The federal government loses its Emergencies Act appeal—and Canada avoids a constitutional disaster

Evidence of what Cabinet actually knew, what advice it received, what alternatives it considered, what warnings it ignored—all of this would essentially be relegated to a black box. The RCMP Commissioner’s assessment that existing tools hadn’t been exhausted in dealing with the crisis? Inadmissible. CSIS’s conclusion that no threat to national security existed? Irrelevant, despite the CSIS Act’s definition of “threats to the security of Canada” being explicitly incorporated into the text of the Emergencies Act. The Clerk of the Privy Council’s memo promising a “detailed threat assessment” that was never produced? Dismissed as mere “bootstrapping.” Courts would be left reviewing the government’s exercise of emergency powers with blinders on, forced to defer to the executive’s say-so precisely when judicial scrutiny matters most. In making this argument, the Attorney General of Canada attempted to resurrect the very framework Parliament explicitly rejected when it replaced the War Measures Act—a framework where the government’s declaration of emergency was “conclusive evidence” immune from meaningful judicial challenge. The Court of Appeal recognized this for what it was: an argument “antithetical to the principles of democracy and to the firmly established constitutional convention of responsible government.” The Emergencies Act was debated and adopted specifically to avoid the excesses and abuses that occurred under the WMA, and to prevent them from happening again. In a constitutional democracy, emergency powers must be subject to rigorous review. The government’s position would have made such review a charade. The government’s second major gambit was equally audacious: demanding near-total judicial deference to Cabinet’s invocation of emergency powers under the Supreme Court’s Vavilov framework for reviewing administrative decisions. Government lawyers insisted that because Cabinet sits “at the apex of the Canadian executive” and must make precautionary judgments in fast-moving crises, courts should afford maximal deference not just to the decision to invoke the act, but to Cabinet’s interpretation of whether the statutory prerequisites for invocation had been met. This conflation was crucial to the government’s strategy. If courts had to defer to Cabinet’s view of what constitutes a “threat to national security” or a “national emergency,” the statutory safeguards Parliament carefully set forth in the Emergencies Act would become mere suggestions. The Court of Appeal dismantled this argument lucidly. Yes, the court agreed, the ultimate decision to invoke emergency powers involves “a broad range of policy and public interest factors” deserving of deference. But “that discretion can only be exercised once the various legal thresholds found in subsection 17(1) of the Act have been met.” Parliament deliberately enumerated rigorous and specific prerequisites—incorporating the CSIS Act’s definition of security threats, requiring that the situation exceed provincial capacity, and demanding that no other law of Canada can effectively address it. These are not policy questions on which Cabinet’s subjective and politically motivated judgment reigns supreme. They are objective legal standards that courts must enforce, for otherwise “the exacting requirements set out by Parliament” become nullified by the very body they were designed to constrain. The government wanted the power to be both prosecutor and judge of its own compliance with the law. The court said no. In addition to finding that the invocation itself was unlawful, the Court systematically dismantled every other pillar of the government’s legal theory. It rejected the attempt to stretch “serious violence against persons and property” to encompass economic disruption. It struck down regulations that permitted warrantless searches of financial information based on mere “reason to believe” and that criminalized peaceful protesters simply for standing on Parliament Hill —or anywhere else in Canada–with placards, if police believed those protests might lead to a breach of the peace. These were upheld as fundamental violations of Canadians’ rights against unreasonable search and seizure and freedom of expression, which the government could not justify even under the generous scope of section 1 of the Charter. After four years of defending the indefensible, the Liberal government has been handed a comprehensive repudiation of its emergency powers doctrine by two levels of court. The question now is whether Prime Minister Carney’s government will attempt to relitigate these questions at the Supreme Court, or if they have received a clear enough answer from the courts.