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.
G
