Upholding the Law Without Fear or Favour

Justice Richard Mosley is an honest man.

Click image to see tweet on Twitter/X.

A few hours after the release of Justice Richard Mosley’s ruling on the Emergencies Act this past Tuesday, Blacklock’s Reporter quoted its managing editor, Tom Korski. In his words, Freedom Convoy protesters had “finally found a friend. He’s a 74-year-old judge appointed by Liberals. He looked at the evidence and said this is wrong” (bold added).

Having read the lengthy court ruling in its entirety, I gently beg to differ. It was the rule of law that found a friend, not the truckers. Justice Mosley’s decision is openly hostile to the protesters in numerous places. (More on that later.)

But he’s an honest man who understands that the courts are our safeguard against government tyranny. He performed his duty even though it would have been easier to shirk it.

The courts failed us during the pandemic. Again and again, they looked the other way as various levels of government trampled all over us.

The Charter was a common theme on protest signs in Ottawa. Truckers displayed copies of it, in both official languages, in their front windows. Large numbers of Canadians expressed alarm that freedoms they’d considered inalienable had been obliterated by a virus.

Justice Mosley disagreed with government lawyers who said there was no need to even hold a hearing, since the Public Order Emergency was in place for nine days only and was long over. It’s all moot, said the government. Old news. Ancient history.

But Justice Mosley was concerned about the big picture. In his words:

If the Court declines to hear these cases, a precedent may be established that so long as the government can revoke the declaration of an emergency before a judicial review application can be heard, the courts will have no role in reviewing the legality of such a decision. [bold added, paragraph 149, page 51]

Pointing out that the Emergencies Act gives the government extraordinary powers “including the power to create new offences…and the power to act in core areas of provincial jurisdiction without provincial consultation or consent,” the judge said it’s important for the courts to perform the oversight role those who’d written the Emergency Act clearly intended.

Government lawyers emphasized the economic disruption caused by the associated border protests - as did Deputy Prime Minister Chrystia Freeland on Tuesday, when she said the decision would be appealed. But economic harm is not considered an emergency under the Emergencies Act.

In Justice Mosley’s words: “The Court can only apply the law as it finds it. It has no discretion to do otherwise.”

A few pages later, he says that while he may disagree with some aspects of how emergencies are defined in the legislation, “the Court cannot rewrite the statute and has to take the definition as it reads.”

There’s reason to feel hopeful in the wake of Tuesday’s ruling. In some Canadian court rooms, justice continues to prevail. We haven’t wholly turned into a banana republic.