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Safety - Emergencies Act (Canada). Jonker v. Township of West Lincoln
In Jonker v. Township of West Lincoln (Div Court, 2023) the Divisional Court, in the course of a motion to add a municipal Integrity Commissioner to a JR, considered the federal Emegencies Act here in the context of the recent trucker's protests:[49] The Commissioner reasonably determined that the demonstration had become unlawful by the time the Government of Canada invoked the Emergencies Act on February 14, 2022. Further, the Commissioner concluded that the applicant breached the Code of Conduct by his continued participation in the demonstration after it was declared unlawful. The Commissioner did not make a determination as to whether the applicant breached the Code of Conduct for his participation in the demonstration prior to the date the Emergencies Act was invoked.
[50] In this case, the Commissioner did not have the option to conclude that the Government of Canada’s decision to invoke the Emergencies Act was wrong. That conclusion – questioning the appropriateness of a Cabinet decision from a different level of government concerning a matter wholly outside the scope of the Integrity Commissioner’s mandate and enabling statute and bylaw – would have been plainly ultra vires the Commissioner. In that context, it was the only reasonable conclusion open to the Commissioner at the time.
[51] As the Commissioner stated to Council and the applicant at the meeting on July 18, 2022, should a court ultimately deem the demonstration to have been lawful even after the invocation of the Emergencies Act, it would then be open to Council to reverse, revoke, or amend its decision to impose penalties and remedial measures on the applicant.
[52] Second, it was not open to the Commissioner to consider whether the Government of Canada’s invocation of the Emergencies Act, and the related designation of the protest as unlawful, limited the applicant’s Charter rights. At its highest, the applicant’s argument appears to be that his Charter rights prohibited the Government of Canada from declaring the demonstration unlawful by invoking the Emergencies Act, and that the Commissioner’s Report is unreasonable to the extent it accepted the constitutionality of the legislation. As mentioned, given the Commissioner’s limited role or scope of review, it would have been ultra vires the Integrity Commissioner to conclude that a Cabinet decision – from a different level of government regarding a matter outside the scope of the Integrity Commissioner’s mandate and enabling statute – was unconstitutional.
[53] Indeed, it is left for another day and forum wherein a court of competent jurisdiction will be in a position to decide whether the Government of Canada’s decision to invoke the Emergencies Act was legal or appropriate and at what point the demonstration ceased being lawful.
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