Government loses appeal on use of Emergencies Act during Freedom Convoy
- Tony Lam
- 5 days ago
- 4 min read
Re-printed without permission.
The case is ‘one of the most significant for Canadian civil liberties in modern history,’ the Canadian Constitution Foundation said
Author of the article:
Published Jan 16, 2026
Last updated 4 hours ago
4 minute read
OTTAWA — The federal government has lost its appeal on a ruling by the Federal Court that found the invocation of the Emergencies Act during the 2022 Freedom Convoy Protests was unreasonable.
In the 178-page decision released by the Federal Court of Appeal on Friday, Chief Justice de Montigny said he was dismissing all the appeals against the lower court’s decision.
“We are therefore of the view (like the Federal Court) that, on the basis of the record, Cabinet could not reasonably come to the conclusion that existing provincial capacity and authority could not effectively address the situation,” wrote de Montigny.
“We are of the view that Cabinet did not have reasonable grounds to believe that a national emergency existed, taking into account the wording of the Act, its constitutional underpinning and the record that was before it at the time the decision was made,” he continued.
The appeal decision follows a ruling by the Federal Court in 2024 that the invocation of the act in response to the protests was unreasonable, unjustified, and violated Charter rights. Following the decision, then deputy prime minister Chrystia Freeland vowed her government would appeal the ruling.
Former prime minister Justin Trudeau invoked the Act on Feb. 14, 2022, to end the protests against vaccine mandates on cross-border truckers that had gridlocked Ottawa’s downtown streets for almost a month. The act gave Ottawa the power to compel tow truck companies to co-operate with local police to clear blockades, mark parts of the downtown core as no-go zones and freeze the bank accounts of some protestors.
The Federal Court’s ruling stemmed from legal challenges brought on by Canadian civil liberties organizations, including the Canadian Constitution Foundation (CCF) and the Canadian Civil Liberties Association (CCLA), who argued the federal government went beyond its powers.
Christine Van Geyn, litigation director at the CCF, said they were thrilled with Friday’s decision, which represents a complete “repudiation” on the Trudeau government’s position on the invocation of the act.
“This is an affirmation from the court that these are fundamental freedoms that Canadians have that were violated by the freezing of bank accounts, by the invocation of this act, by the by the banning of assemblies,” she said. “We’re thrilled with the decision, and we think the court got this right.”
The CCLA said they were pleased with the court’s decision and the reasons given by the Federal Court of Appeal.
“You’ll recall that in order to invoke the the Emergencies Act, the Cabinet must be satisfied of two things; that there are threats to the security of Canada, and that the existing laws of Canada are insufficient to deal with those threats so that the emergency is a national emergency,” said Ewa Krajewska, co-chair of the Civil Litigation Practice Group and partner at Henein Hutchison Robitaille LLP.
“Neither of these legal thresholds were met in this case,” she added.
Both organizations said they will be prepared to go to the Supreme Court of Canada, should the federal government decide to take the case to the highest court.
In a statement, a spokesperson for the public safety minister’s office said the federal government is reviewing the ruling and assessing next steps.
“The government remains steadfast in its commitment to ensuring the safety and security of Canadians in the face of threats to public safety and national security,” said Simon Lafortune, deputy director of communications and press secretary for Public Safety Minister Gary Anandasangaree.
While both federal courts have opposed the use of the act, the Public Order Emergency Commission, a public inquiry into the government’s use of emergency powers, ruled the act’s use was reasonable in 2023.
However, Commissioner Paul Rouleau at the time said the facts supporting his determination were not overwhelming and that other reasonable and informed people could come to a different conclusion.
Paul Daly, chair of administrative law and governance at the University of Ottawa Faculty of Law, said Friday’s decision is a resounding restatement that even Cabinet must comply with the requirements of the rule of law and cannot arbitrarily exercise public power without the required statutory authority.
“There’s a long history of courts in Canada and elsewhere in the common law world, being very deferential to politicians when they make decisions about emergency powers, and that can be very dangerous, and it’s heartening to see the courts taking a rigorous approach and not just accepting what the executive says at face value,” he said.
Daly added that this is not just an important case for Canada, but for the entire world, wherever executive authority is exercised.
“It requires governments, no matter how high in the apex of the country’s government you sit, that you have to be able to justify your exercised authority in reasons that are convincing to the courts and ultimately to ordinary citizens,” he said.
National Post
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