Alan Aubut is a retired geologist, based in Nipigon.In February 2022, the Canadian federal government made the historic decision to invoke the Emergencies Act for the first time since it was passed in 1988. That fact alone should have caused caution. This move was intended to provide the government with temporary, extraordinary powers to deal with protests in several locations across Canada that were causing significant disruptions, particularly in Ottawa. This was not an ordinary policing step. It was the use of extraordinary federal power against Canadians protesting federal policy. The convoy began in opposition to the vaccine mandate imposed on cross-border truckers and grew into a broader protest against pandemic restrictions and government overreach. All in an effort to get the attention of Ottawa and the ruling Liberal party. Whether one agreed with every tactic used or not, the grievance itself was political, public, and plainly directed at Ottawa. There was little public sign that Trudeau or his cabinet wanted to hear and answer the convoy’s grievances.The contrast with Justin Trudeau’s treatment of other protests is hard to ignore. In June 2020, he joined an anti-racism protest on Parliament Hill and took a knee. During the Wet’suwet’en rail blockades that disrupted transport across Canada in 2020, he called for patience, dialogue, and mutual respect. Yet when the protest was aimed directly at his own government, the tone changed. Rather than negotiate, he thought it best to denounce. Rather than being patient, he decided emergency power was warranted.That contrast becomes even more serious when placed beside Canadian history. The Emergencies Act was enacted in 1988 to replace the old War Measures Act, which had been condemned as too broad and too dangerous to civil liberties. During the October Crisis of 1970, the FLQ kidnapped James Cross and Pierre Laporte, with Laporte eventually being murdered. That was a genuine campaign of political violence. Even then, the use of sweeping state power remained deeply controversial. Parliament later replaced the War Measures Act with the Emergencies Act precisely to prevent a repeat of that kind of overreach.That is why the 2022 invocation remains so troubling. No comparable campaign of terror existed. There was disruption, obstruction, noise, and in some places, unlawful conduct. But after reviewing the record, both the Federal Court and the Federal Court of Appeal concluded that the government did not meet the legal threshold required to invoke the Act. In plain language, Ottawa used a law designed for true national emergencies in circumstances that did not lawfully justify it..The legal challenge unfolded entirely within the Federal Court system. This is because the Emergencies Act is a federal law, and when citizens or organizations want to challenge a decision made by the federal government or its cabinet, they must go to the Federal Court, a court specifically designed to handle cases involving federal laws and the actions of federal officials.The process began when several groups, including the Canadian Civil Liberties Association and the Canadian Constitution Foundation, filed for a judicial review. They argued that the government did not have a valid reason to use such extreme measures and that the situation did not meet the strict requirements set out in the law. They believed that the government’s actions were an overreach of power. The Attorney General argued that the protests were a serious threat to public order and national security. That was the government’s claim. But in a free country, allegations are not proof, especially when compared to the circumstances of the 1970 October Crisis. Canadians are presumed innocent until proven guilty in a court of law. The Cabinet did not need criminal convictions before acting. But it did need reasonable grounds to believe that the legal threshold in the Emergencies Act had been met. That is a lower standard than a criminal trial, yet it is still a real legal test. The government failed it. When the Emergencies Act was invoked on February 14, 2022, the government relied heavily on claims of threats and violence, especially from Coutts. Later criminal proceedings did not uphold the most serious allegations in the form first presented to the public. That does not mean nothing unlawful happened. It does mean the government acted on a picture that later proved less clear and less solid than first claimed.Still, the real legal question was not whether the government could point to fear, tension, or isolated wrongdoing. It was whether the Cabinet had reasonable grounds to believe that a public order emergency existed and that ordinary laws were not enough. On January 23, 2024, Justice Richard Mosley ruled that the answer was no. The government appealed. The case was reviewed by the Federal Court of Appeal. The federal government argued that the initial ruling by Justice Mosley against them was based on a misunderstanding of the law. The Federal Court of Appeal does not hold a new trial where witnesses testify again; instead, a panel of judges reviews the written record and the legal arguments presented by both sides to determine if the lower court made a mistake in its legal reasoning. This process is essential because it allows for a higher level of scrutiny on whether the government acted within the strict boundaries set by Parliament when they created the Emergencies Act. If this court agreed with the original decision, the government's action would remain legally unreasonable; if they disagreed, they could overturn the lower court's ruling, which would then likely pave the way for a final appeal to the Supreme Court of Canada. The Federal Court of Appeal did hear the federal government’s appeal and dismissed it on January 16. It confirmed that the invocation of the Emergencies Act was unreasonable, beyond the government’s legal authority, and that parts of the measures infringed sections 2(b) and 8 of the Charter..That is what makes the next step so important. On March 17, the federal government sought leave to appeal to the Supreme Court of Canada. The Court must now decide whether this case needs another hearing after two lower courts have already ruled that the Act was used unlawfully. The argument for hearing it is simple: the Court may wish to give final guidance on the limits of emergency power. The argument against hearing it is just as simple: two courts have already drawn a clear line, and reopening the case risks weakening that line instead of strengthening it. Add to this the problem of appearance. In comments published on April 9, 2022, Chief Justice Richard Wagner described what happened on Wellington Street as “the beginning of anarchy” and said some people had decided to “take other citizens hostage” and “take the law into their own hands.” Those remarks do not decide the case on their own. But they do raise a fair question about whether the Court should be especially cautious in taking this appeal at all, and whether Wagner should sit on it if leave is granted. At the very least, the Court should avoid any step that makes Canadians think the result was decided before the hearing began. The issue is now plain. In Canada, people are presumed innocent until proven guilty. Allegations, rumours, and political fear are not enough. The old War Measures Act became a warning about what happens when a government reaches too quickly for extraordinary power. The Emergencies Act was supposed to be the lesson learned. It was supposed to impose restraint, raise the bar, and make sure that what happened in 1970 could not be repeated under a different name.Yet in 2022, that line was crossed. Ottawa reached for a law meant for true national emergencies and used it against a political protest that two courts have now found did not meet the legal threshold. That is why this case matters far beyond one convoy, one prime minister, or one moment of national anger. If the safeguards written into the Emergencies Act can be pushed aside when they become inconvenient, then they are not safeguards at all. They are window dressing. The Supreme Court should not blur that line. It should leave it in place, because to do otherwise would be “An Act Too Far.”Alan Aubut is a retired geologist, based in Nipigon.
