{G} overnments everywhere did many absurd and unaccountable things during the Covid pandemic, but one, at least, is now being held accountable by the courts. In Canada, the Federal Court has ruled that the Trudeau government’s invocation of the Emergencies Act in response to the 2022 Freedom Convoy protests was unreasonable, unjustified, and unconstitutional.

Christine Van Geyn of the Canadian Constitution Foundation (CCF), a Calgary-based public-interest organization that alongside other civil-liberty groups mounted a legal challenge against the use of the Emergencies Act, called the Federal Court decision “a complete repudiation of the government’s position and a massive political humiliation for the Liberals” and “extremely gratifying for Canadians of all political stripes who understand the value of public protest and the dangers of governments using a massive sledgehammer to shut them down.”

Some background: The Freedom Convoy was a large and disruptive protest movement, across Canada in January and February 2022, against pandemic restrictions in general and particularly the federal government’s decision that cross-border truckers would no longer be exempt from border restrictions on unvaccinated travelers. The protest in downtown Ottawa at its peak had an estimated 500 trucks and as many as 18,000 protesters, and carried on at a smaller size for weeks, subjecting residents to incessant noise, including truck honking, and pollution from idling vehicles. Other demonstrations took place in border towns, with blockades in Windsor, Ontario, and Coutts, Alberta. The Ottawa protest was generally badly managed by police, but eventually authorities were able to remove the protesters blocking border crossings in Windsor and Coutts and end the Ottawa protest.

The police were right to end those protests, but the question as to the government’s use of the Emergencies Act is another one altogether. The Emergencies Act is an extraordinarily powerful law to be used only as a last resort and when national security is threatened. As Joanna Baron (also of the CCF) and Van Geyn explain in their book Pandemic Panic, “the Emergencies Act creates a de facto constitutional amendment that hands the federal cabinet the most expansive executive powers known to Canadian law.” The federal cabinet can unilaterally declare a public-order emergency and gain “the power to create new criminal offences and police powers, without recourse to parliament, advance notice, or public debate.” Only when there is a “national emergency” that existing law cannot deal with can the Emergencies Act be used, they explain.

However, as Justice Richard Mosley of the Federal Court stated, the proclamation that an emergency “exists throughout Canada” at the time was “an overstatement of the situation known to the Government.” Moreover, “due to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort,” but “the evidence is clear that the majority of provinces were able to deal with the situation using other federal law.” And hence the conclusion that invoking the Emergencies Act did “not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration.”

Both the use of the Emergencies Act and the Federal Court ruling have long-term implications. With respect to civil liberties, the main long-term effect of aggressive pandemic restrictions in general and the use of the Emergencies Act in particular is to permanently reduce liberties by emboldening future government overreach. The Emergencies Act and its predecessor, the War Measures Act, had been used only three times previously: in World War I, World War II, and the 1970 October Crisis during which Quebec militants kidnapped a provincial cabinet minister (and murdered him) and a British diplomat (later released). The Freedom Convoy presented a much lower threshold for invoking the Emergencies Act, and once a line is crossed it cannot be uncrossed.

The increasing trampling of civil liberties and permanent government growth is a tendency known as the “ratchet effect,” observed by Robert Higgs and explained in his book Crisis and Leviathan (1987). As he wrote in an article with Don Boudreaux in 2020, “the growth of government that attends national emergencies is not surrendered fully when the crisis ends. Instead, a ratchet effect operates whereby much of the crisis-borne growth of government becomes institutionalized in agencies and practices and, more important, in the dominant ideology of political elites and the general public.” The Federal Court’s ruling that the use of the Emergencies Act was illegal will hopefully curtail some of this effect, but the government has nevertheless been emboldened to apply a lower threshold for massively expanding its powers in the future.

A second possible long-term impact of the Federal Court ruling is that it may negatively affect the Trudeau government’s popularity. But despite having egg on its face and suffering a significant legal defeat, the Liberals are unlikely to suffer any serious negative political consequences. Like Donald Trump, the Trudeau Liberals have so often behaved in so unaccountable a fashion and created such negative results that the latest outrage is unlikely to move the needle much. This is a government, after all, whose recent vote at the U.N. on the Israel–Hamas war received praise from Hamas, and which has received international ridicule for making free feminine-hygiene products available in men’s washrooms in federal buildings and for instructing federally regulated workplaces to do the same. The government’s economic policies have collapsed business investment and resulted in close to zero cumulative real GDP per capita growth since the Liberals took office in the third quarter of 2015.

That is to say, those Canadians who still support the Trudeau government today will not be much bothered by their illegal trampling of civil liberties. The main long-term effect of this illegal trampling will therefore be to encourage more trampling by governments in the future — an effect hopefully reduced by the Federal Court’s ruling.