The legal challenge to Canada’s first use of the Emergencies Act is heading to the Supreme Court.
On October 22, the Court granted the federal government leave to appeal and granted cross-appeals by the Canadian Civil Liberties Association and Canadian Constitution Foundation. The docket does not yet identify a hearing date. The decision to hear the case does not resolve its merits. Supreme Court of Canada: docket 42261.
The proceedings concern the federal response to the February 2022 protests, including restrictions on public assemblies and financial-account freezes.
What the Supreme Court agreed to hear
The Federal Court found the invocation unreasonable and beyond the authority provided by the Act. It also found unjustified infringements of Charter sections 2(b) and 8. The Federal Court of Appeal dismissed the appeals and cross-appeals. Supreme Court of Canada: docket 42261.
The Supreme Court proceedings now create an opportunity to clarify how exceptional executive powers are reviewed.
For public-law practitioners, the important questions concern the relationship between the statutory emergency threshold, the evidence supporting the decision and the court’s assessment of the resulting measures.
Emergency powers and financial intermediaries
The financial-account provisions add another dimension. Emergency action can operate through private institutions, placing banks and other intermediaries between government directions and affected customers.
The case also requires careful attention to the cross-appeals. The proceeding is broader than a single request by Ottawa to reverse an adverse judgment; other parties have obtained permission to challenge aspects of the lower-court result.
As appeal materials become available, reporting should distinguish the questions the parties advance from the conclusions the Supreme Court eventually reaches.
The next procedural milestones
For counsel advising governments or regulated intermediaries, the eventual reasons could have consequences beyond the events of 2022. They may help explain what a defensible emergency decision requires, how its evidentiary foundation should be recorded and how rights-limiting measures must be justified.
The next milestones are the filing schedule, the parties’ detailed arguments and the hearing.
The Court has agreed to examine the exercise of emergency power. Its answer remains ahead.
Related coverage: Toronto Bike-Lane Advocates Plan Supreme Court Leave Application.
Sources: Supreme Court of Canada: docket 42261 .