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National Security - Emergencies Act
MORE CASES
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. Canada (Attorney General) v. Canadian Civil Liberties Association [freedom of expression]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court considered the implication for the Emergency Act Regulations as they bear on Charter s.2(b) ['freedom of expression'], which the Federal Court found wanting under Charter s.1 and the Federal Court of Appeal agreed with:(2) Paragraph 2(b) of the Charter
[298] Paragraph 2(b) of the Charter provides that everyone has "“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”". At issue here is subsection 2(1) of the Regulations, which provides that "“[a] person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace”" in various ways, including by "“the serious disruption of the movement of persons or goods or the serious interference with trade”". Also prohibited is "“the interference with the functioning of critical infrastructure”" and "“the support of the threat or use of acts of serious violence against persons or property”".
[299] Subsection 4(1) of the Regulations is also in issue. It provides that "“[a] person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place”". The respondents also challenge section 5 of the Regulations, which states that "“[a] person must not, directly or indirectly, use, collect, provide[,] make available or invite a person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity”".
[300] The Federal Court found that the impugned provisions of the Regulations were overbroad to the extent that they captured peaceful protesters who simply wanted to support the protest by standing on Parliament Hill carrying a placard ("“peaceable protesters”").
[301] Although such individuals would not likely have been the focus of enforcement efforts by the police, they could nevertheless have been subject to enforcement actions under the Regulations in the same way as someone who parked their truck on Wellington Street and behaved in a manner that could reasonably be expected to lead to a breach of the peace. This led the Federal Court to find that the right to freedom of expression of individual protesters who did not participate in the disruption of the peace was thus infringed.
[302] Insofar as the section 1 justification was concerned, the Federal Court found that the GIC had a pressing and substantial objective in enacting the Regulations, and that they were rationally connected to the goal of ending the blockades. The Court nevertheless found that the AGC had not established that protesters’ right to freedom of expression had been infringed "“as little as is reasonably possible”" within a range of reasonable options leaving a reasonable margin of actions available to the state: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Hutterian Brethren] at para. 194. At paras 303-382 the Court of Appeal walks through it's own analysis, largely agreeing with the Federal Court's conclusions (above).
. Canada (Attorney General) v. Canadian Civil Liberties Association [trucker's protest]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court canvasses relevant provisions of Emergencies Act documents (including the 'Proclamation', EA Regulations, and the 'Economic Order') and states the lower court's 'reasonableness review', here in the context of the events of the 'Trucker's protest':II. INVOCATION OF THE EMERGENCIES ACT
[31] As mentioned above, the Prime Minister convened the IRG on February 10, 12 and 13, 2022. On February 13, 2022, the full Cabinet met to discuss the situation. On that occasion, the question of whether to invoke the Emergencies Act was delegated to the Prime Minister, who had the benefit of a memorandum from the Acting Clerk of the Privy Council (the Invocation Memorandum) recommending the invocation of the Emergencies Act.
[32] On February 14, 2022, the Governor General accepted the Prime Minister’s recommendation to invoke the Emergencies Act. Pursuant to subsection 17(1), she issued the Proclamation, declaring that there were reasonable grounds to believe a public order emergency existed which necessitated special temporary measures. The Proclamation identified five aspects of this public order emergency justifying the invocation of the Emergencies Act:(a) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,
a) les blocages continus mis en place par des personnes et véhicules à différents endroits au Canada et les menaces continues proférées en opposition aux mesures visant à mettre fin aux blocages, notamment par l’utilisation de la force, lesquels blocages ont un lien avec des activités qui visent à favoriser l’usage de la violence grave ou de menaces de violence contre des personnes ou des biens, notamment les infrastructures essentielles, dans le but d’atteindre un objectif politique ou idéologique au Canada,
(b) the adverse effects on the Canadian economy — recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) — and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,
b) les effets néfastes sur l’économie canadienne — qui se relève des effets de la pandémie de la maladie à coronavirus 2019 (COVID-19) — et les menaces envers la sécurité économique du Canada découlant des blocages d’infrastructures essentielles, notamment les axes commerciaux et les postes frontaliers internationaux,
(c) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,
c) les effets néfastes découlant des blocages sur les relations qu’entretient le Canada avec ses partenaires commerciaux, notamment les États-Unis, lesquels effets sont préjudiciables aux intérêts du Canada,
(d) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and
d) la rupture des chaînes de distribution et de la mise à disposition de ressources, de services et de denrées essentiels causée par les blocages existants et le risque que cette rupture se perpétue si les blocages continuent et augmentent en nombre,
(e) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians;
e) le potentiel d’augmentation du niveau d’agitation et de violence qui menaceraient davantage la sécurité des Canadiens; [33] The Proclamation further specified special temporary measures that may be necessary for dealing with the emergency:(a) measures to regulate or prohibit any public assembly — other than lawful advocacy, protest or dissent — that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area, to regulate or prohibit the use of specified property, including goods to be used with respect to a blockade, and to designate and secure protected places, including critical infrastructure,
a) des mesures pour réglementer ou interdire les assemblées publiques — autre que les activités licites de défense d’une cause, de protestation ou de manifestation d’un désaccord — dont il est raisonnable de penser qu’elles auraient pour effet de troubler la paix, ou les déplacements à destination, en provenance ou à l’intérieur d’une zone désignée, pour réglementer ou interdire l’utilisation de biens désignés, notamment les biens utilisés dans le cadre d’un blocage, et pour désigner et aménager des lieux protégés, notamment les infrastructures essentielles,
(b) measures to authorize or direct any person to render essential services of a type that the person is competent to provide, including services related to removal, towing and storage of any vehicle, equipment, structure or other object that is part of a blockade anywhere in Canada, to relieve the impacts of the blockades on Canada’s public and economic safety, including measures to identify those essential services and the persons competent to render them and the provision of reasonable compensation in respect of services so rendered,
b) des mesures pour habiliter toute personne compétente à fournir des services essentiels ou lui ordonner de fournir de tels services, notamment l’enlèvement, le remorquage et l’entreposage de véhicules, d’équipement, de structures ou de tout autre objet qui font partie d’un blocage n’importe où au Canada, afin de pallier les effets des blocages sur la sécurité publique et économique du Canada, notamment des mesures pour cerner ces services essentiels et les personnes compétentes à les fournir, ainsi que le versement d’une indemnité raisonnable pour ces services,
(c) measures to authorize or direct any person to render essential services to relieve the impacts of the blockade, including to regulate or prohibit the use of property to fund or support the blockade, to require any crowdfunding platform and payment processor to report certain transactions to the Financial Transactions and Reports Analysis Centre of Canada and to require any financial service provider to determine whether they have in their possession or control property that belongs to a person who participates in the blockade,
c) des mesures pour habiliter toute personne à fournir des services essentiels ou lui ordonner de fournir de tels services afin de pallier les effets des blocages, notamment des mesures pour réglementer ou interdire l’usage de biens en vue de financer ou d’appuyer les blocages, pour exiger de toute plateforme de sociofinancement et de tout fournisseur de traitement de paiement qu’il déclare certaines opérations au Centre d’analyse des opérations et déclarations financières du Canada et pour exiger de tout fournisseur de services financiers qu’il vérifie si des biens qui sont en sa possession ou sous son contrôle appartiennent à une personne qui participe à un blocage,
(d) measures to authorize the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference,
d) des mesures pour habiliter la Gendarmerie royale du Canada à appliquer les lois municipales et provinciales au moyen de l’incorporation par renvoi,
(e) the imposition of fines or imprisonment for contravention of any order or regulation made under section 19 of the Emergencies Act; and
e) en cas de contravention aux décrets ou règlements pris au titre de l’article 19 de la Loi sur les mesures d’urgence, l’imposition d’amendes ou de peines d’emprisonnement,
(f) other temporary measures authorized under section 19 of the Emergencies Act that are not yet known.
f) toute autre mesure d’intervention autorisée par l’article 19 de la Loi sur les mesures d’urgence qui est encore inconnue. [34] On February 15, 2022, the GIC enacted the Regulations, and the Economic Order, pursuant to subsection 19(1) of the Emergencies Act.
[35] The Regulations created three key prohibitions backed by the threat of conviction and imprisonment. First, subsection 2(1) prohibited participation in a public assembly that may be reasonably expected to lead to a breach of the peace by (a) causing serious disruption to the movement of persons, goods or trade, (b) interference with critical infrastructure, or (c) support of threats or use of acts of serious violence.
[36] Subsection 4(1) prohibited travelling to an area where a section 2 assembly is taking place, subject to limited exemptions.
[37] Section 5 prohibited anyone from directly or indirectly collecting or providing property to facilitate or participate in a section 2 assembly, or for the purpose of benefiting a person who is facilitating or participating in an assembly.
[38] Complementing these provisions, section 6 designated protected places (such as Parliament Hill and government buildings) that can be secured under the Regulations.
[39] Sections 7 to 9 enabled the Minister of Public Safety and Emergency Preparedness, the Commissioner of the RCMP or a person acting on their behalf to require the assistance of heavy tow truck operators to remove transport trucks and provided for reasonable compensation for essential goods and services rendered at such request. Finally, section 10 created offences for the failure to comply with the Regulations.
[40] The accompanying Economic Order required banks, credit unions, insurance companies, crowdfunding platforms, and others to freeze the assets and accounts of "“designated persons”". "“Designated persons”" included individuals engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the Regulations. Pursuant to section 3 of the Economic Order, the above institutions also had a duty to determine whether they were in possession of property owned, held, or controlled by or on behalf of a "“designated person”". If they were, they had to register with the Financial Transaction and Reports Analysis Center of Canada, pursuant to subsection 4(1). And pursuant to section 5, these entities also had to disclose, without delay, to the RCMP or Canadian Security Intelligence Service (CSIS), (a) the existence of property in their possession or control that they had reason to believe was owned, held or controlled by or on behalf of a designated person, and (b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
[41] On the same day the Regulations and the Economic Order were issued, access to the Coutts border crossing in Alberta was restored. The Emerson blockade in Manitoba was cleared the following day, on February 16, 2022.
[42] On February 16, 2022, a motion to confirm the Proclamation was brought before the House of Commons pursuant to section 58 of the Emergencies Act. Pursuant to that provision, an explanation for the reasons for issuing the declaration (the Section 58 Explanation) and a report on any consultation with the Lieutenant Governors in Council of the provinces with respect to the declaration must be laid before each House of Parliament within seven sitting days after the declaration is issued. The Section 58 Explanation and this consultation report were tabled before each House on February 16, 2022.
[43] From February 15 to 23, 2022, the RCMP disclosed information from the OPP, OPS, and its own investigations on about 57 entities and individuals to financial institutions, resulting in the temporary freezing of about 257 accounts of "“designated persons”" under the Economic Order.
[44] From that point on, the Convoy protests lost momentum, as protestors started to leave Ottawa. From February 17 to February 21, 2022, local police arrested 196 people, 110 of whom were charged with offences. The police also removed 115 vehicles and dismantled the blockades on Ottawa streets.
[45] On February 21, 2022, the motion to confirm was adopted by the House of Commons. It was then tabled in the Senate on February 22, 2022.
[46] By then, however, the RCMP was communicating to the financial institutions that they no longer believed the "“designated persons”" they identified were engaging in the activities prohibited by the Regulations and the Economic Order.
[47] On February 23, 2022, the Proclamation was revoked. As a result, the Regulations and the Economic Order were terminated. The same day, the government of Ontario lifted its state of emergency.
[48] On March 3, 2022, a Special Joint Committee on the Declaration of Emergency was established pursuant to the requirements of subsection 62(1) of the Emergencies Act. The parliamentary review committee’s purpose was to review the "“exercise of powers and the performance of duties and functions pursuant to a declaration of emergency”".
[49] On April 25, 2022, an Order in Council was issued to the effect that an inquiry be held into the circumstances leading to the declaration of a public order emergency and the measures taken for dealing with it. The public inquiry was tasked to report before both Houses by February 20, 2023.
[50] The POEC reviewed documents and heard from numerous witnesses, including the Prime Minister and eight other ministers. On February 17, 2023, the POEC Commissioner, Justice Paul Rouleau, issued his report concluding that the threshold for invoking the public order emergency was met.
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[73] On the substantive issues, the Federal Court found that the decision to declare a public emergency order was unreasonable, as it did not satisfy the legal constraints of the Emergencies Act. Essentially, the Federal Court held that the Proclamation did not meet the requirements of subsection 17(1) of the Emergencies Act because: (1) there were no threats to the security of Canada within the meaning of section 2 of the CSIS Act, and (2) there was no national emergency, more specifically one that exceeded the capacity or authority of a province to deal with it and that could not effectively be dealt with under any other law of Canada, as required by the section 3 definition in the Emergencies Act.
....
[75] With respect to the existence of a "“national emergency”", the Federal Court found that the Emergencies Act required the federal government to wait while the provinces or territories determined whether they had the capacity or authority to deal with the threat at hand. It recognized that while most protesters may have had a benign intent, others had a darker purpose and were prepared to resist efforts by the police to dismantle the existing blockades and set up new ones. In its view, however, those threats were being dealt with by the police of provincial and local jurisdiction outside of Ottawa. At paras 59-97 the court reviews the lower Federal Court's JR 'reasonableness review'.
. Canada (Attorney General) v. Canadian Civil Liberties Association [trucker's protest]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court sets out the fact history of this rare federal Emergencies Act case:[1] These appeals raise important and complex issues of constitutional and administrative law in the context of the first ever use of the Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.) (the Act or the Emergencies Act). More specifically, it results from the Proclamation Declaring a Public Order Emergency, S.O.R./2022-20 (the Proclamation) issued by the Governor General in Council (GIC) on February 14, 2022, declaring that it had reasonable grounds to believe a public order emergency existed under subsection 17(1) of the Emergencies Act, which necessitated special temporary measures. That Proclamation was followed, on February 15, 2022, by the Emergency Measures Regulations, S.O.R./2022-21 (the Regulations) and the Emergency Economic Measures Order, S.O.R./2022-22 (the Economic Order).
[2] These measures were taken in the midst of what came to be known as the "“Freedom Convoy 2022”" (the Convoy), which consisted of hundreds of vehicles converging on the national capital on January 28, 2022, protesting Canada’s public health response to the COVID-19 pandemic and the new vaccination requirements for cross-border truckers. The public authorities were also preoccupied by a number of border blockades, the more serious of which occurred at the Sweetgrass-Coutts, Alberta border crossing and at the Ambassador Bridge in Ontario.
....
I. CONTEXT
[9] There is no need to go into every particular of the events leading up to the Proclamation, Regulations and Economic Order. The detailed history of those events was thoroughly canvassed by the POEC, established by Order in Council (P.C. 2022-392) on April 25, 2022, and was also aptly summarized by the Federal Court in its reasons. That being said, it is nevertheless essential to summarize the context within which the government decided to act, as it provides the backdrop against which the reasonableness of the government’s use of the Emergencies Act ought to be assessed. As noted by the Federal Court, the parties are largely in agreement about what happened; their disagreements have more to do with the legal characterization of those events, whether they meet the requirements set out in the Emergencies Act and how they colour the reasonableness of the decision made by the GIC to declare a public order emergency.
[10] On November 19, 2021, the Public Health Agency of Canada announced that as of January 15, 2022, certain groups of travellers, including essential service providers such as truck drivers who had been exempt from vaccine requirements upon entering Canada would now be required to be fully vaccinated.
. The City of Ottawa
[11] As a result of these travel restrictions, the Convoy left Prince Rupert, bound for Ottawa, on January 22, 2022. Initially a trucker-led demonstration, it grew in size and gathered supporters along its way. When it arrived in Ottawa on January 28, 2022, it consisted of thousands of protesters and hundreds of vehicles, including many large transport trucks. The downtown core and Parliamentary Precinct were ground to a halt by the ensuing occupation of the blockade of Convoy trucks and other vehicles.
[12] While many Convoy participants were peaceful, the Convoy also included high-decibel noise disruptions such as honking and fireworks. Exhaust fumes permeated the air and seeped into neighbouring properties. There were reported incidents of harassment, assaults, and intimidation. As the Federal Court noted, this created "“intolerable conditions for many residents and workers in the district”" (Nagle at para. 35).
[13] From January 30 to February 2, 2022, the participants in the Convoy protest began to erect structures and started to organize themselves for a more prolonged occupation, claiming they would not budge until all COVID-19 mandates were revoked. The Ottawa Police Service (OPS) was seemingly unable to impede them from doing so. The OPS launched several criminal investigations into the desecration of national monuments, as well as threatening/illegal/intimidating behaviour toward police officers, but they were clearly outnumbered. The OPS Chief declared on February 2, 2022, that "“there may not be a policing solution”" and "“there need to be other elements brought in to find a safe, swift and sustainable end to this demonstration that’s happening here and across the country”" (Nagle at para. 36).
[14] On February 3, 2022, the Mayor of Ottawa requested additional resources from the Federal and Ontario governments to deal with the situation. That same day, Convoy organizers held a press conference and stated that they would remain in Ottawa until all COVID-19 mandates were removed. On February 6, 2022, the Mayor declared a state of emergency.
[15] On February 7, 2022, the Provincial Operations Intelligence Bureau of the Ontario Provincial Police (OPP) identified the Convoy as a "“threat to national security”" and requested 1,800 additional police officers. A ten-day interim injunction was also granted by the Ontario Superior Court of Justice to silence the truck horns and to prevent parking by-law breaches in downtown Ottawa.
[16] From February 8 to 10, 2022, the Convoy numbered about 418 vehicles, almost 25% of which had children present, hampering police responses and leading to concerns for the children’s safety. Convoy participants and their supporters also engaged in a concerted effort to flood Ottawa’s emergency services with excessive calls designed to overwhelm their capacity to respond. Donations to fund the protest were received by a crowdfunding site, the majority of which were made by U.S.-based donors.
[17] On February 10, 2022, the Prime Minister convened and met with the Incident Response Group (IRG), an advisory body made up of Cabinet members and senior public servants whose role is to advise the Prime Minister in the event of a national crisis. Further meetings of that body were held on February 12 and 13. More will be said later about the information that was considered by the IRG during these meetings. Suffice it to say that there was information to the effect that extremist elements were taking part in the protests. They identified participants who were members of an extremist organization, known as Diagolon, whose founder was arrested in January 2022 before coming to protest in Ottawa, after police found firearms, prohibited magazines, ammunition, and body armour at his home. Other protesters were also wearing yellow Star of David emblems tagged with "“anti-vaxx”" or displaying flags with swastikas, Confederate flags, and Nazi SS symbols.
[18] On February 11, 2022, the government of Ontario declared a province-wide state of emergency in response to interference with critical infrastructure throughout the province, which prevented the movement of people and delivery of essential goods. That same day, the Prime Minister and the President of the United States discussed the ongoing illegal blockades taking place across Canada, including at or near Canada-U.S. border crossings, and their impact on North American trade.
[19] As of February 14, 2022, the day the Proclamation was issued, there were about 500 trucks and other vehicles in downtown Ottawa.
[20] During the occupation, one of the organizing groups, Canada Unity, presented a "“memorandum of understanding”" between itself, the Senate of Canada, and the GIC proposing to form a joint committee to assume government functions in return for which the Convoy would cease its occupation of Ottawa. The Federal Court accepted that this illustrated "“an effort by some of those involved in the Convoy to interfere with the democratic process and undermine the government”" (Nagle at para. 44). It also acknowledged that materials in the tribunal record included information that extremist elements were a part of the protest.
[21] In parallel to the events in Ottawa, protests of the same nature were also taking place at various border crossings between the U.S. and Canada.
B. Elsewhere in Ontario
[22] Three more blockades took place in Ontario: at the Ambassador Bridge in Windsor, the Sarnia Blue Water Bridge, and the Peace Bridge port of entry, respectively the first, second, and third busiest border crossings in Canada.
[23] The Ambassador Bridge blockade began on February 6, 2022. On February 11, 2022, the Superior Court of Justice granted an injunction to end this blockade and on February 13, 2022, the police were able to remove participants. Despite traffic having resumed, the City of Windsor declared a state of emergency the next day.
[24] The blockade at the Sarnia Blue Water Bridge began on February 8, 2022, and access was restored on February 14, 2022.
[25] The Peace Bridge blockade began on February 12, 2022, but by February 14, 2022, provincial and regional police were able to restore the flow of traffic.
C. Alberta
[26] On January 29, 2022, a blockade began at the Sweetgrass-Coutts border crossing in Alberta. On February 5, 2022, Alberta’s Minister of Municipal Affairs sought federal assistance, including the provision of equipment and personnel to help displace about 70 large vehicles and 75 personal and recreational vehicles. The Alberta Minister noted that the Royal Canadian Mounted Police (RCMP) had exhausted all local and regional options to alleviate the disruption at the border.
[27] Eventually, the police were able to set up a checkpoint at Milk River, 18 km away from Coutts. By February 11, 2022, about 250 additional Convoy vehicles were gathered at the checkpoint, but only about 40 vehicles remained in the town of Coutts itself.
[28] On February 14, 2022, the RCMP arrested eleven individuals, four of whom were charged with conspiracy to commit murder in addition to other offences. It also seized a large cache of weapons, including 14 firearms, a large supply of ammunition, high-capacity magazines, and body armour, some of which were marked with the Diagolon insignia.
D. Manitoba
[29] On February 10, 2022, a fifth blockade began in Emerson, Manitoba, at the port of entry. Up to 75 vehicles were involved in the blockade. It appears that cargo like medical supplies and livestock were allowed to pass. Nevertheless, the Premier of Manitoba requested urgent and immediate federal action to dismantle the blockade on February 11, 2022.
E. British Columbia
[30] On February 12, 2022, an incident took place in South Surrey, British Columbia, where protestors broke through a RCMP barricade and forced the closure of the border. The police arrested 16 people in relation to this blockade by February 14, 2022, and the next day, the border was cleared and traffic resumed.
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