Supreme Court of Canada to hear federal appeal over use of Emergencies Act in 2022

While many of the “Freedom Convoy” protesters were demonstrating against COVID-19 health restrictions, the protests attracted some with a variety of grievances against then-prime minister Justin Trudeau and his government.

Trucks also jammed key border crossings to the United States, including routes at Windsor, Ont., and Coutts, Alta.

On Feb. 14, 2022, the government invoked the Emergencies Act, which allowed for temporary measures, including regulation and prohibition of public assemblies, the designation of secure places, direction to banks to freeze assets and a ban on support for protest participants.

It was the first time the law had been used since it replaced the War Measures Act in 1988.

In a Feb. 15 letter to premiers, Trudeau said the federal government believed it had reached a point “where there is a national emergency arising from threats to Canada’s security.”

The Public Order Emergency Commission, which carried out a mandatory review after the act was used, concluded in early 2023 that the federal government had met the very high legal standard for triggering the law.

The Trudeau government’s move was also scrutinized in Federal Court.

The Canadian Civil Liberties Association and others argued in court that Ottawa lacked sound statutory grounds to deploy the emergency measures.

The government said the steps taken to deal with the turmoil were targeted, proportional and time-limited, and complied with the Charter of Rights and Freedoms.

Richard Mosley, the Federal Court judge who heard the case, concluded the decision to invoke the Emergencies Act did not bear the hallmarks of reasonableness — justification, transparency and intelligibility — and was not supported in relation to the relevant factual and legal constraints.

Ultimately, there “was no national emergency justifying the invocation of the Emergencies Act,” Mosley said in his January 2024 ruling.

In January of this year, a three-judge panel of the Federal Court of Appeal unanimously affirmed that ruling.

The Court of Appeal said that as disturbing and disruptive as the blockades and the “Freedom Convoy” protests in Ottawa could be, “they fell well short of a threat to national security.”

The federal government asked the Supreme Court for leave to appeal the decision.

Following its usual practice, the top court gave no reasons Thursday for deciding to hear the case.

The court also agreed to hear cross-appeals on issues raised by the civil liberties association and the Canadian Constitution Foundation.

Howard Sapers, executive director of the Canadian Civil Liberties Association, said Thursday that while the extraordinary powers granted to the government through the Emergencies Act are necessary in extreme circumstances, they also threaten the rule of law and the democratic process.

“Courts are responsible for ensuring that the government does not invoke these powers arbitrarily, and CCLA’s mandate is to raise these important issues for judicial scrutiny,” he said in a media release.

In its written submission requesting a Supreme Court hearing, the government said the Federal Court and the Court of Appeal “applied the wrong principles on judicial review.”

The courts should have asked whether — based on the information available at the time — federal officials acted reasonably in concluding a public order emergency existed, the submission said.

“Instead, they asked, with the benefit of hindsight, whether there were reasonable grounds to believe that a public order emergency existed.”

In the end, both courts applied their own view of what was reasonable, the government said.

“This non-deferential approach hamstrings governments’ ability to respond effectively to future crises, neuters the Act” and conflicts with the Supreme Court’s administrative law rulings over the years, the government’s submission said.

“It amounts to second-guessing with the benefit of 20/20 hindsight,” the government added.

“In the end, no one disputes that emergency measures should be a temporary means of last resort. But that does not mean those measures should be available only in the most dire and extreme circumstances.”

In its submission to the Supreme Court, the civil liberties association said the government should be denied leave to appeal because it was attempting to relitigate “the same issues and arguments the Court of Appeal dismissed.”

This report by The Canadian Press was first published Oct. 22, 2026.

Jim Bronskill, The Canadian Press

by The Canadian Press

Supreme Court of Canada to hear federal appeal over use of Emergencies Act in 2022

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