Invoc­a­tion of Emer­gen­cies Act was illegal https://cafe.nfshost.com/?p=10945

Christine Van Geyn20 Jan 2026

A gen­er­a­tional civil liber­ties vic­tory has been upheld. On Jan. 16, the Fed­eral Court of Appeal held that the Trudeau gov­ern­ment illeg­ally invoked the Emer­gen­cies Act in 2022 in response to the Free­dom Con­voy.

The unan­im­ous judg­ment, which upheld the lower court’s decision in 2024, is metic­u­lous, dev­ast­at­ing and leaves little room for doubt. Future gov­ern­ments facing polit­ical tur­moil have been put on clear notice: they can­not cas­u­ally reach for emer­gency powers to solve a domestic protest.

The case was brought by the Cana­dian Con­sti­tu­tion Found­a­tion (CCF) and the Cana­dian Civil Liber­ties Asso­ci­ation, along with sev­eral indi­vidu­als dir­ectly affected by the emer­gency meas­ures. The court accep­ted the CCF’S argu­ment that the Emer­gen­cies Act was never meant to be easy to use.

The act was delib­er­ately craf­ted as a response to the abuses of the War Meas­ures Act, infam­ously deployed by Pierre Trudeau dur­ing the Octo­ber Crisis in 1970. Par­lia­ment replaced that law with one designed to restrain exec­ut­ive power, not expand it. As the Fed­eral Court of Appeal emphas­ized, “one must not lose sight … of the his­tory of the Act and of the con­text in which it was adop­ted.” Par­lia­ment, the court noted, “pre­cisely cir­cum­scribed Cab­inet’s dis­cre­tion” to pre­vent the cas­ual or polit­ical use of emer­gency powers.

Yet that is exactly what happened in Feb­ru­ary 2022.

The Trudeau gov­ern­ment invoked the Emer­gen­cies Act in response to noisy and dis­rupt­ive protests in Ott­awa and block­ades at sev­eral bor­der cross­ings. The court rejec­ted, point by point, the gov­ern­ment’s attempt to jus­tify that decision.

To invoke the act law­fully, cab­inet had to reas­on­ably believe that Canada faced a “threat to the secur­ity of Canada” — a term Par­lia­ment delib­er­ately impor­ted from the Cana­dian Secur­ity Intel­li­gence Ser­vice (CSIS) Act and asso­ci­ated with ser­i­ous viol­ence. The gov­ern­ment attemp­ted to dilute that mean­ing, arguing that eco­nomic dis­rup­tion and protest activ­ity could qual­ify.

The court flatly rejec­ted that argu­ment. “To claim that the threshold for declar­ing a pub­lic order emer­gency … could be lower than the threshold for using the sur­veil­lance powers … under the CSIS Act would make little sense,” it wrote. “If any­thing, it should be the reverse.” Emer­gency powers, the judges made clear, demand more jus­ti­fic­a­tion, not less — par­tic­u­larly when they author­ize “a vast array of dra­conian powers without any prior author­iz­a­tion.”

Even more dam­aging was the court’s assess­ment of the evid­ence. Aside from the situ­ation in Coutts, where a weapons cache was dis­covered but resolved using ordin­ary law before the Emer­gen­cies Act was invoked, there was no cred­ible proof of ser­i­ous viol­ence: “When prop­erly under­stood as requir­ing bod­ily harm, the evid­ence is quite simply lack­ing.”

CSIS ITSELF HAD ASSESSED THERE WAS NO THREAT TO NATIONAL SECURITY.

CSIS itself had assessed that there was no threat to national secur­ity, and the gov­ern­ment invoked emer­gency powers before a reques­ted altern­at­ive threat assess­ment was com­pleted.

The court’s con­clu­sion was blunt: “As dis­turb­ing and dis­rupt­ive as the block­ades and protests could be, they fell well short of a threat to national secur­ity.”

The gov­ern­ment also failed the Emer­gen­cies Act’s “last resort” require­ment. Emer­gency powers may be used only when exist­ing laws are insuf­fi­cient. Yet the protests were ulti­mately cleared using the Crim­inal Code — the very tools already avail­able at the time. The RCMP com­mis­sioner at the time had even advised the gov­ern­ment that police had not exhausted their exist­ing powers.

What was lack­ing in Ott­awa, the court observed, was not legal author­ity but poli­cing resources and co-ordin­a­tion. That is not a national emer­gency. It is a fail­ure of gov­ernance.

Equally damning was the gov­ern­ment’s dis­reg­ard for pro­vin­cial oppos­i­tion. Most provinces warned that invok­ing the Emer­gen­cies Act would be unne­ces­sary and divis­ive. Cab­inet failed to mean­ing­fully engage with that oppos­i­tion.

“In a fed­er­a­tion,” the court wrote, “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 judges emphas­ized that if the situ­ation does not exceed capa­city or author­ity of the provinces, “they should be left to their own devices.”

The reg­u­la­tions enacted after the declar­a­tion fared no bet­ter under con­sti­tu­tional scru­tiny.

The court ruled that the sweep­ing ban on assem­blies viol­ated free­dom of expres­sion by crim­in­al­iz­ing mere attend­ance at protests, includ­ing peace­ful expres­sion on Par­lia­ment Hill. Indi­vidu­als could face up to five years in prison “not because of any­thing they were doing,” but because someone else nearby might breach the peace. That, the judges held, was grossly over­broad and uncon­sti­tu­tional.

Per­haps most chilling was the rul­ing on the fin­an­cial meas­ures. Banks were com­pelled to share Cana­dians’ private fin­an­cial inform­a­tion with police without a war­rant, without notice, and without recourse. Fin­an­cial insti­tu­tions were effect­ively dep­u­tized as agents of the state and told to “lever­age the news” and social media to identify sus­pects.

The court found that this ad hoc sys­tem “lacked pro­ced­ural safe­guards” and allowed pri­vacy to be invaded based on “poten­tially unfoun­ded, sub­ject­ive beliefs.” It viol­ated the Charter’s pro­tec­tion against unreas­on­able search and could not be jus­ti­fied.

This decision now stands as bind­ing pre­ced­ent. It places real legal con­straints on future gov­ern­ments and ensures that the Emer­gen­cies Act can­not be repur­posed as a polit­ical con­veni­ence. It restores the act to what Par­lia­ment inten­ded: a nar­row, excep­tional tool, not a blunt instru­ment against dis­sent.

The gov­ern­ment spent mil­lions defend­ing the indefens­ible. It lost com­pletely. And in doing so, it handed Cana­dians one of the most import­ant civil liber­ties rul­ings in a gen­er­a­tion.

That is worth cel­eb­rat­ing. (National Post, January 29, 2026)

Christine Van Geyn is the lit­ig­a­tion dir­ector for the Cana­dian

Con­sti­tu­tion Found­a­tion.

A rights rul­ing to be cel­eb­rated

Invoc­a­tion of Emer­gen­cies Act was illegal

Christine Van Geyn20 Jan 2026

A gen­er­a­tional civil liber­ties vic­tory has been upheld. On Jan. 16, the Fed­eral Court of Appeal held that the Trudeau gov­ern­ment illeg­ally invoked the Emer­gen­cies Act in 2022 in response to the Free­dom Con­voy.

The unan­im­ous judg­ment, which upheld the lower court’s decision in 2024, is metic­u­lous, dev­ast­at­ing and leaves little room for doubt. Future gov­ern­ments facing polit­ical tur­moil have been put on clear notice: they can­not cas­u­ally reach for emer­gency powers to solve a domestic protest.

The case was brought by the Cana­dian Con­sti­tu­tion Found­a­tion (CCF) and the Cana­dian Civil Liber­ties Asso­ci­ation, along with sev­eral indi­vidu­als dir­ectly affected by the emer­gency meas­ures. The court accep­ted the CCF’S argu­ment that the Emer­gen­cies Act was never meant to be easy to use.

The act was delib­er­ately craf­ted as a response to the abuses of the War Meas­ures Act, infam­ously deployed by Pierre Trudeau dur­ing the Octo­ber Crisis in 1970. Par­lia­ment replaced that law with one designed to restrain exec­ut­ive power, not expand it. As the Fed­eral Court of Appeal emphas­ized, “one must not lose sight … of the his­tory of the Act and of the con­text in which it was adop­ted.” Par­lia­ment, the court noted, “pre­cisely cir­cum­scribed Cab­inet’s dis­cre­tion” to pre­vent the cas­ual or polit­ical use of emer­gency powers.

Yet that is exactly what happened in Feb­ru­ary 2022.

The Trudeau gov­ern­ment invoked the Emer­gen­cies Act in response to noisy and dis­rupt­ive protests in Ott­awa and block­ades at sev­eral bor­der cross­ings. The court rejec­ted, point by point, the gov­ern­ment’s attempt to jus­tify that decision.

To invoke the act law­fully, cab­inet had to reas­on­ably believe that Canada faced a “threat to the secur­ity of Canada” — a term Par­lia­ment delib­er­ately impor­ted from the Cana­dian Secur­ity Intel­li­gence Ser­vice (CSIS) Act and asso­ci­ated with ser­i­ous viol­ence. The gov­ern­ment attemp­ted to dilute that mean­ing, arguing that eco­nomic dis­rup­tion and protest activ­ity could qual­ify.

The court flatly rejec­ted that argu­ment. “To claim that the threshold for declar­ing a pub­lic order emer­gency … could be lower than the threshold for using the sur­veil­lance powers … under the CSIS Act would make little sense,” it wrote. “If any­thing, it should be the reverse.” Emer­gency powers, the judges made clear, demand more jus­ti­fic­a­tion, not less — par­tic­u­larly when they author­ize “a vast array of dra­conian powers without any prior author­iz­a­tion.”

Even more dam­aging was the court’s assess­ment of the evid­ence. Aside from the situ­ation in Coutts, where a weapons cache was dis­covered but resolved using ordin­ary law before the Emer­gen­cies Act was invoked, there was no cred­ible proof of ser­i­ous viol­ence: “When prop­erly under­stood as requir­ing bod­ily harm, the evid­ence is quite simply lack­ing.”

CSIS ITSELF HAD ASSESSED THERE WAS NO THREAT TO NATIONAL SECURITY.

CSIS itself had assessed that there was no threat to national secur­ity, and the gov­ern­ment invoked emer­gency powers before a reques­ted altern­at­ive threat assess­ment was com­pleted.

The court’s con­clu­sion was blunt: “As dis­turb­ing and dis­rupt­ive as the block­ades and protests could be, they fell well short of a threat to national secur­ity.”

The gov­ern­ment also failed the Emer­gen­cies Act’s “last resort” require­ment. Emer­gency powers may be used only when exist­ing laws are insuf­fi­cient. Yet the protests were ulti­mately cleared using the Crim­inal Code — the very tools already avail­able at the time. The RCMP com­mis­sioner at the time had even advised the gov­ern­ment that police had not exhausted their exist­ing powers.

What was lack­ing in Ott­awa, the court observed, was not legal author­ity but poli­cing resources and co-ordin­a­tion. That is not a national emer­gency. It is a fail­ure of gov­ernance.

Equally damning was the gov­ern­ment’s dis­reg­ard for pro­vin­cial oppos­i­tion. Most provinces warned that invok­ing the Emer­gen­cies Act would be unne­ces­sary and divis­ive. Cab­inet failed to mean­ing­fully engage with that oppos­i­tion.

“In a fed­er­a­tion,” the court wrote, “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 judges emphas­ized that if the situ­ation does not exceed capa­city or author­ity of the provinces, “they should be left to their own devices.”

The reg­u­la­tions enacted after the declar­a­tion fared no bet­ter under con­sti­tu­tional scru­tiny.

The court ruled that the sweep­ing ban on assem­blies viol­ated free­dom of expres­sion by crim­in­al­iz­ing mere attend­ance at protests, includ­ing peace­ful expres­sion on Par­lia­ment Hill. Indi­vidu­als could face up to five years in prison “not because of any­thing they were doing,” but because someone else nearby might breach the peace. That, the judges held, was grossly over­broad and uncon­sti­tu­tional.

Per­haps most chilling was the rul­ing on the fin­an­cial meas­ures. Banks were com­pelled to share Cana­dians’ private fin­an­cial inform­a­tion with police without a war­rant, without notice, and without recourse. Fin­an­cial insti­tu­tions were effect­ively dep­u­tized as agents of the state and told to “lever­age the news” and social media to identify sus­pects.

The court found that this ad hoc sys­tem “lacked pro­ced­ural safe­guards” and allowed pri­vacy to be invaded based on “poten­tially unfoun­ded, sub­ject­ive beliefs.” It viol­ated the Charter’s pro­tec­tion against unreas­on­able search and could not be jus­ti­fied.

This decision now stands as bind­ing pre­ced­ent. It places real legal con­straints on future gov­ern­ments and ensures that the Emer­gen­cies Act can­not be repur­posed as a polit­ical con­veni­ence. It restores the act to what Par­lia­ment inten­ded: a nar­row, excep­tional tool, not a blunt instru­ment against dis­sent.

The gov­ern­ment spent mil­lions defend­ing the indefens­ible. It lost com­pletely. And in doing so, it handed Cana­dians one of the most import­ant civil liber­ties rul­ings in a gen­er­a­tion.

That is worth cel­eb­rat­ing. (National Post, January 29, 2026)

Christine Van Geyn is the lit­ig­a­tion dir­ector for the Cana­dian

Con­sti­tu­tion Found­a­tion.