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Writer's pictureUlfa Ismail
Apr 26 min read

UNFOLDING: The Judicial Challenging of the Emergencies Act



By: Ulfa Ismail


Will the 2022 invocation of the Emergencies Act withstand judicial contentions?


Background

In 1988, the Emergencies Act was adopted as a new piece of federal legislation. The act allows the Canadian federal government to exercise temporary measures and enforce certain regulations in situations defined as a “national emergency”. As per the Emergencies Act, a national emergency can be defined as (1) a public welfare emergency (2) a public order emergency (3) an international emergency and (4) a war emergency. In all four types of emergencies, the health and safety of Canadians or Canada’s sovereignty, security and territorial integrity, must face a high level of risk for the federal government to invoke the Emergencies Act. Measures that the government may use include prohibiting blockades in certain areas (such as borders), regulating and prohibiting public assemblies including protests, imposing fines and imprisoning persons, and directing financial institutions to prevent the funding of blockades.


Due to the high level of restrictive powers the Emergencies Act affords the federal government, embedded into the act is a requirement that the federal government be subject to parliamentary review as well as an inquiry following an emergency declaration.


The Emergencies Act was invoked by the Canadian government for the first time on February 14, 2022 under Prime Minister Justin Trudeau. Convoy protests took over Ottawa in dissent over the federal government’s COVID-19 mandates, particularly regarding vaccine mandates. The protests, which included blocking several border ports of entry as well as the occupation of downtown Ottawa for about 3 weeks, were declared as part of a “Public Order Emergency” under the Emergencies Act. Measures taken under the act included the removal and arrest of protesters as well as the freezing of bank accounts for specified persons.



Judicial Review by the Federal Court

In a series of judicial reviews, four groups applied for the Federal Court to review the Liberal government's use of the Emergencies Act in 2022. The Federal Court heard the following cases regarding the matter:


  1. Canadian Frontline Nurses and Kristen Nagle v. The Attorney General of Canada

  2. Canadian Civil Liberties Association v. Attorney General of Canada

  3. Canadian Constitution Foundation v. The Attorney General of Canada and The Attorney General of Alberta


Represented in the judicial inquiry of the Emergencies Act were two individuals, whose bank accounts had been frozen, as well as two associations, the Canadian Civil Liberties Association and the Canadian Constitution Foundation, which argued on behalf of the general public. The Federal Court sought to determine if the declaration of a national emergency was reasonable. Furthermore, did the emergency measures taken by the federal government violate section 1(a) of the Canadian Bill of Rights or Charter rights as per sections 2(b)(c)(d), 7 or 8 outside of what section 1 allows?


The Honourable Justice Richard Mosley, speaking on behalf of the Federal Court, answered these questions in a January 2024 decision. In terms of the reasonableness for declaring the convoy protests as a national emergency, the Federal Court held that this decision from the federal government was unreasonable and thus, illegal. While the nature of the blockades was serious, this level of seriousness could not be categorized as an “urgent and critical situation that exceeds the capacity or authority of the provinces to deal with it, and that cannot be effectively dealt with under any other law of Canada” as described by paragraph 3(a) of the Emergencies Act. In addition to this, Justice Mosley notes that section 17 of the Emergencies Act utilized section 2 of the Canadian Security Intelligence Service Act (CSIS Act) to define threats to the security of Canada. Given that section 2(c) of the CSIS Act defines said threats as “activities…directed towards or in support of the threat or use of acts of serious violence against persons or property to achieve a political, religious or ideological objective,” the Federal Court held that the convoy protests did not meet this standard and therefore, could not be defined as a national emergency under these sections.



After analyzing the emergency measures taken by the federal government, the Federal Court found that Charter rights under sections 2(b) and 8 were violated in ways that could not be justified under section 1, which subjects Charter rights and freedoms to reasonable limits. Section 2(b), the freedom to thought, belief, opinion and expression, had been violated in the restriction of protesters' expression. Furthermore, the convoy protesters' way of exercising their section 2(b) rights, Justice Mosley notes, was unlikely to result in a breach of national peace. 


The Economic Order, which froze the bank accounts of two individuals, under the Emergencies Act, violated section 8 of the Charter’s protection against unreasonable search or seizure as well as the right to due process and the peaceful enjoyment of property under the Canadian Bill of Rights. Finally, it was noted that other sections of the Charter, namely sections 2(c) (freedom of peaceful assembly), section 2(d) (freedom of association), and 7 (right to life, liberty and security of the person), were not violated by the federal government. 



Ottawa Applies to the Federal Court of Appeal

On February 21, 2024, the federal government applied to the Federal Court of Appeal to set aside the decision made by the lower Federal Court. In their application, the Attorney General of Canada argues that the declaration of a “Public Order Emergency” was reasonable and subsequently that the Federal Court failed in concluding that there was one reasonable interpretation of sections 3 and 17 of the Emergencies Act as well as paragraph 2(c) of the CSIS Act. On top of this, it is argued that the Federal Courts erred in reviewing the invocation of the act retrospectively, rather than considering the information available and circumstances at the time of the federal government decision. 


In terms of the Federal Court's stance in section 2(b) and section 8 Charter violations, the Attorney General of Canada disagrees with the court’s interpretations of both sections.



What’s next?

Currently, there remains the question of what the Federal Court of Appeal’s stance will be on the Emergencies Act. Given the high levels of authoritative powers afforded to the federal government under the act, the 2022 invocation must withstand thorough judicial review. The nature of protests, especially as it relates to COVID-19 vaccine mandates, was, and still is, a highly contentious and politicized topic. As a result, the direction of public discourse, while taking place outside of the courts, can be highly consequential for the current federal Liberal government. 



The COVID-19 pandemic presented Canadians with abnormal circumstances and posed new questions to governments across the world regarding the appropriate ways to strike a balance between rights and freedoms in the face of threats to public health and order. With the uniqueness of COVID-19, the Federal Court of Appeal is likely to address whether or not the Federal Court failed to consider the circumstances, specifically the lack of hindsight, the federal government was able to exercise leading up to February 14, 2022. As this case goes through judicial review, the question of what constitutes a “national emergency” will be further clarified. Surely, this line of questioning is particularly necessary given the economic and assembly-limiting measures taken by the federal government under the act. Likewise, decisions coming out of further judicial review will be interesting given the historical precedents that may be set, especially considering that the Emergencies Act was invoked for the first time in Canadian history in 2022.






 
Bibliography

CBC News. 2022. “The Convoy Crisis in Ottawa: A Timeline of Key Events.” CBC. February 17, 2022. https://www.cbc.ca/news/canada/ottawa/timeline-of-convoy-protest-in-ottawa-1.6351432.

‌

CBC News. 2024. “Ottawa Appeals Court Decision Calling Use of Emergencies Act on Convoy Protests Unreasonable.” CBC. February 24, 2024. https://www.cbc.ca/news/politics/ottawa-appeals-emergencies-act-court-decision-1.7124513#:~:text=A%20federal%20judge%20has%20ruled,says%20it%20plans%20to%20appeal.


‌Department of Justice Canada. 2022. “Canada’s Emergencies Act.” Canada.ca. Government of Canada. February 14, 2022. https://www.canada.ca/en/department-justice/news/2022/02/canadas-emergencies-act.html.


Federal Court. 2024. “Federal Court Cour Fédérale in the MATTERS of CANADIAN FRONTLINE NURSES and KRISTEN NAGLE v. the ATTORNEY GENERAL of CANADA; CANADIAN CIVIL LIBERTIES ASSOCIATION v. ATTORNEY GENERAL of CANADA; CANADIAN CONSTITUTION FOUNDATION v. the ATTORNEY GENERAL of CANADA and the ATTORNEY GENERAL of ALBERTA; RISTAU v. GOVERNOR in COUNCIL, HIS MAJESTY in RIGHT of CANADA, ATTORNEY GENERAL of CANADA, and MINISTER of PUBLIC SAFETY and EMERGENCY PREPAREDNESS.” https://www.fct-cf.gc.ca/Content/assets/pdf/base/2024-01-23-News-Bulletin-Public-Order-Emergency.pdf.


Legislative Services Branch. 2024. “Canadian Bill of Rights.” Justice.gc.ca. March 15, 2024. https://laws-lois.justice.gc.ca/eng/acts/c-12.3/fulltext.html.



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