Feds must provide clear evidence of need to invoke Emergencies Act: administrative law expert

If challenged, the federal government will have to put material before the courts that demonstrate that national action under the Emergencies Act is a necessary response to the protests and blockades against vaccine mandates in Canada, says Paul Daly, University Research Chair in Administrative Law & Governance at the University of Ottawa’s faculty of law.

It will also have to show the demonstrations are beyond the enforcement capacity of the provinces, says Daly. However, he notes, “if you look at blockades and the assembly or occupation, or whatever you want to call it, on Parliament Hill, it is not clear that these are the sorts of issues which are beyond the powers of the provinces to deal with,” Daly says.

“In favour of the federal government, however, it seems obvious there is financing coming into the county from foreign sources, exacerbating the situation. And that might be what calls for emergency action on the part of the federal government.”

Still, the federal government may have to justify itself and provide supporting materials if there is a legal challenge. “If no material is made available, the courts may draw a negative inference against the federal government,” Daly says.

“If the federal government doesn’t give any reasons and is evasive in putting evidence before the courts, I think that is likely to go down poorly with the courts. In these circumstances, I think they will expect some details of why it is the conditions for declaring a state of emergency.

“Obviously, I do not know whether such information exists,” Daly writes in a recent blog post. “On the one hand, the protests and blockades have been localized. On the other hand, they appear to have been funded by foreign sources.”

Daly says that ordinarily, “when taking action on matters of national importance in the public interest, governments are entitled to a high degree of deference.” However, in the circumstances here, “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.”

In considering the legal standard for declaring a “public order emergency” under the act, Daly points to s. 17(1) of the Act, which says: “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.”

He adds that a public order emergency is defined in the act as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” This could include, under section 2 of the Canadian Security Intelligence Service Act:

• espionage or sabotage against Canada; foreign-influenced activities detrimental to interests of Canada, and are clandestine or deceptive;
•  activities directed toward the threat or use of serious violence to achieve a political, religious or ideological objective within Canada or a foreign state;
• and activities directed toward leading to the destruction or overthrow, through violence, of a constitutionally established system of government in Canada.

Secondly, a “national emergency” is defined as “an urgent critical situation” of a temporary nature that endangers Canadians’ lives, health, or safety and exceeds the capacity or authority. The threat must also seriously consider the ability of the federal government to preserve the security of Canada and can’t be dealt with under any other law of Canada.

Daly says that while these are “objective conditions,” the test is not whether the conditions are actually met, “it is whether the federal cabinet has (the ‘Governor in Council’) has ‘reasonable grounds’ for believing that they are met.”

The federal cabinet must also have an objective basis for the belief based on compelling and credible information.

Daly says that while he does not think there would be great difficulty in establishing an objective basis for threats to the security of Canada, given the threshold is relatively low. “But the national emergency concept is more demanding: the risk must be “serious,” be beyond the capacity of a province, and necessitate more legal tools than those already available.

“Ultimately, the question is whether the federal cabinet’s determination is reasonable,” Daly says, and in reviewing a determination, the courts will likely be deferential. However, given the implications for individuals - the measures could interfere with Charter rights and impose criminal liability - and for federalism (the measures reach deep into matters of provincial jurisdiction), closer judicial scrutiny of the federal cabinet’s determination might be warranted.

While the Emergencies Act is an exercise of the federal government’s residual authority to legislate for the ‘peace, order and good government” of Canada, its use must be necessary to address the emergency, and it must be temporary. “But necessity is a high bar,” Daly writes, noting that an emergency has been described in previous court decisions as an “urgent and critical situation adversely affecting all Canadians and being of such proportions” that it can only be effectively dealt with by Parliament.

Accordingly, he adds, “it is part of the legal and factual matrix relevant to determining the reasonableness of the federal government’s declaration of emergency.

Daly says he would “be surprised” if nobody challenged the government in invoking the Emergencies Act. “But in a fast-moving situation, and because the declaration has to be debated, and it has a shelf life of 30 days in the first instance, when and if it gets to court, it might be moot.”

However, he also suggests that the courts could decide that invoking the act is a reasonable exercise of federal cabinet powers. “I think as long as there’s ever a reasoned explanation of why they acted, I think they’re likely to prevail in the case.” But it will be demanding about the reasons and evidence it will accept.”