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Judge dismisses bid to halt federal emergency measures, calling issue moot

Group had asked for an injunction to stay Liberal use of the emergencies law and associated measures
People listen to a sermon delivered by a pastor from the back of a flatbed truck parked on Wellington Street in front of Parliament Hill as a protest on Sunday, Feb. 6, 2022. THE CANADIAN PRESS/Justin Tang

A judge has dismissed a group’s bid to halt federal use of the Emergencies Act, saying the matter is moot because the Liberal government has already revoked the powers used to quell protests.

Federal Court Justice Richard Mosley ruled against Canadian Frontline Nurses and member Kristen Nagle, who asked for an injunction last month to stay federal use of the emergencies law and associated measures while their full case plays out.

The organization opposes what it sees as “unreasonable” COVID-19-related mandates and restrictions that have been implemented by various governments.

The group and Nagle, who supported the anti-government protests, ultimately want the court to rule that the Liberal government strayed beyond its jurisdiction in declaring a public order emergency, saying the move was unconstitutional.

Police have said they used tools and authorities made available through federal invocation of the law to end the three-week occupation of Ottawa by protesters and many large trucks.

The emergencies law allowed for direction to banks to freeze assets, and Canadian Frontline Nurses expressed concern that members were at risk of prosecution, or of having their accounts and credit cards restrained, even after revocation of the emergency orders, Mosley noted.

“Nagle’s evidence was, at best, speculative about the possible economic harms that might befall the organization and herself,” Mosley said in his ruling.

“There is no evidence that she qualified as a ‘designated person’ who might have been targeted for application of the financial measures.”

Some unidentified people at the protests in Ottawa had told her that their bank accounts were frozen after the Emergencies Act was invoked, Mosley said.

Aside from the inadmissible hearsay aspect of this statement, it falls short of establishing clear and non-speculative irreparable harm, he added.

In any event, before the group’s stay motion could be heard, the proclamation of a state of emergency was revoked, as were all orders and regulations made pursuant to the proclamation, Mosley said in the ruling.

“As a result, the motion is moot and must be dismissed.”

The question of whether the broader, underlying application for judicial review of federal use of the emergencies law “may proceed to a determination on its merits, notwithstanding revocation of the proclamation and orders, will be decided at a later date on the basis of a fuller evidentiary record and submissions by the parties,” the ruling said.

“This motion order does not address that question. Nothing in these reasons should be construed as a finding in relation to the merits of the underlying application and whether it may still be heard and determined.”

Mosley said the group and Nagle are not entitled to reimbursement of costs for a motion that was “doomed to failure from the outset.”

However, he left the settlement of costs open until the broader case is concluded.

The group’s case is one of several before the courts seeking review of the federal use of the Emergencies Act.

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