Constitutional challenge to Canada’s declaration of public order emergency

Jost et al v. Canada

Riot police coaches review crowd control

Constitutional challenge to Canada’s declaration of public order emergency

Jost et al v. Canada

Riot police coaches review crowd control

The Justice Centre is funding this legal and constitutional challenge to the federal government’s declaration of a public order emergency in response to the Freedom Convoy.  Counsel have filed their written argument, and the case will be heard in Ottawa on April 3-5, 2023.

On February 14, 2022, Valentine’s Day, the Cabinet of the Government of Canada declared a “public order emergency” under The Emergencies Act, the successor to the War Measures Act. This declaration dramatically transformed the festive, family-focussed, and peaceful atmosphere of the Freedom Convoy Protest on Parliament Hill into a tactical, military operation with hundreds of armed officers violently attacking peaceful protestors.  

In order for the Government’s declaration to be legally justified under The Emergencies Act, the federal cabinet must have believed “on reasonable grounds” that a there were threats to the security of Canada so serious as to be a “national emergency.”  The term “threats to the security of Canada” is defined by the Canadian Security Intelligence Service Act and means:  

  • (a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage, 
  • (b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person, 
  • (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and 
  • (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada, 

but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).  

On February 24, 2022, a legal and constitutional challenge was filed in Federal Court on behalf of four Canadians against the Government’s emergency declaration and subsequent regulations prohibiting protests and freezing bank accounts, arguing specifically that these measures:

(a) are ultra vires the provision of the Emergencies Act or any other enabling statute or instrument; 

(b) are ultra vires s.91 of the Constitution Act, 1867; 

(c) violate s.96 of the Constitution Act, 1867; 

(d) violate s.2(b), s.2(c), s.2(d), s.6, s.7, s.8, s.9, s.12 and s.15 of the Charter; 

(e) violate s.1 of Canadian Bill of Rights S.C. 1960, c. 44; 

(f) violate constitutional principles, specifically rule of law, constitutionalism, parliamentary sovereignty, separation of powers, and contractual expectations; 

(g) violate the preamble of the Emergencies Act; 

(h) violate the International Covenant on Civil and Political rights, specifically Articles 1(2), 2, 4,5 7,8, 9, 10(1), 12(1), 16, 17, 18, 19, 22(1), 26 and 47; 

(i) violate the International Covenant on Economic, Social and Cultural Rights, specifically Articles 1 (2), 2(2), 3, 4, 5, 6(1 ), 11 (1) and 25; and 

(j) violate international law obligations, specifically principles of customary international law including the general principle of the rule of law, the principle of non-discrimination, the United Nations Declaration of Human Rights, freedom from fear and international human rights norms; and

(k) violate the Vienna Convention on the Law of Treaties.   

With backgrounds in the military and firefighting, these four Canadian protestors share a sense of betrayal by the Government for invoking emergency measures to mount a needless and violent militaristic crackdown on peaceful protesters that left them fearful for their futures and the future of Canada.

Jeremiah Jost 

28 year old Jeremiah Jost, a contractor and volunteer firefighter, had seen the harm of Covid lockdowns, including the separation of his family caused by cross-border vaccine mandates.  He felt compelled to join the Freedom Convoy from Alberta to Ottawa. He wanted to stand, peacefully, for his civil and constitutional rights with the many like minded Canadians on Parliament Hill. He and his wife arrived in Ottawa on January 29, 2022. He witnessed Canadians from all over Canada united in love for Canada, and united in their concerns over the loss of their constitutional rights.  

Jeremiah described the protests as beautiful, diverse, and inclusive, and he and his wife enjoyed the dance parties, street hockey, and the family focused atmosphere, where children romped in play areas with bouncy castles. There was free food for the taking. It was the best of times until February 18, 2022.  

Interactions had been generally good between Jeramiah Jost and the police during the protest. He had joined with a group of police officers in holding a Canadian flag for a photo, and had enjoyed many conversations with officers. 

However, a marked change ensued when police began giving notices to protestors on February 16, 2022 declaring that the protest was illegal, and protestors could be charged with criminal activity. On February 18, 2022, all the exits leading to downtown Ottawa were blocked, and the police had set up check points on streets thus prohibiting people from joining the protests. 

On February 18, Jeremiah and his wife witnessed several hundred police officers in riot gear, with gas masks, tasers, batons, pepper spray, flash grenades, rifles, and horses. Snipers were positioned on the rooftops and the police were filming the protestors. Protestors were begging the police to uphold their oaths to serve and protect the people, but their pleas were ignored, and in fact they escalated their efforts by bringing in the mounted horse unit to trample protesters, including a elderly Indigenous woman with a walker.  

There were no more friendly hugs, handshakes, or photo opportunities to be had with the police, whose tactical campaign included randomly snatching peaceful protestors and taking them behind the police wall, where some were beaten and smashed with rifle butts.  

Edward Cornell 

Edward Cornell is a decorated, 64-year-old retired military veteran from New Brunswick, who had served as an auxiliary OPP officer from 2013 to 2015. He and his wife joined the Freedom Protest when the Freedom Convoy passed through Moncton on the way to Ottawa. The Cornells arrived in Ottawa on January 29, 2022 to support the protest. Proudly wearing his military medals, Edward Cornell acted as a trusted liaison between the police and the protestors.  

Edward Cornell’s experience is very similar to Jeremiah Jost. During the festive time of the Freedom Protest, he had witnessed police getting hugs from protestors. He spoke often with police officers, some who told him that they supported the protestors.  

Edward Cornell was directly affected and harmed by the Government and its use of the Emergencies Act. 

Without warning, Mr. Cornell had his bank account and credit cards frozen leaving him in a desperate financial position, and unable to pay bills that were due.  Already suffering from PTSD, the crackdown on peaceful protestors like himself by his government left him feeling terrified. He questions why his government would freeze his bank accounts and credit cards, without cause, leaving him financially vulnerable. He and his wife have difficulty sleeping because they fear that the federal government will burst into his home in the middle of the night and take their possessions.  

Cornell was a decorated soldier, a defender of democracies all over the world, who served honorably and had been willing to give his life for his country. He broke no law, yet the government treated him like a criminal, seizing his bank account and credit cards. That begs the question, what does that mean for ordinary Canadians? If the government will freeze bank accounts of decorated military veterans, who broke no laws, what else would the government stoop to do?   

Vincent Gircys 

Mr. Gircys is a retired member of the Ontario Provincial Police, an Exemplary Service Medal recipient, and former Auxiliary Liaison Officer of the Year. Mr. Gircys served as security and as a police liaison during the protests. Mr. Gircy has testified by affidavit that prior to February 18, 2022, he observed positive and cordial interactions between protesters and police, and that there was general peace and tranquillity amongst the protesters, observers, and civilians in downtown Ottawa. No potential security issues came to his attention at any time during his attendance at the protests.   

After the Emergencies Act Declaration, Mr. Gircys observed police officers in tactical gear striking protesters with the butt end of their rifles, and with 36-inch-long square edged wooden batons. Mr. Gircys did not witness anyone who had been snatched by police commit any act of violence towards police or towards police blockades. 

After Mr. Gircys’ bank accounts and credit cards were frozen, he was only able to feed himself, and make the 6 hours journey home, thanks to the generosity of kind-hearted Canadians he didn’t even know. 

Harold Ristau 

The Applicant Rev. Ristau is a reverend and associate professor at Concordia Lutheran Theological Seminary, a former Canadian Armed Forces chaplain, and a retired officer with Canadian Special Operations Forces Command. Rev. Ristau led prayers at the National War Memorial and the Tomb of the Unknown Soldier during the Freedom Convoy Protests in Ottawa. He has suffered significant personal and professional consequences as a result of the emergency measures taken by the Government of Canada.  Subsequently, Rev. Ristau received threats to his life for his participation in the Freedom Convoy.  

Only seven days before the invocation of the Emergencies Act, an Ontario superior court judge had already ruled that the “Defendants and other persons remain at liberty to engage in a peaceful, lawfu,l and safe protest.” 

Despite this court ruling, the Government of Canada felt compelled to run roughshod over the fundamental rights of the Canadian people by violating the preamble of the Emergencies Act, s. 91 of the Constitution Act, 1867, the Charter of Rights, and the Canadian Bill of Rights as if the supreme law of the land is just an inconvenience to be ignored. 

Jeremiah Jost, Edward Cornell, Vincent Gircy and Harold Ristau are not criminals, nor are they terrorists. As Canadians, they have served their communities and their country well. They recognize the importance of representing Canadians in a constitutional challenge with the government, reminding the government that Canadians are protected by the supreme law of the land – the Constitution. There has never been a more important time in our lifetimes for Courts to reign in the government and prevent the unjustified claiming of an “emergency” to trample on the rights of Canadians. 

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