The Supreme Court of Canada agreed to hear the federal government’s appeal of two lower courts’ rulings that its use of the Emergencies Act in February 2022 to deal with the Freedom Convoy protests was not justified.
The case, Attorney General of Canada v. Canadian Civil Liberties Association, concerns the government’s first use of the Act since it replaced the War Measures Act in 1988. The court granted the government leave to appeal the January 2026 ruling “with costs in the cause.”
The January decision by the Federal Court of Appeal was unanimous and found that the emergency declaration was unreasonable, and that the subsequent Regulations under the act violated freedom of expression (Charter section 2(b)), while the financial order’s sharing of people’s banking information with the police and spy agency CSIS without a warrant was a violation of the protection against unreasonable search and seizure (section 8).
Neither was justified under section 1, said the Appeal Court. It was the second time the courts found against the government: in January 2024, Justice Richard Mosley of the Federal Court ruled that there “was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires.”
The Canadian Civil Liberties Association (CCLA) and the Canadian Constitution Foundation (CCF) will also be able to argue their case before the Supreme Court, as it granted them leave to cross-appeal.
The government had filed its application for leave in March.
The Emergencies Act was invoked on February 14, 2022, and one of the orders that followed was the Economic Order, which made banks, credit unions, insurance companies, and crowdfunding platforms freeze accounts of “designated persons.”
That definition was so broad as to cover “any individual or entity that is engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the Emergency Measures Regulations.”
These institutions had to report to the Royal Canadian Mounted Police (RCMP) or the Canadian Security Intelligence Service (CSIS) without delay any property they had “reason to believe” belonged to such a person.
The Appeal Court found that the RCMP gave financial institutions information about 57 people and entities, resulting in the freezing of about 257 accounts.
The RCMP’s own superintendent admitted in cross-examination that all they required was “bare belief,” the Federal Court noted.
Mosley said that at the outset he had been inclined to believe that the invocation of the Act was justified, but changed his mind after considering the evidence and arguments – particularly those presented by the CCLA and the Canadian Constitution Foundation.
The Appeal Court was equally unimpressed by the government’s actions, saying that “as disturbing and disruptive as the blockades and the convoy protests in Ottawa could be, they fell well short of a threat to national security.”
The court also said that the Regulations sought to end the blockades “by stamping out entire protests – affecting those involving violent acts as well as protesters engaged in entirely peaceful, non-violent activities.”
The RCMP told financial institutions to “leverage the news” and rely on publicly available information, including social media, to identify people whose accounts were to be frozen. The Appeal Court found this to be “troubling in the extreme.”
“The most egregious problem with the Economic Order, in our view, is that personal banking information belonging to individuals who were suspected of having committed offences under the Regulations could be shared with the RCMP and CSIS without a warrant or any form of prior authorization,” the Appeal Court ruling reads.
Another problem was “the lack of rigour” in identifying people whose accounts were to be frozen, and the fact that there was no way for those affected to challenge the designation.
The Appeal Court did not agree with the lower instance court that the act of freezing accounts in itself was a search or seizure under section 8 of the Charter – but the subsequent sharing of information certainly was.
The 2023 Public Order Emergency Commission under Paul Rouleau found that the government did meet the “very high” threshold for invoking the Emergencies Act – but Rouleau also said, “I do not come to this conclusion easily, as I do not consider the factual basis for it to be overwhelming.”
Documents presented at that inquiry showed that a week before the Emergencies Act was invoked, a senior adviser in the Prime Minister’s Office was already in contact with banks and insurance companies to explore how they could act “on their own” and what “helpful signals” the government could send them.
Meanwhile, the Financial Transactions and Reports Analysis Centre (FINTRAC) deputy director Barry MacKillop told MPs that those who donated to the truckers were people who were “fed up with COVID and were upset” and “just wanted to support the cause.”
Now-Prime Minister Mark Carney wrote in the Globe and Mail on February 7, 2022 that the protest was “sedition” and urged that the money funding it be cut off.
What is at stake is not 2022, but the next time. The question is, will a government be able to declare an emergency over a protest it dislikes, turn the banks into informants and enforcers – and will the courts allow it. The Supreme Court now gets to decide how much of that power the government will be allowed to keep.
