OTTAWA – The Supreme Court of Canada just announced that it will hear the federal government’s appeal in the Emergencies Act case.
“We will proudly defend our historic victory in the Supreme Court of Canada,” said Howard Sapers, Executive Director at the Canadian Civil Liberties Association (CCLA).
“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 democratic process,” Sapers continued. “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.”
The Emergencies Act allows the executive branch of the federal government to enact wide-reaching orders without going through the ordinary democratic process—but only once stringent legal thresholds are met. Last January, the Federal Court of Appeal agreed with the CCLA that the federal government did not meet these thresholds when it invoked the Emergencies Act in February 2022. The federal government is appealing this decision.
CCLA’s challenge of 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.
“Democratic regression rarely arrives all at once,” said Anaïs Bussières McNicoll, Director of the Fundamental Freedoms program at the CCLA. “It happens one government overreach at a time, until the very fabric of society has changed.”
“For the CCLA, this case is not about the “Freedom Convoy” protests,” continued Bussières McNicoll. “It is about sending a clear message to this and future governments: even in times of crisis, no government is above the law.”
CCLA is immensely grateful for the exceptional pro bono legal services of Ewa Krajewska, Brandon Anand Chung and Erik Arsenault of Henein Hutchison Robitaille LLP in this case.
