Civil Liberties Association Calls Ruling on Emergencies Act a ‘Massive Victory’

Police move in to clear Freedom Convoy protesters from downtown Ottawa near Parliament Hill after the Emergencies Act was invoked, on Feb. 19, 2022. The Canadian Press/Cole Burston

The Canadian Civil Liberties Association (CCLA) is calling the Federal Court ruling on the Emergencies Act a “massive victory.”

“Yesterday, the Federal Court of Canada handed down a massive victory for rights and freedoms in Canada,” said CCLA executive director Noa Mendelsohn Aviv, speaking at a news conference Jan. 24 in Toronto.

She told reporters that in the view of the CCLA, the protest in Ottawa had gone on for too long and needed to be addressed. But she said the question for the CCLA was about the federal government using emergency powers to do it.

“CCLA’s concerns ... that led to yesterday’s decision were about the government giving itself massive and extraordinary emergency powers—powers that may be necessary in a serious and extreme situation of a true national emergency as defined by that law, but were unreasonable in the circumstances,” she said.

“This decision is really important,” added Ewa Krajewska, a partner at the law firm Henein Hutchison Robitaille LLP. “It sets out the guidance for future governments on when they can invoke these extraordinary powers. It provides legal clarity, it provides transparency,” added Ms. Krajewska, who acted as counsel for the CCLA. “The CCLA has never been more needed than today, to protect our democracy and the rule of law.”

The CCLA is not alone in its concerns about federal overreach.

Alberta’s premier says the Federal Court ruling on the Emergencies Act is another example of “unconstitutional practices” by the federal government.

Premier Danielle Smith and Alberta’s Minister of Justice Mickey Amery issued a statement within hours of the Jan. 23 ruling.

“This is another example of the Federal Court ruling against the federal government’s unconstitutional practices,” said the joint statement. “Whether it’s this court decision or their defeat on plastics or the Impact Assessment Act, it is clear the federal government simply does not understand or respect the Constitution of Canada.”

“We are disappointed that the federal government has indicated it will be appealing the [Emergencies Act] decision,” their statement continued. “The unnecessary use of the Emergencies Act set a dark and dangerous precedent, and if the federal government will not acknowledge that fact, Alberta will continue to champion the charter rights of Albertans and all Canadians.”

“We continue to review the Federal Court’s reasons and will be prepared to intervene in the federal appeal should the government move ahead,” the statement added.

Deputy Prime Minister Chrystia Freeland told reporters Jan. 23 that they still believe invoking the Emergencies Act was the right decision, which is why the federal government has decided to appeal.

“We were convinced at the time, I was convinced at the time, it was the right thing to do. It was the necessary thing to do. I remain and we remain convinced of that,” she said.

However, it’s the third legal setback for the federal government since October.

Last October, the Supreme Court of Canada struck down the controversial Impact Assessment Act, ruling significant parts of the Act were unconstitutional because they infringed on provincial jurisdiction. At the time, Ms. Smith hailed the Supreme Court decision as a major win. She added that the Act—sometimes called the “no more pipelines act”—had cost Canada tens of billions of dollars in lost investment and thousands of jobs.

However, the federal government quickly announced it would re-work affected sections of the Act and plans to bring back a modified version of it.

Then in November, the Federal Court ruled that Ottawa’s ban on single-use plastics was “unreasonable and unconstitutional.” The challenge to the federal ban was brought by the Responsible Plastic Use Coalition, along with several chemical companies.

However, Ottawa announced it would appeal the Federal Court ruling. The province of Alberta, home to a petrochemical industry worth billions, announced it would participate in the appeal.

“It is past time for Ottawa to listen,” said Ms. Smith in a statement Dec. 19. “We have told them they are overreaching their jurisdiction, the private sector has told them so, and so have both the Supreme Court and the Federal Court ... we will continue to push back against Ottawa’s unconstitutional actions, including through this legal action, until they listen.”