{"id":10945,"date":"2026-01-21T02:10:08","date_gmt":"2026-01-21T07:10:08","guid":{"rendered":"https:\/\/cafe.nfshost.com\/?p=10945"},"modified":"2026-01-21T02:10:29","modified_gmt":"2026-01-21T07:10:29","slug":"a-rights-ruling-to-be-celebrated","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=10945","title":{"rendered":"A rights rul\u00ading to be cel\u00adeb\u00adrated"},"content":{"rendered":"\n

Invoc\u00ada\u00adtion of Emer\u00adgen\u00adcies Act was illegal https:\/\/cafe.nfshost.com\/?p=10945<\/h2>\n\n\n\n
$\"Police$ <\/figure>\n\n\n\n
$\"National$ <\/figure>\n\n\n\n
Christine Van Geyn20 Jan 2026<\/p>\n\n\n\n
A gen\u00ader\u00ada\u00adtional civil liber\u00adties vic\u00adtory has been upheld. On Jan. 16, the Fed\u00aderal Court of Appeal held that the Trudeau gov\u00adern\u00adment illeg\u00adally invoked the Emer\u00adgen\u00adcies Act in 2022 in response to the Free\u00addom Con\u00advoy.<\/p>\n\n\n\n
The unan\u00adim\u00adous judg\u00adment, which upheld the lower court\u2019s decision in 2024, is metic\u00adu\u00adlous, dev\u00adast\u00adat\u00ading and leaves little room for doubt. Future gov\u00adern\u00adments facing polit\u00adical tur\u00admoil have been put on clear notice: they can\u00adnot cas\u00adu\u00adally reach for emer\u00adgency powers to solve a domestic protest.<\/p>\n\n\n\n
The case was brought by the Cana\u00addian Con\u00adsti\u00adtu\u00adtion Found\u00ada\u00adtion (CCF) and the Cana\u00addian Civil Liber\u00adties Asso\u00adci\u00adation, along with sev\u00aderal indi\u00advidu\u00adals dir\u00adectly affected by the emer\u00adgency meas\u00adures. The court accep\u00adted the CCF\u2019S argu\u00adment that the Emer\u00adgen\u00adcies Act was never meant to be easy to use.<\/p>\n\n\n\n
The act was delib\u00ader\u00adately craf\u00adted as a response to the abuses of the War Meas\u00adures Act, infam\u00adously deployed by Pierre Trudeau dur\u00ading the Octo\u00adber Crisis in 1970. Par\u00adlia\u00adment replaced that law with one designed to restrain exec\u00adut\u00adive power, not expand it. As the Fed\u00aderal Court of Appeal emphas\u00adized, \u201cone must not lose sight … of the his\u00adtory of the Act and of the con\u00adtext in which it was adop\u00adted.\u201d Par\u00adlia\u00adment, the court noted, \u201cpre\u00adcisely cir\u00adcum\u00adscribed Cab\u00adinet\u2019s dis\u00adcre\u00adtion\u201d to pre\u00advent the cas\u00adual or polit\u00adical use of emer\u00adgency powers.<\/p>\n\n\n\n
Yet that is exactly what happened in Feb\u00adru\u00adary 2022.<\/p>\n\n\n\n
The Trudeau gov\u00adern\u00adment invoked the Emer\u00adgen\u00adcies Act in response to noisy and dis\u00adrupt\u00adive protests in Ott\u00adawa and block\u00adades at sev\u00aderal bor\u00adder cross\u00adings. The court rejec\u00adted, point by point, the gov\u00adern\u00adment\u2019s attempt to jus\u00adtify that decision.<\/p>\n\n\n\n
To invoke the act law\u00adfully, cab\u00adinet had to reas\u00adon\u00adably believe that Canada faced a \u201cthreat to the secur\u00adity of Canada\u201d \u2014 a term Par\u00adlia\u00adment delib\u00ader\u00adately impor\u00adted from the Cana\u00addian Secur\u00adity Intel\u00adli\u00adgence Ser\u00advice (CSIS) Act and asso\u00adci\u00adated with ser\u00adi\u00adous viol\u00adence. The gov\u00adern\u00adment attemp\u00adted to dilute that mean\u00ading, arguing that eco\u00adnomic dis\u00adrup\u00adtion and protest activ\u00adity could qual\u00adify.<\/p>\n\n\n\n
The court flatly rejec\u00adted that argu\u00adment. \u201cTo claim that the threshold for declar\u00ading a pub\u00adlic order emer\u00adgency … could be lower than the threshold for using the sur\u00adveil\u00adlance powers … under the CSIS Act would make little sense,\u201d it wrote. \u201cIf any\u00adthing, it should be the reverse.\u201d Emer\u00adgency powers, the judges made clear, demand more jus\u00adti\u00adfic\u00ada\u00adtion, not less \u2014 par\u00adtic\u00adu\u00adlarly when they author\u00adize \u201ca vast array of dra\u00adconian powers without any prior author\u00adiz\u00ada\u00adtion.\u201d<\/p>\n\n\n\n
Even more dam\u00adaging was the court\u2019s assess\u00adment of the evid\u00adence. Aside from the situ\u00adation in Coutts, where a weapons cache was dis\u00adcovered but resolved using ordin\u00adary law before the Emer\u00adgen\u00adcies Act was invoked, there was no cred\u00adible proof of ser\u00adi\u00adous viol\u00adence: \u201cWhen prop\u00aderly under\u00adstood as requir\u00ading bod\u00adily harm, the evid\u00adence is quite simply lack\u00ading.\u201d<\/p>\n\n\n\n
\n
CSIS ITSELF HAD ASSESSED THERE WAS NO THREAT TO NATIONAL SECURITY.<\/p>\n<\/blockquote>\n\n\n\n
CSIS itself had assessed that there was no threat to national secur\u00adity, and the gov\u00adern\u00adment invoked emer\u00adgency powers before a reques\u00adted altern\u00adat\u00adive threat assess\u00adment was com\u00adpleted.<\/p>\n\n\n\n
The court\u2019s con\u00adclu\u00adsion was blunt: \u201cAs dis\u00adturb\u00ading and dis\u00adrupt\u00adive as the block\u00adades and protests could be, they fell well short of a threat to national secur\u00adity.\u201d<\/p>\n\n\n\n
The gov\u00adern\u00adment also failed the Emer\u00adgen\u00adcies Act\u2019s \u201clast resort\u201d require\u00adment. Emer\u00adgency powers may be used only when exist\u00ading laws are insuf\u00adfi\u00adcient. Yet the protests were ulti\u00admately cleared using the Crim\u00adinal Code \u2014 the very tools already avail\u00adable at the time. The RCMP com\u00admis\u00adsioner at the time had even advised the gov\u00adern\u00adment that police had not exhausted their exist\u00ading powers.<\/p>\n\n\n\n
What was lack\u00ading in Ott\u00adawa, the court observed, was not legal author\u00adity but poli\u00adcing resources and co-ordin\u00ada\u00adtion. That is not a national emer\u00adgency. It is a fail\u00adure of gov\u00adernance.<\/p>\n\n\n\n
Equally damning was the gov\u00adern\u00adment\u2019s dis\u00adreg\u00adard for pro\u00advin\u00adcial oppos\u00adi\u00adtion. Most provinces warned that invok\u00ading the Emer\u00adgen\u00adcies Act would be unne\u00adces\u00adsary and divis\u00adive. Cab\u00adinet failed to mean\u00ading\u00adfully engage with that oppos\u00adi\u00adtion.<\/p>\n\n\n\n
\u201cIn a fed\u00ader\u00ada\u00adtion,\u201d the court wrote, \u201cprovinces should be left to determ\u00adine for them\u00adselves how best to deal with a crit\u00adical situ\u00adation, espe\u00adcially when it largely calls for the applic\u00ada\u00adtion of the Crim\u00adinal Code by police forces.\u201d The judges emphas\u00adized that if the situ\u00adation does not exceed capa\u00adcity or author\u00adity of the provinces, \u201cthey should be left to their own devices.\u201d<\/p>\n\n\n\n
The reg\u00adu\u00adla\u00adtions enacted after the declar\u00ada\u00adtion fared no bet\u00adter under con\u00adsti\u00adtu\u00adtional scru\u00adtiny.<\/p>\n\n\n\n
The court ruled that the sweep\u00ading ban on assem\u00adblies viol\u00adated free\u00addom of expres\u00adsion by crim\u00adin\u00adal\u00adiz\u00ading mere attend\u00adance at protests, includ\u00ading peace\u00adful expres\u00adsion on Par\u00adlia\u00adment Hill. Indi\u00advidu\u00adals could face up to five years in prison \u201cnot because of any\u00adthing they were doing,\u201d but because someone else nearby might breach the peace. That, the judges held, was grossly over\u00adbroad and uncon\u00adsti\u00adtu\u00adtional.<\/p>\n\n\n\n
Per\u00adhaps most chilling was the rul\u00ading on the fin\u00adan\u00adcial meas\u00adures. Banks were com\u00adpelled to share Cana\u00addians\u2019 private fin\u00adan\u00adcial inform\u00ada\u00adtion with police without a war\u00adrant, without notice, and without recourse. Fin\u00adan\u00adcial insti\u00adtu\u00adtions were effect\u00adively dep\u00adu\u00adtized as agents of the state and told to \u201clever\u00adage the news\u201d and social media to identify sus\u00adpects.<\/p>\n\n\n\n
The court found that this ad hoc sys\u00adtem \u201clacked pro\u00adced\u00adural safe\u00adguards\u201d and allowed pri\u00advacy to be invaded based on \u201cpoten\u00adtially unfoun\u00added, sub\u00adject\u00adive beliefs.\u201d It viol\u00adated the Charter\u2019s pro\u00adtec\u00adtion against unreas\u00adon\u00adable search and could not be jus\u00adti\u00adfied.<\/p>\n\n\n\n
This decision now stands as bind\u00ading pre\u00adced\u00adent. It places real legal con\u00adstraints on future gov\u00adern\u00adments and ensures that the Emer\u00adgen\u00adcies Act can\u00adnot be repur\u00adposed as a polit\u00adical con\u00adveni\u00adence. It restores the act to what Par\u00adlia\u00adment inten\u00added: a nar\u00adrow, excep\u00adtional tool, not a blunt instru\u00adment against dis\u00adsent.<\/p>\n\n\n\n
The gov\u00adern\u00adment spent mil\u00adlions defend\u00ading the indefens\u00adible. It lost com\u00adpletely. And in doing so, it handed Cana\u00addians one of the most import\u00adant civil liber\u00adties rul\u00adings in a gen\u00ader\u00ada\u00adtion.<\/p>\n\n\n\n
That is worth cel\u00adeb\u00adrat\u00ading. (National Post<\/u><\/strong>, January 29, 2026)<\/p>\n\n\n\n
Christine Van Geyn is the lit\u00adig\u00ada\u00adtion dir\u00adector for the Cana\u00addian<\/em><\/p>\n\n\n\n
Con\u00adsti\u00adtu\u00adtion Found\u00ada\u00adtion.<\/em><\/p>\n\n\n\n
A rights rul\u00ading to be cel\u00adeb\u00adrated<\/h1>\n\n\n\n
Invoc\u00ada\u00adtion of Emer\u00adgen\u00adcies Act was illegal<\/h2>\n\n\n\n
$\"Police$ <\/figure>\n\n\n\n
$\"National$ <\/figure>\n\n\n\n
Christine Van Geyn20 Jan 2026<\/p>\n\n\n\n
A gen\u00ader\u00ada\u00adtional civil liber\u00adties vic\u00adtory has been upheld. On Jan. 16, the Fed\u00aderal Court of Appeal held that the Trudeau gov\u00adern\u00adment illeg\u00adally invoked the Emer\u00adgen\u00adcies Act in 2022 in response to the Free\u00addom Con\u00advoy.<\/p>\n\n\n\n
The unan\u00adim\u00adous judg\u00adment, which upheld the lower court\u2019s decision in 2024, is metic\u00adu\u00adlous, dev\u00adast\u00adat\u00ading and leaves little room for doubt. Future gov\u00adern\u00adments facing polit\u00adical tur\u00admoil have been put on clear notice: they can\u00adnot cas\u00adu\u00adally reach for emer\u00adgency powers to solve a domestic protest.<\/p>\n\n\n\n
The case was brought by the Cana\u00addian Con\u00adsti\u00adtu\u00adtion Found\u00ada\u00adtion (CCF) and the Cana\u00addian Civil Liber\u00adties Asso\u00adci\u00adation, along with sev\u00aderal indi\u00advidu\u00adals dir\u00adectly affected by the emer\u00adgency meas\u00adures. The court accep\u00adted the CCF\u2019S argu\u00adment that the Emer\u00adgen\u00adcies Act was never meant to be easy to use.<\/p>\n\n\n\n
The act was delib\u00ader\u00adately craf\u00adted as a response to the abuses of the War Meas\u00adures Act, infam\u00adously deployed by Pierre Trudeau dur\u00ading the Octo\u00adber Crisis in 1970. Par\u00adlia\u00adment replaced that law with one designed to restrain exec\u00adut\u00adive power, not expand it. As the Fed\u00aderal Court of Appeal emphas\u00adized, \u201cone must not lose sight … of the his\u00adtory of the Act and of the con\u00adtext in which it was adop\u00adted.\u201d Par\u00adlia\u00adment, the court noted, \u201cpre\u00adcisely cir\u00adcum\u00adscribed Cab\u00adinet\u2019s dis\u00adcre\u00adtion\u201d to pre\u00advent the cas\u00adual or polit\u00adical use of emer\u00adgency powers.<\/p>\n\n\n\n
Yet that is exactly what happened in Feb\u00adru\u00adary 2022.<\/p>\n\n\n\n
The Trudeau gov\u00adern\u00adment invoked the Emer\u00adgen\u00adcies Act in response to noisy and dis\u00adrupt\u00adive protests in Ott\u00adawa and block\u00adades at sev\u00aderal bor\u00adder cross\u00adings. The court rejec\u00adted, point by point, the gov\u00adern\u00adment\u2019s attempt to jus\u00adtify that decision.<\/p>\n\n\n\n
To invoke the act law\u00adfully, cab\u00adinet had to reas\u00adon\u00adably believe that Canada faced a \u201cthreat to the secur\u00adity of Canada\u201d \u2014 a term Par\u00adlia\u00adment delib\u00ader\u00adately impor\u00adted from the Cana\u00addian Secur\u00adity Intel\u00adli\u00adgence Ser\u00advice (CSIS) Act and asso\u00adci\u00adated with ser\u00adi\u00adous viol\u00adence. The gov\u00adern\u00adment attemp\u00adted to dilute that mean\u00ading, arguing that eco\u00adnomic dis\u00adrup\u00adtion and protest activ\u00adity could qual\u00adify.<\/p>\n\n\n\n
The court flatly rejec\u00adted that argu\u00adment. \u201cTo claim that the threshold for declar\u00ading a pub\u00adlic order emer\u00adgency … could be lower than the threshold for using the sur\u00adveil\u00adlance powers … under the CSIS Act would make little sense,\u201d it wrote. \u201cIf any\u00adthing, it should be the reverse.\u201d Emer\u00adgency powers, the judges made clear, demand more jus\u00adti\u00adfic\u00ada\u00adtion, not less \u2014 par\u00adtic\u00adu\u00adlarly when they author\u00adize \u201ca vast array of dra\u00adconian powers without any prior author\u00adiz\u00ada\u00adtion.\u201d<\/p>\n\n\n\n
Even more dam\u00adaging was the court\u2019s assess\u00adment of the evid\u00adence. Aside from the situ\u00adation in Coutts, where a weapons cache was dis\u00adcovered but resolved using ordin\u00adary law before the Emer\u00adgen\u00adcies Act was invoked, there was no cred\u00adible proof of ser\u00adi\u00adous viol\u00adence: \u201cWhen prop\u00aderly under\u00adstood as requir\u00ading bod\u00adily harm, the evid\u00adence is quite simply lack\u00ading.\u201d<\/p>\n\n\n\n
\n
CSIS ITSELF HAD ASSESSED THERE WAS NO THREAT TO NATIONAL SECURITY.<\/p>\n<\/blockquote>\n\n\n\n
CSIS itself had assessed that there was no threat to national secur\u00adity, and the gov\u00adern\u00adment invoked emer\u00adgency powers before a reques\u00adted altern\u00adat\u00adive threat assess\u00adment was com\u00adpleted.<\/p>\n\n\n\n
The court\u2019s con\u00adclu\u00adsion was blunt: \u201cAs dis\u00adturb\u00ading and dis\u00adrupt\u00adive as the block\u00adades and protests could be, they fell well short of a threat to national secur\u00adity.\u201d<\/p>\n\n\n\n
The gov\u00adern\u00adment also failed the Emer\u00adgen\u00adcies Act\u2019s \u201clast resort\u201d require\u00adment. Emer\u00adgency powers may be used only when exist\u00ading laws are insuf\u00adfi\u00adcient. Yet the protests were ulti\u00admately cleared using the Crim\u00adinal Code \u2014 the very tools already avail\u00adable at the time. The RCMP com\u00admis\u00adsioner at the time had even advised the gov\u00adern\u00adment that police had not exhausted their exist\u00ading powers.<\/p>\n\n\n\n
What was lack\u00ading in Ott\u00adawa, the court observed, was not legal author\u00adity but poli\u00adcing resources and co-ordin\u00ada\u00adtion. That is not a national emer\u00adgency. It is a fail\u00adure of gov\u00adernance.<\/p>\n\n\n\n
Equally damning was the gov\u00adern\u00adment\u2019s dis\u00adreg\u00adard for pro\u00advin\u00adcial oppos\u00adi\u00adtion. Most provinces warned that invok\u00ading the Emer\u00adgen\u00adcies Act would be unne\u00adces\u00adsary and divis\u00adive. Cab\u00adinet failed to mean\u00ading\u00adfully engage with that oppos\u00adi\u00adtion.<\/p>\n\n\n\n
\u201cIn a fed\u00ader\u00ada\u00adtion,\u201d the court wrote, \u201cprovinces should be left to determ\u00adine for them\u00adselves how best to deal with a crit\u00adical situ\u00adation, espe\u00adcially when it largely calls for the applic\u00ada\u00adtion of the Crim\u00adinal Code by police forces.\u201d The judges emphas\u00adized that if the situ\u00adation does not exceed capa\u00adcity or author\u00adity of the provinces, \u201cthey should be left to their own devices.\u201d<\/p>\n\n\n\n
The reg\u00adu\u00adla\u00adtions enacted after the declar\u00ada\u00adtion fared no bet\u00adter under con\u00adsti\u00adtu\u00adtional scru\u00adtiny.<\/p>\n\n\n\n
The court ruled that the sweep\u00ading ban on assem\u00adblies viol\u00adated free\u00addom of expres\u00adsion by crim\u00adin\u00adal\u00adiz\u00ading mere attend\u00adance at protests, includ\u00ading peace\u00adful expres\u00adsion on Par\u00adlia\u00adment Hill. Indi\u00advidu\u00adals could face up to five years in prison \u201cnot because of any\u00adthing they were doing,\u201d but because someone else nearby might breach the peace. That, the judges held, was grossly over\u00adbroad and uncon\u00adsti\u00adtu\u00adtional.<\/p>\n\n\n\n
Per\u00adhaps most chilling was the rul\u00ading on the fin\u00adan\u00adcial meas\u00adures. Banks were com\u00adpelled to share Cana\u00addians\u2019 private fin\u00adan\u00adcial inform\u00ada\u00adtion with police without a war\u00adrant, without notice, and without recourse. Fin\u00adan\u00adcial insti\u00adtu\u00adtions were effect\u00adively dep\u00adu\u00adtized as agents of the state and told to \u201clever\u00adage the news\u201d and social media to identify sus\u00adpects.<\/p>\n\n\n\n
The court found that this ad hoc sys\u00adtem \u201clacked pro\u00adced\u00adural safe\u00adguards\u201d and allowed pri\u00advacy to be invaded based on \u201cpoten\u00adtially unfoun\u00added, sub\u00adject\u00adive beliefs.\u201d It viol\u00adated the Charter\u2019s pro\u00adtec\u00adtion against unreas\u00adon\u00adable search and could not be jus\u00adti\u00adfied.<\/p>\n\n\n\n
This decision now stands as bind\u00ading pre\u00adced\u00adent. It places real legal con\u00adstraints on future gov\u00adern\u00adments and ensures that the Emer\u00adgen\u00adcies Act can\u00adnot be repur\u00adposed as a polit\u00adical con\u00adveni\u00adence. It restores the act to what Par\u00adlia\u00adment inten\u00added: a nar\u00adrow, excep\u00adtional tool, not a blunt instru\u00adment against dis\u00adsent.<\/p>\n\n\n\n
The gov\u00adern\u00adment spent mil\u00adlions defend\u00ading the indefens\u00adible. It lost com\u00adpletely. And in doing so, it handed Cana\u00addians one of the most import\u00adant civil liber\u00adties rul\u00adings in a gen\u00ader\u00ada\u00adtion.<\/p>\n\n\n\n
That is worth cel\u00adeb\u00adrat\u00ading. (National Post<\/u><\/strong>, January 29, 2026)<\/p>\n\n\n\n
Christine Van Geyn is the lit\u00adig\u00ada\u00adtion dir\u00adector for the Cana\u00addian<\/em><\/p>\n\n\n\n
Con\u00adsti\u00adtu\u00adtion Found\u00ada\u00adtion.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"
Invoc\u00ada\u00adtion of Emer\u00adgen\u00adcies Act was illegal https:\/\/cafe.nfshost.com\/?p=10945 Christine Van Geyn20 Jan 2026 A gen\u00ader\u00ada\u00adtional civil liber\u00adties vic\u00adtory has been upheld. On Jan. 16, the Fed\u00aderal Court of Appeal held that the Trudeau gov\u00adern\u00adment illeg\u00adally invoked the Emer\u00adgen\u00adcies Act in 2022 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[4228,363,4114,6008],"_links":{"self":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/10945"}],"collection":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10945"}],"version-history":[{"count":2,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/10945\/revisions"}],"predecessor-version":[{"id":10947,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/10945\/revisions\/10947"}],"wp:attachment":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10945"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10945"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10945"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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