Emergency! The Federal Court of Appeal and the Emergencies Act Decision
As promised, when courts release cases of high interest to subscribers, I will release a special newsletter on those cases. The monthly edition of the newsletter will be released, as normal, on the last Sunday of January.
Canada (Attorney General) v. Canadian Civil Liberties Association, 2026 FCA 6
The Federal Court of Appeal has released its decision in the Emergencies Act case. By now, the “Freedom Convoy” saga in Ottawa, a child of the pandemic, seems like eons ago. The high-profile and sensationalist facts of that saga do not bear extensive repetition. In response, the federal Cabinet invoked the Emergencies Act which authorized “special temporary measures,” including a proclamation of a Public Order Emergency, a set of regulations prohibiting participation in certain public assemblies; and an economic order requiring banks and other financial institutions to freeze the assets and accounts of “designated persons.”
On judicial review of the measures, the Federal Court (per Mosley J) concluded that the Cabinet’s decision did not satisfy the requirements of the Emergencies Act, and additionally violated various provisions of the Charter.
On appeal, the Federal Court of Appeal (per curiam) upheld the Federal Court. What is remarkable about this case is—actually—how unremarkable it is. Generally speaking, the Court’s reasons reflect an orthodox application of administrative law principles, specifically those related to reasonableness review of subordinate instruments. The Court should be commended for its clean application of these principles in this highly contentious context. Such a decision bolsters public confidence in the courts.
That said, there are several key points in the decision that bear attention: (1) the selection of the standard of review; (2) the application of the reasonableness standard; and (3) a general point about the importance of judicial review in this context. I do not aim to cover the waterfront on all of the issues in the case.
Correctness Review
In the Federal Court, Mosley J held that the reasonableness standard applies. This is uncontroversial. However, before the Federal Court of Appeal, Saskatchewan (as an intervenor) argued that the standard of review of correctness should apply. The argument was that “the more exacting standard would be required because the failure by the GIC to meet the preconditions found in the Act would mean the GIC not only acted ultra vires the Act but also beyond the constitutional authority of Parliament to invoke the emergencies power” [156]. In other words, the question of compliance with the Emergencies Act is not an ordinary question of law; it is one that implicates the federal Parliament’s authority under the peace, order, and good government clause.
The Court—properly in my view—rejects the invitation to apply the correctness standard, if only because Saskatchewan was not a party to the case [157]. But as a matter of principle, the Court is right that matters of constitutional law are distinct from the simple “legality of an executive or administrative decision…” [157]. As we shall see, the Court rejects the absolutist proposition that “…constitutional law principles can have no bearing on the assessment of the reasonableness of the decision made by the GIC to invoke the Act” [157]. But this, the Court says, does not translate “into a full-fledged constitutional attack on the legislation under which that decision was made” [157]. As we shall see, though, constitutional considerations do bleed into the Court’s reasonableness analysis.
The Reasonableness Standard
In applying the reasonableness standard, I want to focus on three intriguing aspects of the Court’s decision. Some of these aspects amount to rejections of government arguments that—rightly, in my view—would emaciate judicial review in Cabinet decision-making, contrary to the principles announced in Vavilov and Auer.
What does the Emergencies Act require, and did the GIC meet these requirements? Section 16 of the statute defines two requirements: (1) there must be an emergency that “arises from threats to the security of Canada” and (2) the threat must be serious as to be a “national emergency.” It requires that the GIC have “reasonable grounds” that a public order emergency exists (s.17(1)). We can see the “reasonable grounds” standard as similar to other such standards with specified definitions in law: see Canada (Minister of Transport, Infrastructure and Communities) v Farwaha, 2014 FCA 56 at paras 95-97). Here, the standard requires more than a mere suspicion, and the belief must be reasonably founded.
First, as I noted in Issue #122, para 370 of Mosley J’s decision was contestable. There, he said the following:
[370] At the outset of these proceedings, while I had not reached a decision on any of the four applications, I was leaning to the view that the decision to invoke the EA was reasonable. I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order. I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC.
As I predicted, the government glommed on to this passage on appeal, and argued that the Federal Court “acted as if it was the first instance decision-maker and, in so doing, applied for all intents and purposes a correctness standard of review” [163, 183]. On appeal, the Court admits that “[i]t may indeed appear curious to find such a candid admission at the very end of the Federal Court’s reasons” but goes on to conclude that “[i]t is not for us, however, to speculate as to what exactly the Federal Court had in mind and why it felt compelled to express sympathy for those who had to decide whether or not to issue the Proclamation” [183].
At the end of the day, the Court of Appeal appears to conclude that this passage is simply immaterial. That is because the focus, on appeal, is not necessarily what the Federal Court did. The question on appeal is whether the Federal Court properly selected the standard of review, and applied it properly. Determining the answers to those questions requires the appeal court to, essentially, re-conduct the judicial review, with a view to whether the Cabinet had met the sequenced preconditions of the Emergencies Act.
Secondly, the Court of Appeal properly rejected the government’s most extreme argument: that the decision is a discretionary one that demands a “highly deferential attitude towards the GIC, with respect both to its interpretation of the Act and to its assessment of the existence of a public order emergency” [165]. This argument was a stretch, in my view, because of the specific and objective legal thresholds embedded in the Emergencies Act (see my paper making this argument). As the Court notes, the “objective legal requirements” of the statute exist no matter who is interpreting the law. The Court properly recalls Vavilov’s advice: the breadth or narrowness of delegating power will constrain the degree of deference owed to the decision-maker.
When it comes to the first question—threats to the security of Canada— here, the wording of the statute was “quite circumscribed and cannot be interpreted as conferring unconstrained discretion” [171]. Parliament made the admittedly odd choice to define the term by incorporating by reference the same term in another statute, the CSIS Act, including its requirement that “threats to the security of Canada” requires “serious violence,” tantamount to bodily harm. By Parliament’s own explicit direction, these statutes must be interpreted in pari materia, which means that “threats to the security of Canada” in the Emergencies Act means the same as it does in the CSIS Act. The decision-making contexts are, of course, different—and the information decision-makers under these statutes will consider in these contexts will be different. But the Court ultimately believes that this choice was made deliberately [197]. And, because of the presumption of consistent expression, the term “threats to the security of Canada” should be interpreted steadily throughout the statute book, because “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” [204].
The Court’s conclusion in this regard is an exemplar of the modern approach to statutory interpretation, particularly the relationship between text and purpose. As readers know, this is a theme that the Supreme Court has sounded in its statutory interpretation jurisprudence. Consider the Court of Appeal’s analysis. First, it concludes that the definition incorporated in the Emergencies Act of “threats to the security of Canada” is a precise definition, carefully-chosen, that is “well-trodden and had received exhaustive scrutiny by Parliament in the recent past…” [192]. As the Court of Appeal says, simply but powerfully, “…words still matter” [190]. Here, the words do not admit of different meanings, nor is there some hidden meaning of the phrase “threats to the security of Canada” that would permit the Cabinet to deviate from the words in the name of deference.
The Court of Appeal then convincingly links the narrow and precise text to the reason for its adoption. The Emergencies Act was introduced to “avoid the excesses and abuses that occurred under the [War Measures Act, the predecessor legislation] and to prevent them from occurring again…” [226]. In other words, the purpose of the legislation was to enact a constitutionally-compliant set of standards for declarations of emergencies. That only supports an interpretation of the text offered by the Court of Appeal, and in fact, presents a convincing account of the modern approach to statutory interpretation.
Third, the Court had to determine whether there was a “national emergency” supporting the invocation of the statute. The concept of “national emergency” turns on whether the situation can be addressed by provinces or territories and additional legal resources. In assessing this question, we can return to the Court’s analysis of Saskatchewan’s standard of review argument. While no party challenged the Emergencies Act for its constitutionality, the Court notes that the interpretation of the “national emergency” concept “must still be informed by and consistent with the distribution of legislative powers as found in the Constitution Act, 1867” [247]. The Court goes on to explain that the Emergencies Act tracks the interpretation given to the peace, order, and good government clause, particularly the emergency branch and the meaning given to it by Ritchie and Beetz JJ in the Anti-Inflation Reference. The emergency power should be used sparingly, as a last resort option. That is reflected in the text of the statute, discussed above. But the narrow interpretation of the POGG power also provides a constitutional reason to ensure that the Emergencies Act is not easily invoked, except where there is true provincial incapacity or lack of authority [250].
As a result, the Court concluded that there was no reasonable basis on which Cabinet could come to the conclusion that existing provincial capacity and authority could not effectively address the situation.
It should be uncontested that reasonableness review takes its colour from the context. The relative precision of statutory language is an example: broad language will lead to a more flexible approach, narrow language the opposite. An interpretation that transcends constitutional boundaries also offers an additional reason to disfavour that interpretation: that is simply a function, as the Court notes, of the presumption of constitutionality [248]. In other words, where one interpretation would violate the distribution of powers and another would not, there is a good reason to favour the constitutionally-conforming interpretation.
As far as it goes, this is a valid interpretive tool, and it was deployed correctly here by the Court of Appeal. But I caution against taking this point—that reasonableness review can be endlessly “enriched” by the context—too far. As we have seen in recent Supreme Court jurisprudence, that Court has sometimes strengthened reasonableness review (under the guise of “robust reasonableness review”) where the context seems appropriate to do so. In the Cabinet Mandate Letters Case, 2024 SCC 4 (Issue #123) for example, the majority held that the Information and Privacy Commissioner erred by failing to consider a particular definition of Cabinet privilege. In the Charter values context, CSFTNO, 2023 SCC 31 (Issue #117), a unanimous court steeled reasonableness review by noting that where a Charter value is raised, a court can reweigh Charter values on judicial review. The gist appears to be this: where there is some important interest at stake, the Supreme Court appears to be boosting reasonableness review, bending the normal rules associated with the standard of review. This is why, in cases like Cabinet Mandate Letters, there are dissents/concurrences worrying about this approach to reasonableness review (see also the disagreements in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 (Issue #185).
I do not take the Federal Court of Appeal’s approach in this case to be the same as the Supreme Court’s. An interpretive presumption that arises in distinct circumstances—particularly in regard to clear constitutional concerns—is a different technique than the Supreme Court’s ever-evolving approach to reasonableness review. But, by the same token, the Federal Court of Appeal’s approach should not be taken so far.
The Importance of Judicial Review
I would like to end on a general point. We live in a world where institutions—including courts—no longer command the automatic respect that they once did. Judges in robes, sitting in august courtrooms, no longer can expect that the public will respect their roles simply because of the aesthetics. The legitimacy of courts depends instead on a proper appreciation of their roles vis-a-vis the elected branches of government. If courts are viewed as politicians by a different name, they will command the respect that politicians command. However, if courts render their decisions according to precedent, orthodox legal method, humility, and a dose of courage, the judicial role can and will survive this populist moment.
Cases like this one, in which the Court renders a relatively boring opinion on the law, is a good thing. For one, the Court’s decision holds the government to account in a setting where one might expect a court to stay its hand. But judicial review exists for this very reason: to hold governments to the letter of the law, even when it might be politically insensitive to do so. When courts enforce Parliament’s law against the executive, they are not activists, nor are they exceeding their institutional capacity—they are simply saying that no one is above the law, not even the Prime Minister. This is a reminder that is more important than ever these days, especially when it comes to politically unpopular causes. Courts are not “knights errant,” as Cardozo said—a reminder sometimes forgotten in Charter law. But in this case, the Federal Court of Appeal’s reasoning is delightfully straightforward, and will bolster public confidence in the courts.
More importantly, the straightforwardness of the decision is a virtue in itself. We live in a world where innovation is often considered an automatic good. But courts are not innovators—at least, not in the administrative law context. Their role is time-honoured, constitutionally-central, but ancient—to provide redress against the abuse of state power. Whatever labels we assign to that function (jurisdiction, pragmatic and functional, yada yada yada), it has remained with us for time immemorial. There is nothing innovative about it. But that’s its very virtue. The Court’s deployment of orthodox rules of statutory interpretation and its rejection of heretofore unknown concepts of deference should be applauded as simple but timeless applications of ordinary judicial review. Again, this is not exciting stuff, but it is so centrally important, as we watch these ideas of fundamental accountability be tested the world over.