|
National Security - Emergencies Act (2). Canada (Attorney General) v. Canadian Civil Liberties Association [interpretation of 'threats']
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 (EA).
Here the court considers an interesting perspective on the modern approach to statutory interpretation, which I will label (for the time being) as 'tolerated difference' - here in the context of interpreting the terms 'threat' and serious violence' within the meaning of the EA [s.16] and CSISA s.2:[188] ... pursuant to which different decision-makers acting in different legislative contexts can reach different interpretations even if the statutory language is similar or even the same. ...
....
[190] In terms of statutory interpretation, there is no doubt that context and purpose must be taken into consideration when interpreting a statute or any other legislative or regulatory instrument. But words still matter. As the Supreme Court stated in Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 at para. 112, citing Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724 at p. 735, the plain and ordinary meaning of a provision is "“the natural meaning which appears when the provision is simply read through”".
[191] This approach is particularly apposite when it is clear from the record that words have been carefully chosen. As noted by the Federal Court, Parliament could have chosen not to provide a definition of "“threats to the security of Canada”" (as it did, for example, in the International Transfer of Offenders Act, S.C. 2004, c. 21, paragraph 10(1)(a)), in which case the threshold might well have been found to be met on a deferential standard of review. Similarly, Parliament could have opted to define that expression for the particular purpose of the Act, as it did for many other terms (including "“national emergency”"), and to broaden the definition of "“threats to the security of Canada”" to include economic threats if it so wished. Instead, Parliament decided to adopt the well-known definition found in the CSIS Act, as it has done in nine other federal statutes: see Access to Information Act, subparagraph 16(1)(a)(iii); Aeronautics Act, R.S.C. 1985, c. A-2, subsections 4.82(5) and (14); Citizenship Act, R.S.C. 1985, c. C-29, subsection 19(1); Corrections and Conditional Release Act, subparagraph 183(2)(a)(iii); Excise Tax Act, R.S.C. 1985, c. E-15, subparagraph 295(5.05)(a)(i); Income Tax Act, R.S.C. 1985, c. 1, subparagraph 241(9)(b)(i) and paragraph 241(9.1)(b); Privacy Act, subparagraph 22(1)(a)(iii); Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, subsection 2(1); Security Offences Act, R.S.C. 1985, c. S-7, paragraph 2(a). Such a conscious choice must be given effect.
[192] As noted by both the CCF and CCLA, it appears from the parliamentary debates surrounding the adoption of the Act that the decision to adopt the definition of "“threats to the security of Canada”" found in the CSIS Act was a deliberate choice to rely on a definition that was well-trodden and had received exhaustive scrutiny by Parliament in the recent past: see the statement in the House of Commons of the Honourable Perrin Beatty, who was the sponsor of the Act, in House of Commons Debates, vol. 9, 2nd Session, 33rd Parl., November 16, 1987, p. 10810.
[193] The approach suggested by the AGC also faces another obstacle. If we were to give a different interpretation to the expression "“threats to the security of Canada”" in the Act from that found in the CSIS Act because of the different contexts, one would have to tweak the meaning of these words in all of the other nine different statutes in which this expression is found to take into consideration all of their various contexts. We would then end up with up to eleven different meanings for the same words. Not only would that result in absurd consequences, but it would offend the clear intent of Parliament to link the use of the same words in a number of statutes to the definition provided in the CSIS Act.
[194] Maybe even more importantly, nowhere has the AGC spelled out precisely how the different context of the Act changes the meaning of "“threats to the security of Canada”". One can only surmise that in his view, these words impose a lower threshold on Cabinet when making use of the extensive powers conferred by the Act than on CSIS when acting pursuant to the CSIS Act. However, that begs the question: why would the "“threats to the security of Canada”" be interpreted less stringently when applying the Act than when applying the CSIS Act?
[195] One could be forgiven for thinking that, if anything, the "“threats to the security of Canada”" should be interpreted more strictly in the context of the Act than in the context of the CSIS Act. After all, the powers conferred on Cabinet once a public order emergency has been declared are much broader and more susceptible to interfere with civil liberties than the powers given to CSIS when investigating a threat to the security of Canada. Under the latter, the phrase "“threats to the security of Canada”" only operates as a threshold for CSIS to exercise its intelligence-gathering mandate for specific activities and for taking measures to reduce such threats (subsection 12(1) and section 12.1). These powers are severely constrained, first by the obligation to obtain a warrant if the threat reduction measures taken would limit a right or freedom guaranteed by the Charter, and second by the express mention that these measures exclude law enforcement powers and the power to detain people (subsection 12.1(4) and paragraph 12.2(1)(e)).
[196] The Act, by contrast, goes much further. Once a public order emergency is declared, Cabinet can restrict public assembly and travel, and create criminal offences for any contravention of an order or regulation made under section 19 of the Act. These powers are much more intrusive, and result in more dramatic consequences, for the persons caught within their ambit.
[197] To claim that the threshold for declaring a public order emergency, which allows Cabinet to make use of a vast array of draconian powers without any prior authorization, could be lower than the threshold for using the surveillance powers and the more circumscribed threat reduction measures under the CSIS Act, would make little sense in our view. If anything, it should be the reverse. Be that as it may, Parliament has decided to apply the same standard in both contexts, and the AGC has not provided any cogent reason not to give effect to its intention.
....
[203] There is a well-known principle of statutory interpretation that the same words should be given the same meaning, both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217. The Supreme Court gave effect to that presumption with respect to the use of the word "“appeal”" in Vavilov (at para. 44), and we see no reason to diverge from that presumption in the present context. As Professor Sullivan stated in an earlier version of her treatise, "“…other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred”": Driedger on the Construction of Statutes (3rd ed. 1994), at p. 288, quoted in R. v. Ulybel Enterprises Ltd., 2001 SCC 56 at para. 30.
[204] Obviously, this presumption of consistency applies with greater strength to statutes dealing with the same subject matter. And it is no doubt true that the context of national security and intelligence differs in some respects from that of a national emergency. But as previously mentioned, Parliament expressly chose to use the definition of "“threats to the security of Canada”" (and its embedded reference to "“serious violence”") found in the CSIS Act to operationalize the Act. Moreover, as previously seen, Cabinet is empowered to make any contravention of an order or regulation adopted under section 19 of the Act a criminal offence, which makes it all the more acceptable to rely on the Criminal Code definition and jurisprudence to interpret undefined terms in the CSIS Act.
....
[208] In light of the text, context and purpose of paragraph (c) of the definition of "“threats to the security of Canada”" in section 2 of the CSIS Act, this expansive interpretation of "“serious violence”" to property is unwarranted and unreasonable. It could stifle all kinds of protests and demonstrations that blockade pipelines, nuclear plants, railway lines and other kinds of infrastructure to advance a cause. There is no indication, either in the definition itself of "“threats to the security of Canada”" in the CSIS Act or in the debates surrounding the adoption of that definition, that the kind of economic disruptions described in the Section 58 Explanation could be the basis for declaring a public order emergency. As previously mentioned, the adoption of the Act was clearly meant to curb the excesses and prevent the abuses that occurred under the WMA. The reference to the definition of "“threats to the security of Canada”" in the CSIS Act, which itself requires threat or use of acts of "“serious violence”", was meant to assuage the concerns that pure economic considerations, especially those of a speculative or tentative nature, would not prevail over democratic values and fundamental freedoms of assembly and expression.
[209] To that extent, we share the view of the Federal Court that it is up to Parliament to revisit the definition of "“threats to the security of Canada”" if it is of the view that it does not adequately cover the various types of harms that may result from an emergency situation, such as those of an economic nature. For the time being, we must take the Act as it reads, and not as the AGC would like it to read. It would stretch beyond rationality the meaning of the words "“serious violence”", when applied to property, if they were to encompass purely economic consequences or speculative disruption of essential goods and services. . Canada (Attorney General) v. Canadian Civil Liberties Association [threats]
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 considers the first essential requirement for a proclamation of a 'public order emergency' - ie. that it "arises from threats to the security of Canada" [EA s.16 'public order emergency' (def'n), which adopts s.2 of the Canadian Security Intelligence Service Act (CSISA)]:[186] Under subsection 17(1) of the Act, Cabinet must "“believe, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency”" before it can so declare by proclamation. Section 16, in turn, defines a "“public order emergency”" as "“an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency”". Finally, section 16 provides that the phrase "“threats to the security of Canada”" has the meaning assigned by section 2 of the CSIS Act (reproduced above at paragraph 148).
[187] Of the four activities, there is no dispute that the only relevant one for the purpose of these proceedings is the third one (i.e., "“activities within or relating to Canada 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 within Canada or a foreign state”"). .... Readers should refer to paras 188-232 where the court engages in an extensive consideration of these issues, concluding:[233] When all these legal and factual considerations are taken into account, we fail to see how the GIC could "“reasonably believe”" that a threat to national security existed at the time the decision to invoke the Act was made. Like the Federal Court, we are of the view that on a proper interpretation of the Act, consistent with its exacting language and with the context of its adoption, the evidence was insufficient to conclude that there was an objective basis (supported by credible and compelling information) for the belief that a "“threat to the security of Canada”" existed. . Canada (Attorney General) v. Canadian Civil Liberties Association [national emergency]
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 considers the second essential requirement for a proclamation of a 'public order emergency' - ie. "that is so serious as to be a national emergency" [EA s.16 'public order emergency' (def'n)]:[234] We have already found that Cabinet, on the evidence that was before it and on a proper interpretation of the Act, did not have reasonable grounds to believe that a threat to national security existed. We will now turn to the second prerequisite, that the threats to the security of Canada are so serious as to be a national emergency. Section 3 defines a "“national emergency”" as an "“urgent and critical situation of a temporary nature”" that 1) "“seriously endangers the lives, health or safety of Canadians”", 2) "“exceed[s] the capacity or authority of a province to deal with it”", and (3) "“cannot be effectively dealt with under any other law of Canada”". Section 3 also sets out another kind of national emergency in reference to a situation that would seriously threaten the federal government’s ability to preserve Canada’s sovereignty, security and territorial integrity, but it has not been alleged that the protests rose to that level. Readers should refer to paras 235-286 where the court engages in an extensive consideration of these issues, concluding:[287] For all of the above reasons, we are of the view that Cabinet did not have reasonable grounds to believe that a national emergency existed, taking into account the wording of the Act, its constitutional underpinning and the record that was before it at the time the decision was made. In light of the fact that the two other requirements to declare a public order emergency were not met either, we are therefore of the view that the Proclamation was unreasonable and ultra vires. . Canada (Attorney General) v. Canadian Civil Liberties Association [basics of emergency proclamations]
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 considers the history and structure of the Emergencies Act:(1) The legal framework
[145] The Emergencies Act was enacted in 1988, with a view to addressing the criticisms that had been levelled at its predecessor, the War Measures Act, R.S.C. 1985, c. W-2 (WMA) and its use during the October Crisis in 1970 (the version in effect in 1970 had essentially the same wording). The only requirement to bring it into effect and confer exceptional powers upon the GIC was not very exacting and of a purely formal nature. The issuance of a proclamation by Her Majesty, or under the authority of the GIC, was sufficient and that decision was unconstrained and largely left to the discretion of the federal Cabinet. Section 2 of the WMA read as follows:2. The issue of a proclamation by Her Majesty or under the authority of the Governor in Council shall be conclusive evidence that war, invasion or insurrection, real or apprehended, exists and has existed for any period of time therein stated, and of its continuance, until by the issue of a further proclamation it is declared that the war, invasion or insurrection no longer exists.
2. La prise d’une proclamation par Sa Majesté, ou sous l’autorité du gouverneur en conseil, est une preuve concluante que l’état de guerre, d’invasion ou d’insurrection, réelle ou appréhendée, existe et a existé pendant toute la période de temps qui y est énoncée et que cet état continue jusqu’à ce que, par une proclamation ultérieure, il soit déclaré qu’il a pris fin. [146] The Emergencies Act is far more detailed, both in terms of the various types of emergencies that it is meant to address and with respect to the conditions to be met for the Act to be brought into operation. For the purposes of a Public Order Emergency, the only type of emergency with which we are concerned here, section 17 lays out a number of objective prerequisites to which Cabinet must turn its mind before issuing a proclamation.
[147] First, pursuant to subsection 17(1), it must believe, "“on reasonable grounds”", that a "“public order emergency”" exists that necessitates the taking of special temporary measures for dealing with the emergency. Consultation must also take place with the provinces before Cabinet issues a declaration of a public order emergency in each province in which the effects of the emergency occur (subsections 17(1) and 25(1)). If the effects of the emergency are confined to one province, subsection 25(3) goes even further: a public order emergency may not be declared unless "“the province has indicated to the Governor in Council that the emergency exceeds the capacity or authority of the province to deal with it”".
[148] Second, the declaration of a public order emergency must specify, as provided by subsection 17(2):(a) concisely the state of affairs constituting the emergency;
a) une description sommaire de l’état d’urgence;
(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and
b) l’indication des mesures d’intervention que le gouverneur en conseil juge nécessaires pour faire face à l’état d’urgence;
(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.
c) si l’état d’urgence ne touche pas tout le Canada, la désignation de la zone touchée. [149] Interestingly, section 16 defines two key concepts for the operationalization of subsection 17(1):public order emergency means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency; (état d’urgence)
état d’urgence Situation de crise causée par des menaces envers la sécurité du Canada d’une gravité telle qu’elle constitue une situation de crise nationale. (public order emergency)
threats to the security of Canada has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act. (menaces envers la sécurité du Canada)
menaces envers la sécurité du Canada S’entend au sens de l’article 2 de la Loi sur le service canadien du renseignement de sécurité. (threats to the security of Canada) [150] Closely related to these definitions are the definitions of a "“national emergency”" found in section 3 of the Emergencies Act, and of "“threats to the security of Canada”" found in section 2 of the CSIS Act:Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.)
Loi sur les mesures d’urgence,
L.R.C. (1985), ch. 22 (4e suppl.)
3 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that
3 Pour l’application de la présente loi, une situation de crise nationale résulte d’un concours de circonstances critiques à caractère d’urgence et de nature temporaire, auquel il n’est pas possible de faire face adéquatement sous le régime des lois du Canada et qui, selon le cas :
(a) seriously endangers 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, or
a) met gravement en danger la vie, la santé ou la sécurité des Canadiens et échappe à la capacité ou aux pouvoirs d’intervention des provinces;
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
b) menace gravement la capacité du gouvernement du Canada de garantir la souveraineté, la sécurité et l’intégrité territoriale du pays.
and that cannot be effectively dealt with under any other law of Canada.
[EN BLANC]
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23
Loi sur le Service canadien du renseignement de sécurité, L.R.C. (1985), ch. C-23
2 threats to the security of Canada means
2 menaces envers la sécurité du Canada Constituent des menaces envers la sécurité du Canada les activités suivantes :
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
a) l’espionnage ou le sabotage visant le Canada ou préjudiciables à ses intérêts, ainsi que les activités tendant à favoriser ce genre d’espionnage ou de sabotage;
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person;
b) les activités influencées par l’étranger qui touchent le Canada ou s’y déroulent et sont préjudiciables à ses intérêts, et qui sont d’une nature clandestine ou trompeuse ou comportent des menaces envers quiconque;
(c) activities within or relating to Canada 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 within Canada or a foreign state, and
c) les activités qui touchent le Canada ou s’y déroulent et visent à favoriser l’usage de la violence grave ou de menaces de violence contre des personnes ou des biens dans le but d’atteindre un objectif politique, religieux ou idéologique au Canada ou dans un État étranger;
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
d) les activités qui, par des actions cachées et illicites, visent à saper le régime de gouvernement constitutionnellement établi au Canada ou dont le but immédiat ou ultime est sa destruction ou son renversement, par la violence.
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). (menaces envers la sécurité du Canada)
La présente définition ne vise toutefois pas les activités licites de défense d’une cause, de protestation ou de manifestation d’un désaccord qui n’ont aucun lien avec les activités mentionnées aux alinéas a) à d). (threats to the security of Canada)
|
