**Updated with recording and with some edits, Jan 28, 2024.**
Canadian Frontline Nurses v Canada (Attorney General), 2024 FC 42 (January 23, 2024)
Context: This is a set of four applications for judicial review challenging the decision of the Governor in Council [GIC] to proclaim a Public Order Emergency (in addition to other regulatory measures). The Proclamation concerned the “Freedom Convoy” protests in Ottawa, the border blockades, and the arrests at Coutts, Alberta. The facts and lead-up to the GIC declaration are outlined in the Court’s decision, at paras 29-62.
Issues: Substantively, the Court was faced with whether the Proclamation was reasonable—whether it satisfied the requirements of the Emergencies Act and whether the associated temporary regulatory measures adopted pursuant to the Proclamation violated the Charter.
Holding:
Mosley J concludes:
[7] In brief, I find that the reasons provided for the decision to declare a public order emergency do not satisfy the requirements of the Emergencies Act and that certain of the temporary measures adopted to deal with the protests infringed provisions of the Canadian Charter of Rights and Freedoms – Part I of the Constitution Act, 1982 adopted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) [Charter] and were not justified under section 1 of the Charter.
Analysis: This is an important case that is likely to be appealed. I will cover a few issues: (1) the reasonableness of the decision, considering the principles of interpretation, and whether there is an available basis on which to ground the Federal Court’s decision; (2) the vulnerabilities in this decision on appeal. I will not cover the constitutional issues.
As readers will know, the background of this case raises deeply important questions about the way courts review rules promulgated by the executive, a question the Supreme Court will soon consider (see also Issue #68). My forthcoming paper in the Ottawa Law Review addresses many of the questions that this case raises. This decision (putting aside some weaker moments that I will address) can be justified on the current state of the law, and is an at least defensible application of Vavilov’s core teachings. As I say, there are missteps that could justify an appeal. However, this is very much a matter in flux, and so any confident predictions on the results of an appeal are unlikely to be more than speculation, and what follows is my own view of the law.
Reviewing the Proclamation
Before Mosley J were two opposing views of how to conduct reasonableness review of the GIC Proclamation. In the Federal Courts, the question of how to review executive legislation is settled: courts apply Vavilov’s reasonableness standard, rather than the much more deferential approach in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 (see Issue #68).
Nonetheless, Katz reared its head here, and the difference between Vavilov and a Katz-like approach is laid bare in this case. The government argued, on one hand, that “an extraordinarily high degree of deference should be given to Cabinet because of its status ‘at the apex of the Canadian executive developing policy in many disparate areas’… [206]. The context of emergency also denotes, historically, significant deference to the executive in dealing with national security threats and emergency situations. These are considerations that justify the Katz standard, which presumes regulations valid unless they a “completely unrelated” to the enabling statute, a hyperdeferential standard.
On the other hand, the opposing view suggested that the actual scope of the enabling legislation’s text and context was at issue [210]. Put differently, the objective legal thresholds in the Emergencies Act must be satisfied, regardless of how much deference is owed because of the atmosphere of executive decision-making [210]. Deference, then, is a function of statutory language rather than the identity of the decision-maker.
The Court adopts the approach focused on statutory language, which I think better reflects Vavilov. As I argue in my paper on the matter, the approach that the Court adopts here is tightly connected to the actual source of authority for executive action—the enabling legislation. When the GIC issues a Proclamation under the Emergencies Act, it does so not because of reserve power or because of some rarefied constitutional status. Rather, it does so on the strength of statutory authority, like any actor exercising delegated power. The application of Vavilov’s reasonableness standard here goes “straight to” the key of statutory language, “focusing on what meanings the language of the regulation-making power can reasonably bear” (see Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 at para 40). And this is exactly what Vavilov calls for when it created a sweeping template for judicial review of all administrative action, large and small, important and humdrum.
Under reasonableness review, deference manifests through a “reasons-first” approach: beginning with the reasons for the decision and working outwards. When reviewing GIC regulations, we lack contemporaneous reasons like an adjudicative decision. But by viewing the regulatory instrument alongside the record, we can discern an implied interpretation of the provision (see Zeifmans LLP v Canada, 2022 FCA 160 at para 10; Issue #60). This is not a perfect science—there is always judicial judgment involved—but we start with the Proclamation and try to discern how the GIC understood the Emergencies Act.
The Proclamation seems to suggest that the government believed that the situation of violence in Coutts, which was settled by existing authorities, coupled with the blockades and the situation in Ottawa, posed a potential national threat. The Proclamation suggests that the Convoy and related activities constituted a threat to the security of Canada under s.16(c) of the Emergencies Act: (c) activities within or relating to Canada 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 within Canada or a foreign state. The government’s Proclamation listed several justifications: the continued border blockades, a host of economic problems caused by them, and—notably— “the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canada” [65].
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 [202].
Does the implied interpretation respect the limits on authority erected by the Emergencies Act? We interpret statutes by looking at their text, context, and purpose. As the Supreme Court instructs, we interpret the text through which the legislature sought to achieve its objectives (see MediaQMI v Kamel, 2021 SCC 23 at para 39, and we try to understand the structure of the plan the legislature enacted and the reasons motivating it. Two general observations. First, the text of this statute is written in highly structured terms, with specific pre-conditions and sequenced review mechanisms, alongside specifically defined terms. The purpose of the statute—to enact a more constitutionally- sound set of rules for emergencies—reflects these specific textual choices to confine executive decision-making. In this sense, the Emergencies Act is unlike a broad grant of authority to the executive to act, say, “in the public interest.” Taken together, the text and purposes of the Emergencies Act appears to suggest constraint on GIC discretion. It contains a precise “statutory recipe” that strictly confines the executive’s authority (see e.g. Canada (Attorney General) v Almon Equipment Limited, 2010 FCA 193 at paras 38-39, adopted in Vavilov, at para 108).
On the first requirement of threats to the security of Canada, Parliament made the admittedly odd choice to define the term by incorporating by reference the same term in another statute, the CSIS Act. 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 as best we can, we should keep the legal threshold steady--as requiring “substantial” threatened harm, because the CSIS Act definition was incorporated “to raise the level of the test to be met by the GIC before a public order emergency could be declared” [286].
Let me moot two problems that I see with the Proclamation’s implied interpretation, problems identified by the Court. First, economic harms are arguably too disconnected from the ordinary meaning of “threats to the security of Canada,” which eliminates much of the justification for the Proclamation (see West, Norris, Nesbitt). Secondly, the government’s apprehensions of serious violence were arguably suspicions based on the situation at Coutts. However, there was no broader evidence that what happened at Coutts would repeat elsewhere—and there had been no serious violence except at Coutts, which was resolved under existing authorities [294]. The Court is undoubtedly right to say that the Ottawa portion of the protests were “highly objectionable,” and the failures of local police and government meant that the harms were exacerbated. [295] But “a threat of serious violence” is a higher bar to clear, and the GIC’s implied interpretation rested on this evidence existing beyond a mere suspicion.
The next question was whether there existed a “national emergency” which exceeds “the capacity or authority of a province.” Argument on this provision concerned whether existing authorities could suffice to control the situation.
Assuming that the situation, by the time of the Proclamation, was largely confined to Ottawa (and/or that other blockades could be solved with existing authorities, as at Coutts), the implied interpretation seems to rest on the assumption that “incapacity” can include an unwillingness to exercise authority or a disorganized police response. Here, too, the statute is surprisingly prescriptive. The Emergencies Act kicks in where there is a provincial incapacity or lack of authority. A failure to exercise existing authorities is seemingly outside of either these situations, and a judicial attempt to bring it in could undermine the scheme of the Emergencies Act. Why? The situation raises the prospect of s.25(3) of the Emergencies Act, which provides that the GIC may not declare a public order emergency where “the effects of the emergency are confined to one province, unless the lieutenant governor in council of the province has indicated to the Governor in Council that the emergency exceeds the capacity or authority of the province to deal with it.” The Emergencies Act arguably does this to preserve provincial jurisdiction (for the same reason, it recognizes the power of provincial and municipal control over police forces; see s.20 (1)). The absence of an official request from the Ontario governent—whatever the reason for that absence may be—cannot entitle the federal government to nonetheless issue a declaration. In other words, reading “incapacity” broadly would arguably run counter to the meaning of these other provisions. At para 354, the Court discusses this possibility: if the emergency was limited to Ontario, the Proclamation could have been limited as well, but this would require the consent of the Ontario Cabinet.
The line between incapacity and lack of competence/failure to exercise authority is thin. But I think the statute, as drafted, presumes a line of some kind that reveals itself through interpretation. Other situations across the country connected to the Convoy protests were resolved with existing authorities, and the failures remained in Ottawa and Ontario. The Emergencies Act is a finely calibrated set of statutory provisions designed to cabin executive authority. Expanding the conditions under which the Emergencies Act can be invoked is a judgment that should be left to the legislature, especially given the wide-ranging implications of unravelling what appears to be an intentional package of accountability measures in the statute. Legislators would do well to consult the Manitoba Law Journal’s series of excellent papers from respected authors exploring the dimensions of the problem and potential legislative reforms. And the provinces, too—especially Ontario—could do well to review their legislative authorities.
Disguised Correctness Review
Much was made after this decision of Mosley J’s comments at the conclusion of the decision:
[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.
I suspect that, on appeal, government counsel may use this passage to argue that the court was engaged in disguised correctness review—that it inappropriately failed to defer to the government’s appreciation of the situation based on the evidence that was present at the time. What’s more, this sort of comment might give life to the worry about applying Vavilov to regulatory contexts like this: that the record in this case—11 000 PDF pages, reviewed with the benefit of judicial hindsight—invites a second-guessing of policy choices on their merits (see the discussion in Auer v Auer, 2022 ABCA 375 at para 69). This—and some other paras in the decision—does give the government some grist for the mill.
Is it fatal? I am candidly not sure. Here are a few things to consider. First, as a general matter, I do not think deference disappeared here entirely. Of course, reasonableness review does not entitle a court to question the wisdom or efficacy of a course of action. One plausible way to understand reasonableness review is that it requires the court to step into the shoes of the decision-maker, trying to get into his or her head, with the judge asking how he would decide the case. Another way to understand reasonableness review is that it prescribes the amount of deference that the statute indicates—ie—that the factual and legal constraints of the situation prescribe. On the latter view—the view implicit in Vavilov and endorsed in the Federal Courts— “deference” is not assumed in the abstract. Parliament made different institutional design choices in the Emergencies Act, creating structured and sequenced accountability mechanisms, with specific language, that the executive must meet.
More particularly, the record that was composed for this case did not ask the court to weigh various policy alternatives and decide on the best one in this area of historically unfettered executive decision-making. Reasonableness review did not invite the court to select the “best” option the GIC should have selected. Rather, we can think of the Court as erecting the fences that limit the space in which governments can respond to situations of claimed emergency. This role is different from choosing appropriate responses within the fence space. The Court refused, for example, to identify the military as a valid alternative in Ottawa—the Court, looking at the record, saw that the government rejected this option as implausible [232].
The point is that the record feeds into the court’s ultimate legal analysis. It provides evidence to assist the Court in interpreting the qualitative content of terms like “reasonable grounds,” and “threats to the security of Canada.” These are, as the Court says, legal questions that are amenable to judicial review. Evidence is important. But the point is to enforce the boundaries of the statute. In absence of direct evidence that the situation was nationwide and threatening serious violence—evidence that was largely lacking, and even contradicted within the record [268]—the very high thresholds in the Emergencies Act seem intentionally difficult to meet.
As I’ve said, there are vulnerabilities in the case. The “reasons first” character of the review is not always clear in the Court’s reasons. Indeed, the decision is sometimes written in a way that could support the view that the Court engaged in disguised correctness review. But, at the core, I think the Court’s decision reflects a defensible view of Vavilovian reasonableness review, at least when it focuses on statutory language rather than any alternative basis for deference.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.