Canadian Courts Are Holding the Line on National Emergency Powers

In a recent Lawfare piece, Jeffery Tobin argued that the Americas are fast becoming a “Hemisphere of Exceptions.” From Ecuador, to Honduras, to the United States, executives across the region are increasingly deploying emergency measures—once conceived as temporary constitutional relief valves—as central instruments of governance to bypass legislative paralysis and manage chronic instability. As Tobin observes, this drift signals a dangerous transformation in which “legality [yields] to expediency” and crisis becomes a standing justification for rule by fiat.

However, one nation has emerged as a notable exception to this trend. In January, Canada’s Federal Court of Appeal (FCA) delivered a landmark unanimous decision in Canada (Attorney General) v. Canadian Civil Liberties Association. The decision affirmed that the federal government’s 2022 invocation of the Emergencies Act in response to the anti-lockdown “Freedom Convoy” was both unreasonable and ultra vires. In doing so, it upheld an earlier Federal Court ruling in Canadian Frontline Nurses v. Canada, which had found that the Cabinet lacked objectively reasonable grounds to believe a national emergency existed. 

While counsel for the government still needs to review the decision and weigh a final appeal to the Supreme Court of Canada, the FCA’s ruling currently stands as the definitive interpretation of the act’s various thresholds. Consequently, Canada is emerging as a notable exception to the regional drift toward emergency powers, owing to decisive judicial interventions that have reasserted statutory limits on executive power.

The Exception in a “Hemisphere of Exceptions” 

Canada’s recent judicial outcomes were not just reactive to a moment of exigency; rather, they represent the decades-long progressive development of a “culture of justification” in Canadian administrative decision-making. This principle demands that public power be exercised through reasoned, context-specific explanation that is responsive to evidence. Correctly situating these rulings therefore requires an understanding of Canada’s unique constitutional and historical evolution.

In 1985, Canada enacted the Emergencies Act. The act marked a fundamental shift in Canada’s constitutional concept, replacing the blunt instrument of the War Measures Act with a more “measured and balanced” framework. The War Measures Act—invoked thrice in total, once during each of the world wars and again during the October Crisis of 1970—had offered extensive powers to the executive upon a simple proclamation of war, invasion, or insurrection, accompanied by few protections for civil liberties. In the 20th century, it was used to censor communications, detain and deport individuals without trial, control trade and industry, seize property, and intern “enemy aliens” deemed threats to the state.

The Emergencies Act followed the Patriation of the Constitution from the United Kingdom and the concurrent enactment of the Canadian Charter of Rights and Freedoms, which centered human rights in the law. In promulgating the Emergencies Act, Parliament made a deliberate choice to integrate executive emergency powers into this new rights-based framework. The act rejected Nazi jurist Carl Schmitt’s theory of emergencies as exceptional moments that demand concrete action and refute the a priori rule-making that forms the bedrock of legal liberalism. It imposed detailed definitions, tightly constrained the scope of executive power, and instituted robust mechanisms of accountability.

The rigor of this framework was tested for the first time in early 2022, when demonstrators blockaded downtown Ottawa and key border crossings to protest COVID-19 restrictions. Upon declaring a Public Order Emergency, the government introduced temporary measures that prohibited public assemblies, restricted travel, froze assets, and compelled private entities to provide essential services. Though the independent Public Order Emergency Commission (POEC) later concluded that the “very high” threshold for invocation had been met due to a breakdown in policing and federalism, the federal courts have now decisively rejected that determination as a matter of law and fact. In doing so, they affirm that utility and expedience cannot justify abrogating the constitutional division of powers, and that the “chain of conditionals” actualizing an emergency must be established in strict adherence to the underlying statute.

Establishing the Threshold Question

In Canada, the executive’s determination of an emergency, including the underlying facts used to reach this conclusion, is considered a judicially reviewable administrative decision. This stands in sharp contrast to the United States’ political question doctrine, which frequently shields presidential national security determinations from judicial oversight.

Indeed, as the importance of responsible government has grown, Canadian courts have accordingly narrowed the sphere of unreviewable executive discretion. Even the highest acts of state—whether derived from residual powers vested in the Crown or through statutory delegations by Parliament—are increasingly subject to comprehensive judicial scrutiny.

The Supreme Court of Canada’s seminal decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (2019) fundamentally reorganized the landscape of Canadian administrative law, establishing “reasonableness” as the presumptive standard of review for administrative decisions. In the context of the Emergencies Act, this review has proved exacting. In their rulings, the Federal Court and FCA treated the act’s definitions as binding legal constraints rather than flexible guidelines for executive interpretation. The act requires that the Governor-in-Council (the Canadian Cabinet) believe “on reasonable grounds” that a Public Order Emergency exists. Subjective belief is insufficient: The Cabinet must have “an objective basis for the belief which is based on compelling and credible information.” Consequently, the government must demonstrate a rational connection between the means utilized (the declaration of an emergency and access to attendant powers) and the stated ends (the restoration of public order). It is not enough for the executive to merely claim necessity; it must justify it within the “chain of conditionals” that link a crisis to the statutory requirements of the act.

The Emergencies Act structures the invocation of emergency powers around a rigorous “triple incapacity threshold,” as identified by Karin Loevy. For the federal government to lawfully declare a national emergency, it must demonstrate a “state of deep collapse of aptitude” across three dimensions: a “collapse of provincial authority,” a “collapse of the ability to preserve sovereignty in the Government of Canada,” and a “collapse of law.” This threshold is operationalized through Section 3 of the act, which stipulates that a national emergency is an urgent and critical situation of a temporary nature that seriously endangers the lives, health, or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it; or seriously threatens the ability of the Government of Canada to preserve the sovereignty, security, and territorial integrity of Canada; and that cannot be effectively dealt with under any other law of Canada.

In Canada v. Canadian Civil Liberties Association, the FCA dismantled the government’s justification on two key fronts. First, the Court held that the crisis in question did not constitute a “Public Order Emergency” as constructed by the statute. The act requires that such an emergency arise from “threats to the security of Canada,” a phrase that originates in Section 2 of the Canadian Security Intelligence Service Act (CSIS Act) of 1984. This definition delineates four categories of threats: espionage or sabotage; foreign influenced activities; activities directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective; and activities directed toward or ultimately intended to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. This is meant to exclude lawful advocacy, protest, or dissent, unless carried on in conjunction with one of the aforementioned activities.

Chief Justice Yves de Montigny, writing for the Federal Court of Appeal, emphasized that the statutory meaning of “threats to the security of Canada” must be read in harmony with the CSIS Act and cannot be interpreted as conferring unconstrained discretion on the executive. The court rejected the government’s contention that rendering critical infrastructure unusable constituted “serious violence” against property, holding instead that the statute requires evidence of actual physical damage or destruction. Similarly, regarding threats to persons, the court clarified that “serious violence” requires cognizable “threats of bodily harm,” precluding speculative economic concerns from satisfying the threshold. The FCA noted that while context and purpose should be evaluated, “[a statute’s] words still matter.” In rejecting the government’s broad interpretation, the court reinforced the oversight role of the judiciary: When emergency powers are set out in legislation, terms that are incorporated by reference should be construed “exclusively in light of [their] non-emergency statutory context” to ensure that executives do not exceed statutory controls on their authority.

Second, the court affirmed that the government failed to meet the federalism prong of the statutory threshold, concluding there was no reasonable basis to believe the situation exceeded provincial authority or could not be handled by existing laws. The FCA found that “what was lacking to re-establish public order was not more legal tools beyond what was already available, but more policing resources,” referring to the situation at border crossings such as the one in Coutts, Alberta, which had been “effectively dealt with” using ordinary laws before the act was even invoked. As provinces were already addressing demonstrations using existing tools such as the Criminal Code and injunctions, the Cabinet could not reasonably claim a national incapacity where only a localized—albeit severe—policing failure existed in Ottawa.

Policing the Scope of Attendant Powers 

Having tackled the initial threshold question, the federal courts then considered the specific powers wielded by the Cabinet to quell the unrest. Even where an emergency is lawfully declared, measures issued pursuant to the Emergencies Act must substantively comply with Canada’s Charter of Rights and Freedoms. The act’s preamble contains an explicit reminder that the executive’s power is subject to this overarching constitutional limitation. The FCA’s analysis of the government’s orders in Canadian Civil Liberties Association demonstrates the continued vitality of this constraint.

In this instance, the FCA held that the Emergency Measures Regulations and the Emergency Economic Measures Order infringed Section 2(b) (freedom of expression) and Section 8 (unreasonable search and seizure) of the Charter. Unlike the U.S. Constitution, the Canadian Charter contains a general limitation clause in Section 1, which permits the government to limit certain rights if such limits are “reasonable” and “demonstrably justified in a free and democratic society.” This justification exercise, known as the Oakes test, generally requires the government to prove the measure is “minimally impairing” of the right in question.

The FCA held that the measures disseminated in February 2022 were not justified under Section 1 because they were not minimally impairing. The Emergency Regulations, which prohibited participation in any public assembly that might reasonably be expected to lead to a breach of the peace, were found to be overly broad. By targeting the protests themselves rather than particular acts of disorderly conduct, the regulations effectively criminalized mere attendance, capturing peaceful participants who did not intend to breach the peace. This constituted a clear infringement of expressive rights that was not sufficiently tailored to the objective of restoring public order.

The more contentious measure was the Economic Order, which prohibited the provision of financial services to anyone participating in a “prohibited assembly” and required financial institutions to freeze the assets of such “designated persons” immediately and without a warrant. The court found this to be a breach of protesters’ Section 8 Charter rights. The order effectively deputized financial institutions to act as state agents without providing them with formal lists or clear guidance, leading banks to “leverage the news” and the internet to determine whose accounts to freeze. This created an environment of ad hoc and arbitrary enforcement where innocent individuals risked wrongful identification. Most egregiously, the order allowed for the warrantless sharing of confidential financial information with federal agencies such as the Royal Canadian Mounted Police and Canadian Security Intelligence Service, bypassing the standard requirement for prior judicial authorization.

The scheme was further pilloried for its lack of adequate redress mechanisms. There was no process for innocent individuals whose accounts were frozen to challenge their designation or regain access to suspended funds. The FCA noted that procedural safeguards available in other contexts—such as requiring a higher standard of suspicion for data sharing, instituting a formal review mechanism, or mandating prior authorization by a neutral arbiter—could have been implemented to make the Economic Order less impairing. In forgoing such safeguards, the federal government opted for a blunt, nationwide economic dragnet that ultimately violated the Charter-protected rights of affected Canadians.

*          *          * 

The Federal Court’s decision in Canadian Frontline Nurses and the FCA’s subsequent appellate ruling in Canadian Civil Liberties Association confirm that in Canada, the existence of an emergency remains a question of law and fact subject to judicial determination. These rulings vindicate the promise of the post-1982 constitutional project, underscoring a legal culture where “necessity [remains] a high bar” and in which “the exercise of all public power must find its ultimate source in a legal rule.” By anchoring emergency powers within this rights-based framework, Canada has charted a course distinct from the more permissive approaches seen elsewhere in the hemisphere, undergirding a system that expects its executive to rigorously defend the necessity of its actions.