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National Security - Emergency Act (3). Canada (Attorney General) v. Canadian Civil Liberties Association
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 states the allocation of policing responsibility within the Canadian federation:[286] In a federation, provinces should be left to determine for themselves how best to deal with a critical situation, especially when it largely calls for the application of the Criminal Code by police forces. The emergency power (and, with it, the suspension of the constitutional division of powers) cannot be employed to override a provincial government’s decision not to exercise its powers, or to exercise them in a manner that does not conform with the preferences of the federal government. To the extent that a situation is not of such proportions or nature as to exceed the capacity or authority of the provinces, they should be left to their own devices. Of course, the federal government could nevertheless issue a declaration of a public order emergency if the situation seriously threatens its ability to preserve the sovereignty, security and territorial integrity of Canada, pursuant to the second branch of the national emergency definition at section 3 of the Act. . Canada (Attorney General) v. Canadian Civil Liberties Association [freedom of expression and the Emergency Act]
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).
The court considers whether breaches of Charter of s.2(b) ['freedom of expression'] were justified under Charter s.1, here in this national security EA and political speech context:(iv) Step 3: Can the limitation on protesters’ freedom of expression imposed by the Regulations be justified under section 1 of the Charter?
[354] Section 1 of the Charter provides that rights protected by the Charter may be subject to "“reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”".
[355] To the extent that some forms of participation in the Convoy protests could be considered to be protected forms of political expression, the AGC submits that the Federal Court erred in finding that the limits placed on such expressive rights by the Regulations were not justified under section 1 of the Charter. The AGC says that the Regulations were a proportional means of achieving the government’s goal, which was to bring about a peaceful end to the unlawful occupations and blockades with their significant adverse impacts, and to prevent their recurrence.
[356] The party seeking to uphold a limitation on a right or freedom guaranteed by the Charter bears the burden of demonstrating on a balance of probabilities that the infringement is justified: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 [Oakes] at paras. 66–67. We understand the parties to agree that the test to be applied in determining whether the Regulations are saved by section 1 of the Charter is that first articulated by the Supreme Court in Oakes.
[357] That is, to establish a section 1 justification, the AGC must demonstrate that the objectives of the Regulations were pressing and substantial. The AGC must further demonstrate that the impairment of the rights at issue was proportional to the importance of those objectives, in that the means chosen were rationally connected to the objectives of the Regulations, and that they impair the Charter rights minimally or "“as little as possible”": R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 at para. 139. That is, whether "“the law falls within a range of reasonable alternatives”": see RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68 [RJR-MacDonald Inc.] at para. 160.
[358] The proportionality inquiry attempts to guide the balancing of competing individual and group interests protected by section 1 of the Charter: Keegstra at para. 42.
[359] The infringing measures must, moreover, be justified based on a "“rational inference from evidence or established truths”": RJR-MacDonald Inc. at para. 128. Bare assertions will not suffice: evidence, supplemented by common sense and inference, is needed: Sharpe at para. 78.
[360] There is no real dispute between the AGC and most of the respondents that the Government had a pressing and substantial objective in enacting the Regulations, namely clearing out the blockades that had formed as part of the protests. The CCF and CCLA further acknowledge that the Regulations were rationally connected to the goal of ending the blockades. The issue that divides the parties is whether the measures set out in the Regulations were minimally impairing, that is, whether protesters’ right to freedom of expression was infringed as little as is reasonably possible.
[361] The AGC notes that properly characterizing the Regulations’ objective is essential in assessing the proportionality of the means chosen to achieve them. Here, however, the Federal Court went no further than describing the purpose of both the Regulations and the Economic Order as being "“to clear out the blockades that had formed as part of the protest”". Although the Federal Court accepted that this purpose was pressing and substantial and that the measures chosen by the GIC were rationally connected to it, the AGC says that the Court’s failure to appreciate how the measures operationalized it compromised its analysis.
[362] As noted earlier, the AGC contends that the Federal Court erred in finding that the Regulations were not proportional, as section 1 of the Charter "“does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be ‘reasonable’ and ‘demonstrably justified’”": Hutterian Brethren at para. 37. It is also not necessary to show that Parliament adopted the least restrictive means of achieving its goal in order to establish that the measures taken minimally impaired the rights in issue. Rather, it will be sufficient if the means adopted fall within a range of reasonable solutions to the problem confronted, leaving a reasonable margin of actions available to the state.
[363] The AGC submits that, to the extent that the Regulations limited protesters’ right to freedom of expression, the measures chosen by the GIC in this case were minimally impairing as any such limit was minimal, temporary, and justified in light of the unique urgency and circumstances of the unfolding public order emergency.
[364] The Supreme Court tells us, however, that a law must "“be reasonably tailored to its objectives”" and that "“it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account”": Sharpe at para. 96 [underlining in the original].
[365] As noted, the AGC submits that the Regulations were carefully tailored and fell within the range of reasonable alternatives for practically resolving the blockades and occupations. According to the AGC, the Federal Court erred by failing to consider whether, at the relevant time, the GIC reasonably considered that the protests could spread, and that national measures were necessary. Instead, the AGC says the Federal Court came to its own hindsight-driven conclusion, without affording the GIC the deference required under section 1 of the Charter.
[366] As a result of the occupation, many government functions were undermined and conditions in downtown Ottawa had become intolerable due to the blockade. Considering this, the AGC says that the Federal Court erred by requiring the GIC to have accepted options that would have been less effective in achieving the Regulations’ objectives, and that it was necessary for all individuals to be removed and denied further access to protest sites in order to ensure a safe and effective resolution that would re-establish public order permanently.
[367] Moreover, where, as here, the interests and rights of the parties conflicted, the AGC says that it was not open to the Federal Court to intervene merely because, with the benefit of hindsight, it thought of better, less intrusive ways to manage the problem. The Federal Court erred by failing to accord deference where the means chosen by the GIC fell within a range of reasonable solutions to the problem confronted. Peaceable protesters were free to protest outside of the restricted areas, and once order had been re-established and the Proclamation was revoked, peaceable protesters were once again able to resume their protests on Parliament Hill.
[368] In light of these considerations, the AGC says that the Regulations were minimally impairing, and their collective benefit outweighed any deleterious effects that they may have had. As a result, any limitation of protestors’ paragraph 2(b) right to freedom of expression was proportional and justified under section 1 of the Charter.
[369] The respondents submit that one less-impairing way to have achieved the government’s goal would have been to limit the geographic reach of the Regulations to the places where protests actually existed, instead of having them apply nationally. For example, the reach of the Regulations could have been limited to Ontario, which faced the most intransigent situations. While this was the case at the time that the Regulations were enacted, the AGC submits that the Government could not have assumed that the situations would remain constant.
[370] We agree, but note that even if the GIC could not have known on February 15, 2022, that existing legislative tools were proving effective in Alberta, or have known with any degree of certainty that the border blockade at Coutts had in fact been finally resolved by the time that the Emergencies Act was invoked and the Regulations enacted, there were other, less impairing alternatives that were available to the GIC.
[371] For example, the GIC would have known on February 15, 2022, that the geographic reach of the Regulations could have been limited to Ontario and Alberta, where protests had been most active. The Regulations could then have been amended to cover other jurisdictions in the future, if necessary. This is not a "“hindsight driven”" suggestion. The wording of the Emergencies Act specifically contemplates that public order emergencies do not need to be declared nationally, but can extend "“only to a specified area of Canada”": subsection 19(2).
[372] Another way that the Regulations could have been made less impairing would have been to limit their application to those individuals actually disrupting the flow of traffic or otherwise behaving in a manner that could reasonably be expected to lead to a breach of the peace. The GIC could have created an exception within the Regulations for peaceable protesters.
[373] As discussed earlier, while the Regulations captured protesters who parked their trucks on Wellington Street and refused to move, disrupting the flow of traffic or who otherwise behaved in a manner that could reasonably be expected to lead to a breach of the peace, the Regulations also caught peaceable protesters. The Regulations were clearly not minimally impairing as they related to these individuals.
[374] That is, the GIC could have achieved the federal government’s goal by limiting the reach of the Regulations to participants in the blockades themselves, instead of creating a prohibition on participating in a protest that involved a blockade. Rather than prohibiting participation in a protest that involved a blockade, the GIC could have prohibited the creation of blockades, tying its prohibition to the act of interrupting the normal flow of traffic, differentiating peaceable protesters from those creating blockades.
[375] Indeed, prohibiting the creation of blockades was the approach taken in Nova Scotia and Ontario in their emergencies measures responses, both of which were enacted prior to February 15, 2022.
[376] Nova Scotia’s Highway Blockade Ban (Direction of the Minister under a Declared State of Emergency (Section 14 of the Emergency Management Act) (22-002) (dated January 28, 2022)) tied its prohibition to the specific act of interrupting the "“normal flow of vehicle traffic”", differentiating those who were peacefully protesting the government from those who were creating blockades and disrupting traffic. The directive also refrained from imposing criminal sanctions. Instead, it created fines of between $3,000 and $10,000 for individuals and $20,000 and $100,000 for corporations.
[377] Ontario’s emergency regulation similarly limited the prohibitions to those actually engaged in the specific harm of blockades. The Critical Infrastructure and Highways Regulation, O. Reg. 71/22, prohibited people from impeding access to critical infrastructures and highways, giving police the power to order a person to move or to remove objects such as trucks, if they had reasonable grounds to believe that the person was contravening the Regulation. If the person failed to comply, police could remove the object.
[378] The Federal Court thus did not err in finding that the limitations on freedom of expression created by subsection 2(1) of the Regulations had not been justified under section 1 of the Charter, as the scope of the Regulations was overbroad, and thus not minimally impairing.
[379] Section 4 of the Regulations was similarly overbroad. It captured peaceable protesters who simply walked over to a public assembly where others were disrupting the movement of traffic, even if they had no intention of helping or joining in the disruption of movement. These individuals were caught by the Regulations and subject to up to five years imprisonment, not because of anything they were doing but because they were at the same event as other people who either were breaching or might breach the peace.
[380] Moreover, by prohibiting anyone from providing "“property”" to those participating in a "“public assembly”", section 5 of the Regulations caught people who provided food or water to peaceable protesters, while others were disrupting traffic, once again limiting the expressive rights of people who had done nothing to breach the peace.
[381] The minimal impairment analysis does not ask whether the GIC chose the "“most effective”" option for achieving its objective. Indeed, "“the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure”": Hutterian Brethren at para. 55. It asks instead whether there was another option, less impairing of Charter rights, that was "“sufficient”".
[382] As explained above, there were a number of options open to the GIC that would have been less broad, and less impairing of individuals’ expressive rights. Consequently, the AGC has failed to establish that the Regulations were minimally impairing, or that their collective benefit outweighed any deleterious effects that they may have had. As a result, the breach of protestors’ paragraph 2(b) right to freedom of expression was not justified under section 1 of the Charter.
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