by Victoria Wright, J.D. Candidate 2025
Staff Writer, Seven/Fifty
September 26, 2024
Since at least the early twentieth century, the Canadian government has asserted broad powers to respond to public emergencies. The War Measures Act was used by the Canadian government on three occasions deemed to be national emergencies: World War I, World War II, and in response to acts of the Front de Liberation du Quebec in October of 1970. However, in light of the controversy surrounding the 1970 invocation, the War Measures Act was repealed and replaced with the Emergencies Act (1988).[1] The Emergencies Act differs from the War Measures Act insofar as it includes deliberate checks and balances on invocation, implementation, revocation, and expiration of declarations of national emergencies and the orders that flow from them. Moreover, the Emergencies Act can only be invoked to address a national emergency of a temporary nature which cannot be addressed by any other law of Canada.[2]
Unlike the War Measures Act, the Emergencies Act has only been invoked once in Canadian history, to deal with the so-called “Freedom Convoy” in February 2022. This article provides a summary of one of the most significant legal cases that resulted from this invocation, Canadian Frontline Nurses v Canada (Attorney General), which was decided by Justice Mosley of the Federal Court in January 2024.
FACTUAL BACKGROUND OF THE 2022 “FREEDOM CONVOY”
Throughout the global COVID-19 pandemic, the Canadian government introduced a plethora of rules and regulations regarding vaccinations, mandatory quarantine periods, and interpersonal gatherings. These rules included travel restrictions that impacted individuals working in the cross-border trucking industry. In response, a group of individuals prepared to drive across Canada to protest in Ottawa under the name “Freedom Convoy 2022.”[3]
Throughout January, the protest in Ottawa became a blockade of the City’s downtown government, business, and residential districts.[4] The blockade involved incessant noise from truck horns and whistles, fumes from exhaust, transportation of fuel containers, and incidents of harassment and minor assault.[5] As the blockade developed, the Ottawa Police Service indicated they were unable to cope with the situation and on February 6, the Mayor of Ottawa declared a state of emergency.[6] On February 7, the Ontario Provincial Police also identified the Convoy as a “threat to national security” and requested the assistance of officers from other agencies.[7] However, the protest continued and allegations of Convoy supporters attempting to overwhelm emergency services and presenting visible signs of hate arose.[8] Smaller protests and blockades also began to spring up across Canada, including at the Sweetgrass-Coutts border crossing in Alberta.[9]
On February 13, the federal cabinet met to consider the invocation of the Emergencies Act to deal with the Convoy.[10] Subsequently, on February 14, the Governor in Council (“GIC”) declared a public order emergency under the Emergencies Act (“the Proclamation”) and on February 15, the GIC enacted the Emergency Measures Regulations and the Emergency Economic Measures Order, which granted substantial powers to law enforcement, including the ability to freeze individuals’ bank accounts.[11]
On February 23, 2022 the declaration of the public order emergency was revoked and the Regulations and Economic Order were consequently terminated.[12]
LEGAL ACTION AND ISSUES BEFORE THE COURT
Four applications for judicial review of the GIC’s decision to declare an emergency under the Emergencies Act and to approve additional measures to end the protests were filed with the Federal Court.[13] Along with consideration of the issues of standing and mootness, the Federal Court considered the following legal issues that applied to all four applications:[14]
1. Was the Proclamation unreasonable?
2. Did the powers created by the Economic Order and Regulations violate sections 2, 7, or 8 of the Canadian Charter of Rights and Freedoms, and, if so, can they be saved under section 1?
3. Did the Regulations and Economic Order violate the Canadian Bill of Rights?
WAS THE PROCLAMATION UNREASONABLE?
Utilizing the test from Vavilov,[15] the Court considered whether the decision to issue the Proclamation of a public order emergency was reasonable and justified based on the relevant factual and legal constraints. This included assessing whether the requirements for declaring a public order emergency under the Emergencies Act were met. As outlined in the Emergencies Act, a public order emergency is an “emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”[16] A national emergency is defined by the Act as:[17]
an urgent and critical situation of a temporary nature that
(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
The GIC is authorized to make a Proclamation of a public order emergency when it has reasonable grounds to believe a public order emergency exists which necessitates taking special temporary measures.[18]
The government argued the GIC had reasonable grounds to believe a national emergency existed and considerable deference was required; however, the Court rejected this argument on the grounds that the blockades were regionally based (not “national”) and could have been addressed through other existing Canadian laws.[19] The Court recognized that even though provincial governments chose not to take action, the existence of provincial powers that could have been utilized meant that it was unreasonable to believe that the threshold of a national emergency under the Emergencies Act was met.[20]
In this regard, it should be noted that the assessment of the Proclamation was not based on whether it was “wise” for the GIC to take action under the Emergencies Act, but on whether it was reasonable for the government to believe that the statutory threshold was met.[21] Ultimately, the Court held that the Emergencies Act is not to be used when it is convenient, but is a “tool of last resort.” In this case, even though “the situation was critical,” the Court stressed that there were other provincial and federal laws available to address the GIC’s concerns.[22] Consequently, the Proclamation was held to be unreasonable and, therefore, unconstitutional.[23]
DID THE POWERS CREATED BY THE ECONOMIC ORDER AND REGULATIONS VIOLATE SECTIONS 2, 7 OR 8 OF THE CHARTER, AND IF SO, CAN THEY BE SAVED UNDER SECTION 1?
Section 2
The Applicants argued the requirement to provide property and the prohibitions on public assembly and travel prescribed by the Regulations and Economic Order imposed under the Emergencies Act infringed upon their freedoms of peaceful assembly, association, and expression — all of which are protected under section 2 of the Charter.[24]
While the Court rejected the Applicants’ peaceful assembly and association claims,[25] it agreed that the expressive freedom of peaceful protestors was limited by the Regulations.[26] Under the Charter, however, such limitations are lawful if the government can demonstrate that they are reasonable and demonstrably justified, as per section 1 of the Charter. In order for the infringements to be justified under section 1, the government must demonstrate that the impugned Regulations had a pressing and substantial objective and that the means chosen to serve the objective were proportionate.[27] The infringements in this case were not justified, since the means chosen to serve the objective were not minimally impairing — more specifically, there were other methods available for the government to address their objectives that would have been less impairing of individuals’ section 2(b) rights to free expression.[28]
Section 7
The Applicants also argued the provisions that instituted penalties of imprisonment for up to five years violated their section 7 Charter right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[29] The Applicants stated the punishment was overbroad as it applied to all people in Canada, regardless of whether they were present at the geographical location of the protest.[30] However, the Court disagreed with the Applicants’ submission and found no breach of section 7, as the deprivation of liberty interests was temporary and subject to judicial review.[31]
Section 8
Lastly, the Applicants argued the provisions that authorized freezing bank accounts and disclosing financial information amounted to an unreasonable search and seizure violating their section 8 Charter rights.[32] In response to this claim, the Court outlined that reasonable searches require a system of prior authorization determined by a neutral third party, such as a judge or justice of the peace, who has reasonable and probable grounds to believe an offence has been committed.[33] However, in this case, the government failed to ensure an objective standard was satisfied before conducting the searches, and the searches thereby infringed upon section 8 of the Charter.[34] Like the violation of expressive freedom, this violation was also not justified under section 1 of the Charter as it was not proportionate and failed at the minimal impairment stage of the Oakes test.[35]
DID THE REGULATIONS AND ECONOMIC ORDER VIOLATE THE CANADIAN BILL OF RIGHTS?
The preamble to the Emergencies Act states that any special temporary measures imposed are subject to the protections listed in the Canadian Bill of Rights.[36] Two specific protections provided by the Canadian Bill of Rights which are not included in the Charter are the protection of the enjoyment of property and the guarantee of a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.[37]
The Court found the property protection provided by the Canadian Bill of Rights was not engaged in this case as the freezing of bank accounts “was of a short duration” and “did not cause them significant harm.”[38] Additionally, the Court recognized that requiring special measures to be put on hold to litigate rights claims would actually be contrary to the purpose of the Emergencies Act and would impose “an unnecessary burden on the justice system given the temporary nature of the special measures.”[39]
CONCLUSION
Ultimately, after a lengthy 376-paragraph decision, the Court held that the Proclamation of a public order emergency under the Emergencies Act was unreasonable and that the corresponding Regulations and Order unjustifiably infringed Canadians’ section 2 and 8 Charter rights.
Though lengthy, the Federal Court’s decision is not void of ambiguity, as many Canadians are likely left wondering, “if this is not an emergency, what is?” The Court stated, “[w]hile these events are all concerning, the record does not support a conclusion that the Convoy had created a critical, urgent and temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada.”[40] It is important to keep in mind that “these events” included significant and debilitating blockades of the nation’s capital; allegations that first responders were being overwhelmed; the uncovering of links between protestors and insurgency groups; Convoy protesters being found with prohibited weapons and firearms; and the presentation of visible symbols of hate during the protests, among other concerns.[41]
Though the Court found that the protest was generally an Ottawa-based issue, the effects were felt across Canada. The protests did consist of national elements — demonstrated through the spreading of blockades to other provinces (including Alberta) and vast membership from citizens across Canada. The Court’s finding that the Freedom Convoy was not “national in scope” accordingly raises questions as to the extent to which a protest or blockade must expand if it is to reach this threshold.
Furthermore, the reasoning that provincial governments’ inaction under existing provincial laws is proof that there is not a public order emergency risks limiting federal emergency powers too much. It is undisputed that the Emergencies Act defines a national emergency as an urgent and critical situation that cannot be effectively dealt with under any other law of Canada.[42] However, the legal definition of the word “effectively” in the context of the Emergencies Act must be considered in greater detail. Though the Court in this case found that provincial incapacity differs from provincial inaction (the latter of which does not amount to a national emergency),[43] it is not impossible to imagine a hypothetical situation in which a provincial government’s inaction could exacerbate a threat to the national security of Canada which may require an emergency response.
Lastly, little deference is given to the decision-makers in this situation. The Court notes several times that deference is legally owed; however, the Court’s reasoning raises the question of whether such deference was in fact applied. On this point, it is particularly notable that Justice Mosley acknowledged that personally, he too might have deemed the Proclamation and corresponding Regulations and Economic Order as necessary under the circumstances, despite later finding the Proclamation to be entirely unreasonable. To quote this portion of the judgment in full:
At the outset of these proceedings, while I had not reached a decision on any of the four applications, I was leaning to the view that the decision to invoke the EA was reasonable. I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order. I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC.[44]
Evidently, there is a need for the Supreme Court of Canada to clarify what the appropriate standard and threshold is for declaring an emergency under the Emergencies Act. It is important that this standard carefully balances the need to protect individual liberties alongside national security, and that it provides clearer guidance for the federal government in the future.
[1] Emergencies Act, RSC, 1985, c 22 (4th Supp.), s 3.
[2] Canadian Frontline Nurses v Canada (Attorney General), 2024 FC 42 at para 100 [Frontline Nurses].
[3] Frontline Nurses, supra note 2 at paras 32-33.
[4] Ibid at para 35.
[5] Ibid.
[6] Ibid at paras 36-37.
[7] Ibid at para 38.
[8] Ibid at paras 39-41.
[9] Ibid at paras 45-46.
[10] Ibid at para 52.
[11] Ibid at paras 53-55.
[12] Ibid at para 60.
[13] Ibid at para 1.
[14] Ibid at para 121.
[15] Canada (Minister of Citizenship and Immigration v Vavilov), 2019 SCC 65 at para 99. The hallmarks of reasonableness include justification, transparency, and intelligibility. The factual and legal constraints that are to be included in whether a decision is reasonable and justified include the evidentiary record and general factual matrix, as well as governing statutory schemes and the principles of statutory interpretation.
[16] Emergencies Act, supra note 1, s 16 [emphasis added].
[17] Ibid, s 3.
[18] Frontline Nurses, supra note 2 at para 221.
[19] Ibid at paras 230-255.
[20] Ibid at paras 234-235.
[21] Ibid at para 222.
[22] Ibid at paras 253-255.
[23] Ibid at para 295.
[24] Ibid at para 303.
[25] Ibid at paras 314 and 317.
[26] Ibid at para 309.
[27] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 at paras 69-70.
[28] Frontline Nurses, supra note 2 at para 359.
[29] Ibid at paras 318-320.
[30] Ibid at para 320.
[31] Ibid at para 324.
[32] Ibid at para 326.
[33] Ibid at para 327.
[34] Ibid at paras 340-341.
[35] Ibid at para 359.
[36] Ibid at para 360.
[37] Ibid at para 364.
[38] Ibid at para 369.
[39] Ibid at para 369.
[40] Ibid at para 294.
[41] Ibid at paras 34-45.
[42] Emergencies Act, supra note 1, s 3.
[43] Frontline Nurses, supra note 2at para 235.
[44] Ibid at para 370 [emphasis added].
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