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Statutory Interpretation - Modern Principle - 'Tolerated Uncertainty'. 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. ...
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[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.
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[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.
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[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.
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