Fairview Baptist Church in Calgary.

The great hope of the JCCF and other groups who believe the Charter was trampled upon during the pandemic is if there is another global health emergency, Canadians will better protect their civil liberties.

“I think if governments try lockdowns in the future, even if you still have a majority complying, the minority of non-complying people will be much larger,” said Carpay. “If the non-compliance rate is under one per cent, you can target and hunt down the various small number of people not complying. But if the non-compliance on face masks, social distancing, capacity limits, religious services or outdoor protests is more than 10 per cent, enforcing those measures will be next to impossible.”

The federal government, however, is not done fighting back against the most recent ruling. Deputy Prime Minister and Minister of Finance Chrystia Freeland vowed the government will appeal the ruling.

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