Ultra Vires and Unreasonable: Federal Court rules on invocation of the Emergencies Act

In Canadian Frontline Nurses v Canada (Attorney General), 2024 FC 42 [CFN], the Federal Court (“FC”) considered an application for judicial review challenging the federal government’s invocation of the Emergencies Act, RSC 1985, c 22 in the wake of the 2022 Freedom Convoy protests. The FC granted the application, holding that the invocation of the Act was unreasonable and unjustifiably violated s.2(b) and s.8 of the Canadian Charter of Rights and Freedoms (“Charter”). This decision has significant precedential value for government action in emergency contexts, and will soon head to the Federal Court of Appeal for further scrutiny.

Facts

 In November 2021, the Public Health Agency of Canada announced plans for COVID-19 vaccination requirements for certain foreign nationals crossing the Canadian border (CFN, para 31). In addition to these requirements, unvaccinated truck drivers (and other essential service providers) were required to meet standards for for pre-entry, arrival, and post-arrival testing, as well as comply with quarantine requirements, to mitigate the cross-border spread of COVID-19 (CFN, para 32).

In protest, a group primarily composed of truck drivers mobilized an effort to express their disdain for the border measures and other public health initiatives. The group termed themselves “Freedom Convoy 2022” and drove from British Columbia to Ottawa, attracting supporters and considerable media attention along the way (CFN, para 33).

In late January of 2022, the Freedom Convoy arrived in Ottawa, consisting of hundreds of vehicles and thousands of individuals intending to protest Canada’s response to the COVID-19 pandemic. The protestors and trucks occupied much of downtown Ottawa, blocking pedestrian and routine vehicle traffic to the affected area (CFN, para 34). The protest quickly expanded into a blockade accompanied by incessant noise from truck horns and fumes from the engines of the trucks. There were also reported instances of harassment and intimidation of bystanders by the protestors. The conditions became “intolerable” for many workers and residents in the occupied district (CFN, para 35).

As the protests continued, the Ottawa Police Service faced increasing difficulty in responding to the situation. They requested additional resources from the federal and provincial governments, but the protestors remained adamant they would stay until the COVID-19 measures were repealed (CFN, para 37). In response, both Ontario and Ottawa declared states of emergency early February. Shortly thereafter, the Superior Court of Justice granted an injunction to silence the horns and prevent other bylaw violations (CFN, para 38).

Eventually, the Prime Minister of Canada convened the Incident Response Group (“IRG”), an emergency committee and coordination body of Cabinet and other senior public servants who advise the Prime Minister in the event of a national crisis (CFN, para 40). According to the group’s meeting minutes, the IRG were concerned that extremist elements were beginning to fester within the protests. Some protestors, for example, had expressed the desire to storm Parliament or overthrow the government (CFN, para 41). Visible symbols of hate were seen at the protest sites (CFN, para 43). Copycat blockades had also emerged at border sites across the country, where weapons were seized by police (CFN, paras 46–51).

On February 14, 2022, the Governor in Council (“GIC”) declared a public order emergency under the Emergencies Act to end the disruption and blockades (“Proclamation”) (CFN, para 53). Accompanying regulations and an Economic Order were enacted the next day, which froze the bank accounts and other resources of those participating in the protests (CFN, para 54). The declaration of emergency was rescinded on February 23, 2022 (CFN, para 60). The Proclamation would serve to restrict any public assembly that may reasonably be expected to lead to a breach of the peace, authorize removal of blockades, authorize the reporting of any financial contributions to the protests, and impose fines or imprisonment for contravention of any order made under the Emergencies Act (CFN, para 66).

In justifying its decision to invoke the Emergencies Act, Cabinet cited the following factors (CFN, para 65): threats of serious violence against people and property that accompanied the protests, the adverse impacts on the Canadian economy and trading relationships, the disruptions to Canadian supply chains, and the potential for increased levels of unrest and violence.

The Emergencies Act 

The Emergencies Act contains a number of threshold components and internal checks and balances for its invocation. The Act defines a “national emergency” as an “urgent and critical situation of a temporary nature” which must “seriously [endanger] 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.” Alternatively, a national emergency must seriously threaten “the ability of the Government to preserve the sovereignty, security, and territorial integrity of Canada.” (CFN, para 100) A national emergency can only be found if the situation cannot be managed under any other Canadian law (CFN, para 101). For a public order emergency to be declared, there must be a “threat to the security of Canada” as defined in the Canadian Security Intelligence Services Act, RSC 1985, c C-23: “activities… directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective…” (CFN, para 102)

Issues

 The application for judicial review raised three substantive issues (CFN, para 121):

1. Was the Proclamation unreasonable and ultra vires the Emergencies Act?
2. Did the powers created by the regulations and Economic Order violate sections 2(b), 2(c), 2(d), 7, or 8 of the Charter? If so, can they be saved under section 1?
3. Did the regulations and the Economic Order violate the Canadian Bill of Rights?

Decision

On the first issue, the FC concluded that the invocation of the Act was unreasonable and ultra vires. On the second issue, the FC found that while the regulations and Economic Order associated with the Act’s invocation unjustifiably violated section 2(b) and section 8 of the Charter, there was no violation of sections 2(c), 2(d), or 7. Lastly, the FC concluded that there was no violation of the Canadian Bill of Rights.

Reasonableness

The Proclamation, regulations, and Economic Order are forms of executive legislation that have been delegated to the GIC by Parliament (CFN, para 191). Thus, the role of the reviewing court is to determine whether they were made within the governing legal framework from which the GIC’s authority is sourced (CFN, para 192). Following Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the presumption is that judicial review is to be conducted on a standard of reasonableness, with some exceptions. The parties agreed that the standard of reasonableness applied to the GIC’s decision to invoke the Emergencies Act, and the Court held that it also applied to the Charter issues (CFN, para 201). However, while the decision to invoke the Act was discretionary and therefore owed significant deference, the determination of whether the objective legal thresholds required to invoke the Act were met was not discretionary and does not warrant the same level of deference (CFN, para 210).

For an administrative decision to be reasonable, it must demonstrate the hallmarks of reasonableness: justification, transparency, and intelligibility. Further, it must be justified in relation to the relevant factual and legal constraints that bear on the decision (Vavilov, para 99). The Court ultimately held that the decision was not justified in light of the factual and legal constraints bearing on Cabinet’s decision.

First, while there were undoubtedly protestors with nefarious and threatening intentions present across the country, the most serious threats were being appropriately dealt with by local and regional police outside of Ottawa (CFN, para 243). Indeed, most Premiers informed the Prime Minister that invoking the Act was not necessary in their provinces, as local police and legislation were already effectively managing the situation (CFN, para 245). The Emergencies Act requires that, if an emergency does not extend across Canada, the proclamation must specify the affected area. Despite this, the Proclamation stated that the emergency “exists throughout Canada,” which was a clear overstatement of the situation known to Cabinet at the time (CFN, para 248). 

Second, the Emergencies Act specifically requires that the situation of emergency be of such proportions or nature as to exceed the capacity or authority of a province to deal with it. While the protests approached such severity in Ontario, the FC reasoned that the province could have combined efforts from its various police forces to effectively remove those participating in the border blockades (CFN, para 250). The FC stressed that the Emergencies Act, due to the sweeping powers it grants the federal executive, should be a tool of last resort. The GIC could not have invoked the Act simply because it was convenient or potentially more effective than other options (CFN, para 253). Thus, even though invoking the Act may have been more effective, the evidence did not indicate that the protests could not have been managed using other laws, nor that they exceeded provincial capacities (CFN, para 254).

Third, the GIC lacked compelling and credible information to support reasonable grounds to believe in the existence of threats to the security of Canada or of serious violence, as is required by the Act. The FC held that while the Act does not require threats of violence rising to the level of death or endangerment of life, the threshold is not so low as to capture the economic disruption that was occurring as a result of the blockades (CFN, paras 280–281). The only specific examples of threats of serious violence occurred in Coutts, Alberta, where guns and ammunition were discovered at the protest sites. Aside from the ammunition and weapons found at Coutts, the Proclamation could not provide other evidence of threats or acts of serious violence (CFN, para 290).

Taken together, the lack of threats or use of serious violence and the ability of the provinces to effectively manage the situation under their own legislation or other Canadian laws meant that the Act’s own thresholds for invocation were not met. Thus, the FC concluded that the decision to invoke the Act was unreasonable and ultra vires the Emergencies Act (CFN, para 297).

Charter Issues

On the Charter issues, the applicants brought challenges under sections 2(b) (freedom of thought, belief, opinion, and expression), 2(c) (freedom of peaceful assembly), 2(d) (freedom of association), 7 (life, liberty, and security of the person), and 8 (unreasonable search and seizure) of the Charter. The FC found violations of sections 2(b) and 8 of the Charter that could not be justified under section 1.

Regarding sections 2(b), 2(c), and 2(d) of the Charter, the specific source of the challenge were the prohibitions on public assembly, travelling to an assembly, and providing property under the Regulations accompanying the Act’s invocation (CFN, para 302). On freedom of expression, the FC held that the scope of the Regulations were overbroad such that they infringed the expressive freedom of those who only wanted to peacefully protest on Parliament Hill. Based on the Regulations, peaceful protestors would have been subject to the same sanctions as someone who had parked their truck on the street and engaged in a breach of the peace (CFN, para 308). To the extent that peaceful protestors did not participate in breaches of the peace, their expressive activity was infringed (CFN, para 309).

However, the FC declined to find breaches of the rights to peaceful assembly or freedom of association. Regarding peaceful assembly, the Emergencies Act expressly permits special measures to prevent public assemblies that would likely lead to a breach of the peace. Peaceful anti-government protests that were not likely to result in a breach of the peace were unaffected (CFN, para 310). The blockading and occupation of downtown Ottawa fell within the scope of the authorizing statute because it was likely to lead to a breach of the peace and did not attract constitutional protection (CFN, paras 312–313). Regarding freedom of association, the special measures adopted to deal with the occupation of downtown Ottawa did not infringe on the ability of the protestors to communicate with each other and pursue their collective goals outside of downtown Ottawa. Thus, freedom of association was not infringed (CFN, para 317).

The FC also declined to find a breach of section 7, as the applicants had not satisfied both aspects of the requisite test: demonstrating that the impugned law interfered with life, liberty, and security of the person, and that the deprivation was not in accordance with the principles of fundamental justice (CFN, para 324). Thus, while the liberty interests of everyone in Canada were impacted by the broad reach of the Regulations (regardless of whether they were present in an area where protestors were taking place), the deprivations of liberty were in accordance with principles of fundamental justice because they were both temporary and subject to judicial review (CFN, para 320-324).

Lastly, with respect to section 8, the FC found that the Economic Order’s freezing of bank accounts and disclosure of financial information of certain protestors constituted a seizure within the meaning of section 8 of the Charter (CFN, para 334). Financial records are part of an individual’s biographical core that can reveal personal and lifestyle choices— individuals whose bank accounts were subject to the Economic Order had a strong expectation of privacy in their financial records which is protected by section 8 (CFN, para 334). The seizures were subsequently held to be unreasonable because there was no prior authorization of the search by a neutral third party, nor was there guidance for financial institutions on the standards governing release of a protestor’s financial information (CFN, para 341).

The FC found that the violations of sections 8 and s.2(b) could not be justified under section 1. First, a finding that a search and seizure power is unreasonable “[left] little room” for any justification in a free and democratic society (CFN, para 349). Further, because the scope of the Regulations extended across Canada, they did not minimally impair the sections 2(b) and 8 rights of affected Canadians (CFN, para 353). The scope of the Regulations could have been carefully tailored to apply only to Ontario or Alberta, where the most serious developments were taking place, but instead applied to all Canadians regardless of the severity of the protests in their home province (CFN, para 354).

Canadian Bill of Rights

The applicants further challenged the Regulations and Economic Order on the basis of two provisions of the Canadian Bill of Rights, SC 1960, c 44 (“Bill of Rights”) that were not superseded by the Charter: section 1(a) (the right to the protection of the enjoyment of property) and section 2(e) (the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations).

With respect to section 1(a), the FC held that the Economic Order did not “squarely address” the issue of the enjoyment of property (CFN, para 369). While the freezing of bank accounts was inconvenient, it did not cause the affected individuals significant harm, and only lasted for a short time. Regarding section 2(e), the court similarly found no violation, as the principles of fundamental justice did not necessitate putting the Emergencies Act measures on hold to conduct hearings determining the government’s rights and obligations. According to Justice Mosley, this would be “contrary to the very purpose of the Emergencies Act and an unnecessary burden on the justice system given the temporary nature of the special measures.” (CFN, para 369) Thus, no violation of the Bill of Rights occurred.

Analysis

While I agree with the FC’s ruling that the invocation of the Act had unsupported impacts on the Charter rights of Canadians, this decision may be vulnerable to reversal on appeal for two reasons. First, Justice Mosley’s conclusion on reasonableness review comes dangerously close to functioning as correctness review in reasonableness clothing. Second, while I hope that the Federal Court of Appeal (“FCA”) remains grounded in the relevant legal issues, the significant public and media attention surrounding this case and its preceding events may open the door to results-driven reasoning on appeal.

At the conclusion of his analysis, Justice Mosley concluded that “there can be only one reasonable interpretation” as to whether the decision to invoke the Act was intra vires and reasonable (CFN, para 372). In my view, this may come too close to correctness review, particularly in the face of reasonable disagreements on the issue of invocation (such as the decision of the Public Order Emergency Commission). The fact that Justice Rouleau’s Commission report concluded that the invocation was reasonable suggests that there is not, in fact, a single reasonable interpretation of whether the GIC’s invocation was intra vires the Act. Justice Mosley’s contention otherwise sidesteps the deferential posture of reasonableness review and appears more akin to a correctness standard, making it vulnerable on appeal, where the appellate court is tasked with scrutinizing the standard of review. Given that reasonableness was not disputed by the parties, an insufficiently deferential application of reasonableness review may pose issues for this ruling on appeal. The acceptance of reasonableness review by both parties indicated a particular need for Justice Mosley to approach his review with the appropriate level of deference to the GIC’s ultimate decision. This concern is amplified given the SCC’s recent affirmation in Auer v Auer, 2024 SCC 36 that the standard of review on regulations and subordinate legislation is reasonableness.

Secondly, the significant public and media attention surrounding this case and its preceding events will mean that the FCA must guard jealously against results-driven reasoning. The events of the Freedom Convoy left Canadian society deeply divided. Those who disagreed with the message of the convoy members were quick to support the invocation of the Act despite its significant legal implications, while those who supported the convoy felt this to be an extension of the government’s perceived trampling of Charter rights throughout the pandemic. Justice Mosley himself noted that, even prior to hearing the legal arguments, he was leaning towards supporting the reasonableness of the Act’s invocation. He considered the events that occurred to be beyond legitimate protest and an “unacceptable breakdown of public order.” (CFN, para 370)

Following the ruling, the federal government instantly appealed the decision. Given the aforementioned concerns, as well as the far-reaching impacts of both the legislation itself and the decision’s precedential value on managing future emergencies, it is critical that the FCA remain grounded in the legal principles governing this fact situation and resist undue pressure from either side. That being said, given the controversial nature of this case, I would be entirely unsurprised if this case reaches the Supreme Court’s docket sometime in the near future, regardless of the FCA’s ultimate decision.