Emergencies Act Case: CCLA Claims Historic Victory at the Federal Court of Appeal

TORONTO – The Federal Court of Appeal has delivered a historic victory for the rule of law by ruling in favour of the Canadian Civil Liberties Association (CCLA)’s arguments in the Emergencies Act case.

The Emergencies Act allows the federal government to enact wide-reaching orders without going through the ordinary democratic process—but only once stringent legal thresholds are met. The Federal Court of Appeal confirmed today that the federal government did not meet these thresholds when it invoked the Emergencies Act in February 2022.

“While the extraordinary powers granted to the federal government through the Emergencies Act are necessary in extreme circumstances, they also threaten the rule of law and our democracy,” said Howard Sapers, CCLA’s Executive Director. “The courts are responsible for ensuring that the government does not invoke these powers arbitrarily, and CCLA’s mandate is to raise these important issues for judicial scrutiny.”

CCLA’s judicial review challenging the federal government’s invocation of the Emergencies Act was not an endorsement of the “Freedom Convoy” protests. CCLA condemned the reported acts of violence, racism and homophobia, and agreed that, given the protracted timelines and the extent of the disruption, the police needed to dismantle the blockades. However, the CCLA maintained there was no “public order emergency” as contemplated under the Act, and certainly not one that extended across the entirety of Canada. Existing laws could have—and should have—been used to address the situation, rather than the Emergencies Act.

The Federal Court of Appeal agreed, holding that the legal thresholds built into the Emergencies Act were designed to ensure that only sufficiently serious considerations—and certainly not the speculative or tentative ones that the federal government had identified—could prevail over democratic values and fundamental freedoms.

“Legal thresholds do not bend, much less break, in exigent circumstances,” said Anaïs Bussières McNicoll, Director of the Fundamental Freedoms program at the CCLA. “Today’s historic judgment puts this and future governments on notice: even in times of crisis, no government is above the law.”

CCLA is immensely grateful for the outstanding pro bono legal services of Ewa Krajewska, Brandon Anand Chung and Erik Arsenault of Henein Hutchison Robitaille LLP in this case.

View the press conference: https://www.cpac.ca/headline-politics/episode/canadian-civil-liberties-association-holds-a-news-conference?id=328a25c9-e010-47da-8536-d40dcc88b5c3