Federal Court Finds Emergencies Act Orders Exceed Government's Powers

• Published date: 05 February 2024
• Law Firm: Torys LLP
• Author: Kylie de Chastelain, Yael Bienenstock, David Outerbridge, Andrew Bernstein and Jeremy Opolsky

In Canadian Frontline Nurses et al. v. Canada (Attorney General), 2024 FC 42, the Federal Court held that the Government of Canada's decision to deploy powers under the Emergencies Act to curtail convoy protests in 2022 was unreasonable and breached Canadians' Charter rights.

What you need to know

• Although the Emergencies Act (the Act) includes accountability mechanisms, judicial review is still appropriate. The Act incorporates extensive checks on government power in the case of an emergency declaration, including a parliamentary review committee and the authority to initiate an inquiry, which was undertaken here. Despite these provisions, the Court held that judicial review of government action remains available, particularly where significant and broad powers are exercised.
• The Act imposes a high threshold for "national emergencies". Even though the Court found that the convoy protests and blockades threatened Canada's security, it found that the events of February 2022 did not technically rise to the level of a national emergency. Under the Act, a national emergency arises only in narrow circumstances. There must be an urgent, critical and temporary situation that "seriously endangers" the lives, health and safety of Canadians, and it must be so significant as to exceed the capacity or authority of the provinces to address it.
• Emergency measures infringed the Charter. The Court held that some of the emergency measures the government had adopted infringed the Charter. By criminalizing the protests themselves, the emergency measures infringed freedom of expression since they prohibited even peaceful protestors from joining the protests. The broad powers granted to financial institutions to freeze assets and provide private information to the government infringed the right to be free from unreasonable search and seizure and were not sufficiently tailored to be saved by section 1 of the Charter (which provides that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society).

The applications: seeking review of the government's use of the Emergencies Act

Background

In early 2022, Canada witnessed significant protests across the country related to COVID-19 regulations and vaccination mandates. The largest and most disruptive of these protests'the Freedom Convoy 2022'occupied much of the downtown core in Ottawa over several weeks. This led to "intolerable conditions" for residents and workers...