CANADA Trends and Developments Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
The Federal Court found the invocation of the Act was unlawful because Cabinet’s conclusion that there were “threats to the security of Cana- da” was unreasonable. Many of the justifications given by the government for invoking the Act were based on economic effects. But the Court held that “threats to the security of Canada” did not include economic disruption. The only rel - evant threat to the security of Canada was “the threat or use of acts of serious violence against persons or property” . But the Court concluded that the evidence contained only “vague and unspecified” reports and “speculation” regard - ing “the threat or use of acts of serious violence against persons and property” . The Court also held that Cabinet’s conclusion that there was “national emergency” was unrea- sonable. The Emergency Act’s definition of a national emergency required that the situation could not be effectively dealt with under other laws of Canada and that it exceeded the capac - ity or authority of a province to deal with it. The Court determined that there was no national emergency because the protests were being dealt with by local and provincial police, through arrests and superior court injunctions, employ - ing existing authorities under the federal criminal law and provincial highway offences statutes, except in Ottawa.
As for Ottawa, Cabinet had not addressed the fact that there appeared to be no obstacle to assembling the large number of police officers from a variety of other forces ultimately required to assist the Ottawa Police Service to remove the blockade participants, and the impasse was a product of the overwhelming volume of pro - testers and a failure of leadership. The Court also held that the regulations violated the right to freedom of expression under Section 2(b) and the right against unreasonable search and seizure under Section 8 of the Canadian Charter of Rights and Freedoms. The restrictions on assembly violated Section 2(b) because they were overbroad and captured not only the per - son who had parked their truck and blocked a roadway, but also the person who simply want - ed to join in the protest by standing on Parlia - ment Hill carrying a placard. Both were subject to the same punishment – up to five years in prison. The financial measures violated Section 8 because the information-sharing obligation lacked any objective standard. The Federal Court’s decision was appealed to the Federal Court of Appeal. The hearing took place in February 2025. A decision is expected by late 2025. An appeal to the Supreme Court appears nearly certain.
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