Correction, March 17, 2026 5:35 pm: Minutes after publishing this article, at 5:00 p.m. EST on March 17, Canadian Affairs learned that the federal government was appealing the Federal Court of Appeal ruling. This article has been updated to reflect the changed legal landscape.
Ottawa is appealing a Federal Court of Appeal ruling that the Trudeau government was wrong to invoke emergency powers during the pandemic.
On March 17, on the last day possible, the Carney government indicated it would appeal the appellate court’s January decision, which affirmed that Ottawa exceeded its authority by invoking the Emergencies Act during the trucker protests in February 2022.
The organizations that brought the legal challenge say the trial and appellate court rulings correctly defined when the Emergencies Act can be invoked.
“The [appellate] decision sends a clear message to this, and future governments, that even in times of crisis, no government is above the law,” Anaïs Bussières McNicoll told Canadian Affairs in an interview before Ottawa announced its intention to appeal.
Bussières McNicoll is director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, one of the organizations that brought the legal challenge.
Bussières McNicoll says that, from the CCLA’s perspective, the case was not about the Freedom Convoy, which shut down parts of Ottawa for several weeks in early 2022.
“We agreed that the blockades needed to go, but they could and should have been handled through ordinary laws.
“What this case really is about is making sure that exceptional emergency powers are only used as a last resort.”
This view is shared by the Canadian Constitution Foundation, the other organization behind the challenge.
The court’s ruling is important because it “will make it hard for a future government to do what the Trudeau government did if faced with political tumult,” Christine Van Geyn, the foundation’s interim executive director, told Canadian Affairs in an interview in February.
“ When they created the Emergencies Act, [Parliament] intended for this to be a narrow and exceptional tool, and that’s what the court has affirmed here,” she added.
‘Watered down’ definition
The Emergencies Act allows cabinet to declare a “public order emergency” if strict preconditions are met, including the existence of “threats to the security of Canada.”
Once a public emergency is declared, cabinet can issue emergency regulations and orders without parliamentary approval — including restricting public assembly, regulating travel or property, and directing financial institutions to freeze assets.
In trying to justify its use of the act, Ottawa tried to “water down” the definition of public order emergency to include activities that could cause economic harm, Van Geyn said.
Such a definition would enable governments to declare emergencies over labour disruptions or other protests — potentially chilling lawful protest, she says.
Both the trial and appellate courts rejected Ottawa’s argument.
In a unanimous decision, the appellate court affirmed that for the act to be invoked in the future, there would need to be both “threats to the security of Canada” and a situation so serious as to constitute a national emergency.
The Carney government is appealing this ruling to the Supreme Court of Canada, the country’s highest court.
‘State surveillance by proxy’
One of Ottawa’s more controversial actions after invoking the Emergencies Act was its decision to require financial institutions to freeze the assets of “designated individuals.”
“The consequences are real and they will bite,” then-deputy prime minister Chrystia Freeland had said in a February 2022 speech announcing the government’s move to freeze the bank accounts of some protestors.
“We now have the tools to follow the money, we can see what is happening and what is being planned, and we are absolutely determined that this must end now and for good,” said Freeland.
In mid-February 2022, the RCMP disclosed information about individuals to financial institutions that was used to freeze about 257 bank accounts.
To make decisions about which accounts to freeze, “financial service providers were told by the RCMP to ‘leverage the news’, and to rely on public knowledge, including information available over the internet and social media,” the ruling says.
Treating banks as a tool of the government is cause for concern, says Bussières McNicoll. “That definitely sounds a lot like state surveillance by proxy,” she said.
Normally, if the state wants to force financial institutions to do something, it must go before a judge and present evidence and debate its case, she says. “All of those basic due process requirements were absent,” she said.
Van Geyn, for her part, says the federal government’s actions constituted a clear example of “political debanking” — the withdrawal of financial services based on political activity or expression.
“If someone gets in power that disagrees with you, do you want them to have the power to freeze your bank account because you’re protesting, or because you’re expressing that you disagree with them?
“That’s a very dark and sort of extraordinary thing to do in a liberal democracy … It’s quite a totalitarian action to demonetize or to take the assets of your political enemies.”
Van Geyn says the trial and appellate court decisions are important for affirming to the public that the Trudeau government’s actions were offside.
“I think this [appellate decision] affirms what many Canadians saw, which is, maybe they didn’t like the [trucker] protest, but the reaction from the Trudeau government was way over the top,” said Van Geyn.
“And it was a very politically motivated decision. I think a lot of people felt that way, even if they didn’t agree with the tactics of the convoy.”
