Canada appeals court finds 2022 Emergencies Act invocation unreasonable – JURIST

The Federal Court of Appeal of Canada on Friday ruled that the Canadian federal government’s 2022 invocation of the Emergencies Act was “unreasonable” and beyond the government’s legal authority. The ruling affirms the 2024 Federal Court decision by Justice Richard Mosley, who concluded the statutory threshold for declaring a public order emergency was not met.

The court emphasized that Parliament drafted the law with “narrowly defined terms” to constrain executive power in response to historical abuses under the War Measures Act, and to ensure emergency measures remain subject to constitutional limits under the Canadian Charter of Rights and Freedoms (Charter).

On the administrative law question, the court held the government failed to establish “reasonable grounds” to believe that “threats to the security of Canada” and a “national emergency” existed within the meaning of the Emergencies Act , including the requirement that the situation could not “be effectively dealt with under any other law of Canada.”

The court also also upheld key Charter findings. The three-judge panel concluded that the Emergency Measures Regulations infringed the 2(b) constitutional protection for freedom of expression by criminalizing certain protests, and that the infringement was not justified under section 1 of the Charter. Separately, the court found the emergency economic measures, particularly the information-sharing and account-freezing framework, breached section 8 protections against unreasonable search and seizure under the Charter, again without justification under section 1.

In reaction, the Canadian Civil Liberties Association called the ruling a major constraint on future emergency overreach, with its director of fundamental freedoms stating: “[l]egal thresholds do not bend, much less break, in exigent circumstances.”

The dispute stems from the federal government’s February 14, 2022, proclamation declaring a public order emergency during the “Freedom Convoy” protests and related border disruptions. The invocation was Canada’s first-ever use of the Emergencies Act since Parliament enacted it in 1988.