Determining Whether There is a “Public Order Emergency” in Canada: How Would the Courts Approach the Issue?

In earlier posts on this week’s s declaration of a “public order emergency”, I have considered whether asset freezing is authorized in a “public order emergency” (see here) and outlined the scope of the emergency measures adopted last night (see here).

In this post, I consider the legal standard for declaring a “public order emergency” under the Emergencies Act.

The starting point is s. 17(1) of the Act:

When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

I will come back to the consultation requirement at the end of this post.

What is a “public order emergency”? The concept is defined in s. 16: ” an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency”.

This definition refers us to two different concepts. First, “threats to the security of Canada” are defined in section 2 of the Canadian Security Intelligence Service Act:

• (a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
• (b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
• (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
• (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,

Second, a “national emergency” is defined in s. 3 of the Act:

3 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that

• (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
• (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.

These are objective conditions. However, the test is not whether the conditions are actually met, it is whether the federal cabinet (the “Governor in Council”) has “reasonable grounds” for believing that they are met.

The discretion under s. 17 is not cast in the widest terms possible. To begin with, there is a “reasonable grounds” requirement. The statute does not require (as some statutes do) simply that “the Governor in Council believes” or “in the opinion of the Governor in Council”. Rather, the federal cabinet must have “an objective basis for the belief which is based on compelling and credible information”: Mugesera, 2005 SCC 40 at para. 114.

This objective basis has to be present in respect of both of the concepts — threats to the security of Canada and national emergency — mentioned above. I do not think there would be great difficulty in establishing an objective basis in relation to threats to the security of Canada, as the threshold is quite low (see especially element (c)). But the national emergency concept is more demanding: the risk must be “serious” (and, under branch (a), be beyond the capacity of a province) and necessitate more legal tools than those already available.

It is true that in making determinations about such questions, the federal cabinet is in a particularly good position. In a recent case, the Federal Court of Appeal said that a decision about asset freezing taken in the context of international sanctions was:

… a factually suffused determination that draws upon the Governor in Council’s access to sensitive state-to-state communications, its expertise in international relations, and its role at the apex of the Canadian executive in developing government policy in many disparate areas including international democracy, anti-corruption and accountability. These are matters not normally within the ken of the courts and so courts are reluctant to second guess (Portnov v. Canada (Attorney General), 2021 FCA 171, at para. 44).

Ultimately, the question is whether the federal cabinet’s determination is reasonable. In reviewing a determination, the courts will be deferential.

However, reasonableness is a contextual standard. In Portnov (ibid) the effect on the individual militated in favour of less deference. In respect of the measures adopted under the Act, I think the implications for individuals (the measures interfere with Charter rights and impose criminal liability) and for federalism (the measures reach deep into matters of provincial jurisdiction) militate in favour of closer judicial scrutiny of the federal cabinet’s determination.

Notably, the Act represents an exercise of Parliament’s residual authority to legislate for the peace, order and good government of Canada, or POGG. This authority is limited in scope. The leading case is Re: Anti-Inflation Act, 1976, [1976] 2 SCR 373, from which it is clear that the legislation must be necessary to address the emergency and it must be temporary. The measures under the Act (which in principle have also to respect the boundaries of the POGG power) are inherently temporary, or, at least, have to be re-authorized regularly.

But necessity is a high bar. As Ritchie J wrote (for three judges), an emergency is “an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament in the exercise of the powers conferred upon it…” (at p. 437). This, I think, is a higher bar than the one set out in the Act. Accordingly, it is part of the legal and factual matrix relevant to determining the reasonableness of the federal government’s declaration of emergency. Indeed, this judicially imposed requirement on emergencies may be entirely objective, as it is not to be assessed in light of the federal cabinet’s belief that there are “reasonable grounds”; rather, it may be a constitutional condition precedent to the validity of anything done under the Act. (I welcome any thoughts on this point, and the point about regulations having to track the boundaries of the POGG power.)

Given this legal and factual matrix, it seems to me that, if challenged by way of judicial review, the federal government will have to put material before the court which demonstrates that national action was a necessary response to the state of affairs, which was beyond the capacity of provinces. Obviously, I do not know whether such information exists. On the one hand, the protests and blockades have been localized. On the other hand, they appear to have been funded by foreign sources. The point, however, is that it is not plainly obvious that responding to the protests and blockades was beyond the capacity of the provinces. If no material is made available, the courts may draw a negative inference against the federal government (see generally, Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at paras. 104-122).

There is one last contextual factor which bears on the reasonableness of the federal government’s declaration. As mentioned above, s. 25 of the Act contains consultation requirements. Section 25(1) requires consultation prior to the making of a declaration: the provinces have no veto; they are only entitled to be consulted, which they were. However, s. 25(3) gives a province a veto in circumstances where the emergency is contained within one province. Arguably, at the time the declaration was issued, the underlying problems were confined to Ontario. If so, Ontario would have had a veto on the declaration, under s. 25(3). Again, I do not know if the emergency conditions were present elsewhere in the country. But I would suggest that the possibility that the federal government could circumvent s. 25(3) by declaring a national emergency when, in reality, there is only a localized emergency, militates in favour of greater judicial scrutiny of the objective bases for the declaration of emergency.

Ordinarily, when taking action on matters of national importance in the public interest, governments are entitled to a high degree of deference. In the circumstances here, however, I think the degree of deference due to the federal government is liable to be somewhat lower. On any judicial review, the evidence made available will be critical.

This content has been updated on February 16, 2022 at 19:32.