National Post (National Edition)
Emergencies Act wasn't the only sledgehammer
Invocation of the Emergencies Act to end the truckers' protest in Ottawa shocked civil libertarians here and around the world. A proposed class action started by Ottawa residents Zexi Li and Geoffrey Devaney and the Happy Goat Coffee Company may be just as disturbing.
All class actions, in which plaintiffs make a civil claim for damages on behalf of a larger group, must be court-certified to go ahead; this one isn't yet. Even so, in preliminary hearings beginning Feb. 17, the plaintiffs got an extraordinary “Mareva” injunction, named after a ship-owning company that long ago chased after the charter fee for a ship, then far away on its contracted journey. It is a court order not to move or use identified assets such as money or ships or other property pending trial. Cryptocurrency donations to the Freedom Convoy were frozen — a private seizure, not made under the Emergencies Act.
Mareva orders are typically used against nonresidents with few assets at risk in the jurisdiction. They are a drastic, “extraordinary”, remedy designed for emergencies. Yet this one came easily, after an ex parte hearing in which the defendants weren't present or even notified of the risks they faced.
Normally, a Mareva injunction requires plaintiffs to give undertakings to the court to pay damages if the injunction proves to be wrongly issued on the plaintiff's one-sided representations. But Justice Calum MacLeod of the Ontario Superior Court waived the undertaking, citing cases with a human rights or public interest dimension. In this case, however, the human rights and public interest dimensions should protect the defendant-protestors, not the plaintiffs, and require an undertaking to be given, not waived.
The lawsuit claims over $300 million for private and public nuisance and punitive damages. This seems like a figure meant more to intimidate than compensate, especially given that businesses affected by the protest have already received federal government compensation of $20 million. The truckers were opposed to lockdowns, after all. If anyone should be sued for economic losses from lockdowns, it's the governments imposing them, not people opposing them.
No one has impunity to protest government policy by abusing rights or property (toppling statues comes to mind). But as Justice Hugh McLean said in his no-honk order: “provided the terms of this Order are complied with, the Defendants and other persons remain at liberty to engage in a peaceful, lawful and safe protest.”
A moderately experienced lawyer will see a host of reasons why this class action won't be certified and, in any case, likely would fail both on the merits and procedurally. This apparent lack of viability makes preliminary, extraordinary ex parte orders ill-advised. Perhaps viability wasn't a primary concern, however: the suit looks like a form of lawfare (law+warfare), a “strategic lawsuit against public participation,” or “SLAPP,” intended not to redress the specified legal dispute but to thwart protest.
Ontario's Protection of Public Participation Act provides for dismissing strategic lawsuits that attack free expression in the public interest — quickly, and with full costs. The Court might therefore have been more sensitive to the political and Charter dimensions of the case and not so quick to accommodate the plaintiffs, especially since, as the Court itself noted, the government was also engaging in asset-freezes, even appearing before the Court to threaten civil forfeiture proceedings (a ruling that the cryptocurrency amounted to proceeds of crime and should be forfeited to the government). But the truckers were engaged in free expression on fundamental matters including violation of bodily integrity and withdrawal of freedoms to travel and earn a living. Our courts should not abet its suppression.
The defendants are Canadians. Their livelihoods and assets are here. While they acted responsibly to protect donated funds, there was no evidence they were fleeing or hiding or dissipating their assets. These aren't circumstances for a Mareva order. The dispute itself was about the fact that the protesters have expensive assets — trucks — that were all too present! Why, then, go after cryptocurrency donations, which, as the judge acknowledged, might be challenged as not even belonging to the protesters themselves, and which were donated in good faith for peaceful protest? Such asset seizures on private initiatives harm Canada's reputation as a safe place to invest. They could also obviously be used against protestors on the left whose actions arguably harm others.
Perhaps the issue was bias against the Freedom Convoy: the Court did advert to “allegations of racism, white supremacy, desecration of monuments, implied threats of violence.” When MPs, including cabinet ministers, the prime minister and the NDP leader, coldly retail grave but specious accusations from the privileged protection of the House, courts hear. This government's willingness to resort to violence and calumny to stifle opposition to its policies is chilling — and all the more reason for courts to resist.
As one American jurist warned, “The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit.” There is little if any precedent for civil liability for peaceful protest, at least in Canada. The courts should be extremely cautious before extending it. This Mareva injunction should be vacated and the defendants and donors returned their cryptocurrency. Otherwise, the court is at risk of stifling fundamental rights of protest through an order that amounts to an unreasonable seizure.