NAVARRO-GENIE: Courts ruled the Emergencies Act unlawful, but Ottawa isn’t backing down

A government found by two courts to have illegally invoked the Emergencies Act is now asking Parliament for sweeping new powers under Bill C-15. Canadians should think carefully before handing it that authority.The Federal Court of Appeal ruled in January 2026, unanimously and without equivocation, that the federal government’s 2022 invocation of the Emergencies Act was illegal. The Emergencies Act, enacted in 1988, allows the federal government to take temporary extraordinary measures in a national emergency when existing laws are deemed insufficient. The precise legal term is ultra vires — a standard term used when a government action exceeds its statutory authority — beyond the government’s authority, outside the bounds of the law it claimed to exercise.Prime Minister Mark Carney has not said a word about the ruling. The government’s entire response came from a spokesman for Public Safety Minister Gary Anandasangaree, who offered the standard-issue holding statement: the government was “reviewing the ruling and assessing next steps” while remaining “steadfast in its commitment to ensuring the safety and security of Canadians.” This is what governments say when they have nothing to say but cannot afford to say nothing. It is the administrative equivalent of a shrug.To understand what the courts were ruling on, it is necessary to recall what happened in February 2022. When the Trudeau government invoked the Emergencies Act on February 14, 2022, it did so in response to the Freedom Convoy: weeks of protests in Ottawa, blockades at border crossings, and a political atmosphere uncomfortable for a government already under pressure. The invocation granted sweeping temporary powers, including authority to ban certain public assemblies and order banks to freeze the accounts of participants without a warrant, without a judge, and without prior notice.Federal Court Justice Richard Mosley found in January 2024 that the government had met none of the three legal thresholds the Emergencies Act requires. Most provinces said they could handle the situation. The government had not demonstrated a threat of serious physical violence. And it had not exhausted the legal tools already available, tools that had worked in Coutts, Alberta, where the RCMP used ordinary criminal law to clear a border blockade..The Federal Court of Appeal agreed. Three judges found the emergency declaration unreasonable, the assembly regulations unconstitutional, and the bank-account freezing a violation of the Charter’s protection against unreasonable search and seizure. The process for identifying whose accounts to freeze was described as “troubling in the extreme”: financial institutions were expected to consult news articles and social media to decide whose savings to seize.Two levels of court. One finding. The government broke the law.Several ministers who sat at the Cabinet table when that decision was made remain in Cabinet today. They participated, directly or collectively, in a decision that two courts have since confirmed was a wholesale violation of Canadians’ Charter rights, including the right to peaceful assembly and the right against unreasonable search and seizure. They have never said they were wrong.That record now matters because Bill C-15 would grant ministers extraordinary discretion to exempt selected individuals, companies, or organizations from federal law. Bill C-15 is the government’s omnibus budget implementation bill, a large legislative package that includes a range of fiscal and regulatory measures.Buried deep in the bill, currently before the House Finance Committee, is Section 12. Its language is polite and bureaucratic. Its implications are not. Any Cabinet minister may grant any individual, company, or organization an exemption from almost any federal law, provided the minister concludes the exemption serves “the public interest” and encourages “innovation, competitiveness, or economic growth.” The only statute beyond reach is the Criminal Code..The exemption can run for up to six years. The minister needs only to notify the public “as soon as feasible,” a phrase that imposes no meaningful deadline, and may withhold information the minister decides would be “inappropriate” to disclose. No advance publication is required. No parliamentary scrutiny. No independent review before the exemption takes effect.Constitutional lawyers have a name for provisions of this kind. They are called Henry VIII clauses, after the Statute of Proclamations of 1539, through which the king sought authority to govern by royal decree rather than through Parliament. Such clauses allow the executive to suspend or override laws without returning to the legislature for permission.Section 12 is a Henry VIII clause of unusual breadth. It extends, in principle, to every federal law except criminal law. A company that secures a willing minister is, for practical purposes, above the law for up to six years, on terms the minister may keep partially secret, with no prior judicial or parliamentary check.The government does not describe it in those constitutional terms. It calls this a regulatory sandbox, a framework used in sectors such as finance and technology that allows new products or services to be tested under relaxed regulatory conditions. Limited and transparent sandbox models exist elsewhere. Section 12 is neither limited nor tightly defined. Its triggering conditions are broad enough to justify almost any exemption a motivated minister might wish to grant. “Public interest” is whatever the minister says it is..The government’s defenders will argue that safeguards exist: ministers must weigh benefits against risks, protect health and safety, and publish their reasoning. The process, they say, is disciplined. But the Emergencies Act ruling demonstrates what happens when executive discretion is stretched beyond its legal limits.The question Section 12 poses is not theoretical. It is this: can Canadians trust any minister of this government to exercise, in good faith and without meaningful advance scrutiny, the authority to exempt preferred persons from the ordinary operation of the law?Bill C-15 remains in committee. The Carney government is a minority, and the bill requires opposition support to survive. Parliament exists to scrutinize executive power, not to surrender it.A government that invoked emergency powers illegally and has not apologized is now asking Parliament for authority to exempt selected Canadians from federal law, administered by ministers who have not demonstrated they understand the limits of their office. Canadians, whatever their politics, should consider that record carefully before deciding whether to let this power stand.Marco Navarro-Genie is vice-president of research at the Frontier Centre for Public Policy and co-author, with Barry Cooper, of Canada’s COVID: The Story of a Pandemic Moral Panic (2023).

NAVARRO-GENIE: Courts ruled the Emergencies Act unlawful, but Ottawa isn’t backing down

Related Stories