On Feb 17, 2022, the Canadian Constitution Foundation announced it is launching a legal challenge to the federal government’s invocation of the Emergencies Act. The federal government invoked this extraordinary piece of legislation in response to protests concentrated in the Ottawa region against various pandemic mandates.

The Emergencies Act was enacted to replace the discredited pre-Charter War Measures Act, which was used during the Second World War to intern Japanese Canadians and Italian Canadians, and during the FLQ Crisis in Quebec. The Act was drafted carefully and narrowly, to minimize the federal governments to abuse emergency powers again. The Act requires that the federal government demonstrate that a situation cannot be effectively dealt with under any other law of Canada.

The threshold for using the Emergencies Act is extremely high and has not been met. The decision to invoke the Emergencies Act, which has never been used or interpreted by the courts, is unprecedented. If Parliament authorizes the proclamation of the public order emergency, the courts will be the last defence for the rule of law.

The CCF is represented by lawyers Sujit Choudhry and Janani Shanmuganathan. Our factum can be found here.

On Feb. 23, the Canadian Constitution Foundation filed an urgent application for judicial review of the government’s decision to invoke this extraordinary piece of legislation. This application will still proceed because it is imperative this legislation receive scrutiny the first time it is used, especially when the circumstances of its use are so questionable. By continuing with our case, the CCF hopes a legal precedent will be set so that this legislation is not misused again. Emergency legislation should not be normalized.