Canadian Court Rules 2022 Use of Emergencies Act Unlawful

The Federal Court of Appeal in Canada has determined that the government’s invocation of the Emergencies Act in 2022 was “unreasonable” and exceeded its legal authority. This ruling, issued on October 27, 2023, supports a previous decision made by Justice Richard Mosley of the Federal Court, which concluded that the legal standards required to declare a public order emergency were not satisfied.

The court’s decision underscores the importance of the safeguards established by Parliament when the Emergencies Act was enacted in 1988. In its ruling, the court highlighted that the law was framed with “narrowly defined terms” intended to limit executive power, particularly in light of historical abuses seen under the War Measures Act. The court emphasized that emergency measures must remain subject to the constitutional limits set forth in the Canadian Charter of Rights and Freedoms.

The court found that the government failed to demonstrate “reasonable grounds” for believing that any “threats to the security of Canada” or a “national emergency” existed under the parameters outlined by the Emergencies Act. It also noted that the situation could have been managed using existing laws, negating the need for such extraordinary measures.

In terms of constitutional rights, the ruling reinforced key findings regarding the infringement of freedoms guaranteed by the Charter. The three-judge panel determined that the Emergency Measures Regulations unlawfully restricted the section 2(b) protection of freedom of expression by criminalizing specific protests. The court ruled that this infringement was not justifiable under section 1 of the Charter, which allows for reasonable limits on rights and freedoms.

Additionally, the court addressed the emergency economic measures implemented during the protests, specifically the information-sharing and account-freezing protocols. These were found to violate section 8 of the Charter, which protects against unreasonable search and seizure. Once again, the court determined that there was no adequate justification for this infringement.

In response to the ruling, the Canadian Civil Liberties Association hailed the decision as a significant limitation on potential future government overreach during emergencies. The organization’s director of fundamental freedoms stated, “[l]egal thresholds do not bend, much less break, in exigent circumstances.”

The controversy surrounding the Emergencies Act stems from the federal government’s February 14, 2022, declaration of a public order emergency amid the Freedom Convoy protests, which had caused significant disruptions at various border crossings. This invocation marked the first time the Emergencies Act was utilized, highlighting its contentious nature in Canadian governance.

As the legal ramifications of this ruling unfold, it raises important questions about the balance between national security measures and the protection of civil liberties in times of crisis.