Federal Court finds Emergencies Act orders exceed government’s powers

In Canadian Frontline Nurses et al. v. Canada (Attorney General), 2024 FC 42, the Federal Court held that the Government of Canada’s decision to deploy powers under the Emergencies Act to curtail convoy protests in 2022 was unreasonable and breached Canadians’ Charter rights.

What you need to know

• Although the Emergencies Act (the Act) includes accountability mechanisms, judicial review is still appropriate. The Act incorporates extensive checks on government power in the case of an emergency declaration, including a parliamentary review committee and the authority to initiate an inquiry, which was undertaken here. Despite these provisions, the Court held that judicial review of government action remains available, particularly where significant and broad powers are exercised.
• The Act imposes a high threshold for “national emergencies”. Even though the Court found that the convoy protests and blockades threatened Canada’s security, it found that the events of February 2022 did not technically rise to the level of a national emergency. Under the Act, a national emergency arises only in narrow circumstances. There must be an urgent, critical and temporary situation that “seriously endangers” the lives, health and safety of Canadians, and it must be so significant as to exceed the capacity or authority of the provinces to address it.
• Emergency measures infringed the Charter. The Court held that some of the emergency measures the government had adopted infringed the Charter. By criminalizing the protests themselves, the emergency measures infringed freedom of expression since they prohibited even peaceful protestors from joining the protests. The broad powers granted to financial institutions to freeze assets and provide private information to the government infringed the right to be free from unreasonable search and seizure and were not sufficiently tailored to be saved by section 1 of the Charter (which provides that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society).

The applications: seeking review of the government’s use of the Emergencies Act

Background

In early 2022, Canada witnessed significant protests across the country related to COVID-19 regulations and vaccination mandates. The largest and most disruptive of these protests—the Freedom Convoy 2022—occupied much of the downtown core in Ottawa over several weeks. This led to “intolerable conditions” for residents and workers in downtown Ottawa. In a related border blockade in Alberta, the RCMP discovered firearms, ammunition and indications of extremist elements. In mid-February 2022, exercising its powers under the Act, the Governor in Council declared a Public Order Emergency (POE) and enacted further emergency Regulations and an Economic Measures Order. These emergency measures were in force only briefly as the protests were brought under control.

Application for judicial review

Four groups of claimants (two groups of citizens who participated in the Freedom Convoy, the Canadian Civil Liberties Association and the Canadian Constitution Foundation) brought applications for judicial review of the federal government’s decisions under the Act. They argued that (i) the decision to declare the POE was unreasonable and ultra vires the Act; and (ii) the powers created by the Regulations and Order violated sections 2(b)(c)(d), 7 or 8 of the Charter¹.

In response, Canada sought to strike the application for mootness, arguing that there was no justiciable issue because the emergency measures had been quickly revoked. However, the Federal Court exercised its discretion to hear the applications even though they were technically moot. The Court emphasized that the exercise of power under the Act was a matter of national and public importance that should be subject to judicial review. It also held that the accountability mechanisms required by the Act were not intended as a substitute for judicial oversight.

Declaration of emergency unreasonable, additional measures in breach of Charter

Declaration of emergency unreasonable

The Federal Court concluded that there was no national emergency justifying the invocation of the Act, and that the Canadian government’s decision to declare a POE was, therefore, unreasonable.

The Court’s analysis focused on the statutory requirements that, to constitute a national emergency, a situation must “exceed the capacity or authority of a province to deal with it”, and there must be a “threat to the security of Canada”, meaning threats or use of “serious violence”. The Court closely scrutinized the evidence before the federal government and concluded that while the events were concerning, “the record does not support a conclusion that the Convoy had created a critical, urgent, temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada”. The Court relied heavily on the fact that, except in Ottawa, the provinces were effectively addressing the protests through the exercise of their ordinary powers, including by making arrests and seeking injunctions in their superior courts. As for Ottawa, it concluded that although the protestors’ interference with residents’ right to peaceful enjoyment of public spaces was objectionable, it did not amount to any threat or use of violence.

Surprisingly, the judge specifically noted that had he “been at [the federal cabinet’s] tables at that time” he might have agreed it was necessary to invoke the Act, but in conducting the judicial review, he had “the benefit of hindsight” and a “more extensive record of the facts”.

Additional measures amounted to Charter breach

The Applicants sought declarations that the Regulations and Order breached their Charter rights to freedom of expression, peaceful assembly, association, liberty and security against unreasonable search and seizure.

The Applicants argued that the Regulations’ prohibitions on public assembly (which prohibited any assembly that could lead to a breach of the peace) contravened section 2(b) rights to freedom of expression. The Court agreed, concluding that the Regulations were overbroad because they focused on the protests themselves as opposed to the conduct of the participants, thereby capturing peaceful protesters.

However, the Court concluded that the Regulationsdid not improperly restrict rights to peaceful assembly or freedom of association under sections 2(c) and (d). The Act expressly authorized only orders restricting assembly that could reasonably lead to a breach of the peace. The Court agreed with Canada that gatherings designed to compel agreement with protesters’ objectives are not constitutionally protected. On freedom of association under section 2(d), the Court found no infringement because the protesters were still free to organize and pursue collective goals outside the blockaded areas.

The Court similarly dismissed the section 7 claim, finding that any restriction on liberty was too short-lived to amount to a Charter breach.

The Court held that the provisions of the Order that empowered financial institutions to freeze assets and disclose private financial information to the RCMP contravened the section 8 right to be secure against unreasonable search and seizure. The Court clarified that this process was a “seizure” of information by the government in respect of which the protesters would have had a strong expectation of privacy and control.

The Court ultimately concluded that the infringement of sections 2(b) (freedom of expression) and 8 (unreasonable search and seizure) could not be saved by section 1. Although the prohibitions on assembly and financial institution orders were motivated by a pressing and substantial objective (to end the blockades) and were rationally connected to that objective, the Court held that the measures were not minimally impairing. Rather, the application of both measures throughout the country was overbroad; they should have been limited to Ontario, which faced the most “intransigent situation”. Further, the suspension of bank accounts and credit cards affected joint account holders and family accounts, with no standard applied to determine whether someone should be a target of the measure and no process to question it.

Implications: federal powers under the microscope

This decision imposes limits on the exercise of powers under the federal Emergencies Act, even in extraordinary circumstances. The Federal Court’s decision suggests that provincial powers to address “emergencies” should only be supplanted by federal measures in extreme and rare cases.

As the Court remarked, the current political climate means that the risk of similar episodes of public disorder cannot be discounted. The rise of social media could mean that “extremist elements” within our society initiate broader and more serious protests on “another level” to those witnessed in February 2022. Still, the Court’s holding is clear: the federal government must not overreach or insert itself into provincial governance when the provinces are capable of addressing unrest and disorder with their own laws.

The federal government has announced its intention to appeal the decision to the Federal Court of Appeal. We would not be surprised to see the matter ultimately be determined by the Supreme Court of Canada.