Emergencies Act Deemed Illegal | Christine Van Geyn and Jimmy Connor

Canadian Constitution Foundation & The Emergencies Act Ruling: A Detailed Summary

Key Concepts:

• Emergencies Act: Canadian legislation granting the government temporary powers during national emergencies, including public order emergencies.
• Charter of Rights and Freedoms: Canada’s constitutional document guaranteeing fundamental rights and freedoms.
• Public Order Emergency: A specific type of emergency declared under the Emergencies Act related to threats to national security and public safety.
• Threshold for Invocation: The legal criteria that must be met to justify invoking the Emergencies Act.
• Friend of the Court (Intervener): A party appearing in court to provide expertise and perspective on a case without being directly involved in the litigation.
• Habius Corpus: A legal action or writ by means of which detainees can seek relief from unlawful imprisonment.
• Official Act: Protection afforded to public officials from personal liability for actions taken in their official capacity.

I. Introduction to the Canadian Constitution Foundation (CCF)

The Canadian Constitution Foundation (CCF) is a 20-year-old national legal charity focused on civil liberties. Its primary function is to challenge unconstitutional laws through litigation, public advocacy, and education. The CCF operates on a national scale, addressing overreach by all levels of government – federal, provincial, and municipal – believing accountability is crucial at every level. The organization views its work as a vital calling in defending fundamental freedoms.

II. Litigation Portfolio & Intervention Strategy

The CCF currently has over 20 active lawsuits. These cases fall into two categories: first-instance cases where the CCF represents individuals or acts as a public interest organization, and interventions, where the CCF appears as a “friend of the court” to provide expert legal analysis. Intervention requires court approval ("leave of the court"). A recent intervention occurred at the Ontario Court of Appeal.

III. The Emergencies Act Ruling: Context & Initial Concerns

In February 2022, the Liberal government, led by Justin Trudeau, invoked the Emergencies Act for the first time in Canadian history in response to the “Freedom Convoy” protests in Ottawa. This led to the removal of protesters, criminal charges, asset seizures, and bank account freezes, significantly impacting the lives of those involved. The federal court of appeal ruled that the government did not meet the threshold required to invoke the Act.

IV. Threshold Requirements for Invoking the Emergencies Act

The court identified three key threshold requirements that were not met:

1. Threat to the Security of Canada: The court unanimously found no credible threat to Canada’s security. The Canadian Security Intelligence Service (CSIS) also assessed there was no such threat. The government attempted to justify invocation based on economic harm, but the court ruled this was a misinterpretation of the statute, which requires “serious violence.”
2. National Emergency Exceeding Provincial Capacity: The court found the government failed to adequately consider input from the provinces. While Ontario, Newfoundland and British Columbia agreed to the invocation (albeit on a time-limited basis), the government did not sufficiently address provincial concerns about their ability to manage the situation.
3. Exhaustion of Existing Federal Tools (Last Resort Clause): The RCMP Commissioner, Brenda Lucky, stated that existing legal tools remained available and were ultimately used to clear the protests. This contradicted the claim that the Emergencies Act was necessary as a last resort.

The ruling establishes a precedent, preventing future governments from invoking the Act under similar circumstances. The Act is designed to be a narrow, exceptional tool, not a response to political dissent.

V. Legality of Protests & Existing Laws

While protesting is a legal right, certain actions are illegal, including road blockades, harassment, vandalism, and noise violations. These offenses already exist within the Criminal Code and municipal bylaws. The CCF argues that the government failed to utilize these existing tools before resorting to the extraordinary measures of the Emergencies Act. The invocation was inappropriate because the situation did not constitute a national emergency requiring the suspension of ordinary constitutional divisions of powers.

VI. Financial Measures & Charter Violations

The government implemented financial measures, compelling banks to freeze accounts and share private financial information with the RCMP without a warrant or court order. This violated the Charter right to be free from unreasonable search and seizure. Mark Carney, then a private citizen, publicly called for the “choking off” of funds supporting the protests, influencing the government’s actions. Approximately 290 accounts were frozen. The court found that financial institutions were effectively “deputized as agents of the state,” and the RCMP instructed them to scour news and social media to identify potential suspects. This practice was deemed unconstitutional.

VII. Recourse for Affected Individuals

Individuals whose accounts were frozen or who faced criminal charges as a result of the Emergencies Act invocation may have grounds for civil lawsuits seeking damages. While the ruling does not affect existing criminal convictions based on ordinary criminal law, it strengthens claims for damages resulting from the unconstitutional financial measures. The CCF does not handle these types of civil claims; individuals require their own legal counsel.

VIII. Prohibition on Assemblies & Freedom of Expression

The government’s prohibition on assemblies was deemed overly broad, criminalizing attendance at protests where a breach of the peace might occur. Even peaceful protesters could face charges with penalties of up to five years imprisonment if someone nearby engaged in unlawful activity. The court found this restriction unjustified and a violation of the Charter right to freedom of expression.

IX. Government Spending & Accountability

The government spent at least $2.2 million on the initial federal court challenge, using government lawyers. The appeal to the federal court of appeal involved hiring private sector lawyers, estimated to cost another $2 million or more. There is a lack of accountability for government officials involved in the decision to invoke the Act, despite the significant impact on Canadians’ lives. Justin Trudeau and Chrystia Freeland have continued to pursue lucrative opportunities after leaving office.

X. Implications & Future Outlook

The ruling restores the Emergencies Act to its intended role as a narrow, exceptional tool, not a blunt instrument against political dissent. The government has 60 days to seek leave to appeal to the Supreme Court of Canada. The CCF is prepared to continue the legal fight if necessary. The CCF encourages donations to support its ongoing work (ccf.ca). The case serves as a cautionary tale, echoing past abuses of emergency legislation, and underscores the importance of upholding the rule of law and protecting civil liberties.

Notable Quote:

• “This idea that the ordinary law is too difficult or slow or inconvenient that civil liberties need to be brushed aside and the rule of law brushed aside because there's a crisis going on or a perceived crisis going on… the Emergencies Act was designed to prevent that mindset.” – Christine Van Geyn, Legal Director, Canadian Constitution Foundation.