After the Freedom Convoy, What Is the Emergencies Act Actually For?

The Emergencies Act is now nearing forty years old. Its future is uncertain, its past now problematic.

It may be the only piece of Canadian legislation never intended to be used. Made into law in 1988, it was devised for a severe national crisis, giving the federal government extraordinary powers to direct a response—on a strictly temporary basis.

The law addressed a range of scenarios, from a “public welfare emergency” caused by natural disaster, disease, or pollution, to political disruption amounting to a public order breakdown, to international emergency, and, finally, war. It was hoped, of course, that none of these situations would ever arise—a hope easier to indulge in the late 1980s, with the Cold War winding down and democracy seemingly in the ascendant, than it is today.

The Emergencies Act sat, forgotten, for decades. But along came COVID-19 restrictions, which sparked the Freedom Convoy in mid-January 2022—a protest led by truckers and their supporters who opposed vaccine mandates and other public health rules. It culminated in a weeks-long occupation of downtown Ottawa and blockades choking off trade at key border crossings—from Windsor’s Ambassador Bridge to routes in the Prairies and British Columbia.

Who can forget the spectacle? Big rigs parked outside Parliament Hill and the Prime Minister’s Office. Diesel engines running, horns blaring, children in the cabs, an encampment in downtown Ottawa that blended politics with playtime. Bouncy castles! Fireworks! There was also a darker side: a fear of extremist violence. Discovery of a weapons cache at the Coutts, Alberta, border crossing was a major tipping point for the Liberal government of then prime minister Justin Trudeau. It responded by invoking the act on February 14, 2022.

This singular use has been enmeshed in controversy, and judicial review, ever since. The fourth anniversary of that moment offers a chance to rethink the role of the legislation in our public life. The Emergencies Act faces two fates: ready it for a twenty-first-century age of global “rupture,” or put it under lock and place the key back on a very high shelf.

The Emergencies Act is, in a sense, the child of the War Measures Act, an older emergency legislation born in the midst of global conflict and designed to give Ottawa sweeping powers to confront existential threats. It was relied on during World War I and World War II to mobilize a war economy and lock down national security, including harsh internment measures against diaspora communities whose loyalties were feared, unjustly. It was in place when Igor Gouzenko defected in September 1945 to warn Canadians of the Soviet spy threat—and was used to arrest and detain Canadians suspected of involvement in Soviet espionage.

Then, in 1970, Prime Minister Pierre Eliott Trudeau invoked it to quash what his government deemed to be an “apprehended insurrection” in the course of hostage taking and subsequent murder at the hands of a couple of violent “cells” of the Front de libération du Québec, an extremist movement that sought Quebec’s independence from Canada. At the time—and since then—many questioned the restrictions on civil liberties, including arrests of alleged FLQ supporters and the deployment of the military to Montreal streets.

Despite criticisms and unease about the War Measures Act, governments were exceedingly slow to fashion something new. Not until 1988 was it abolished and replaced by the Emergencies Act. A key architect of the revamped legislation, Perrin Beatty—as minister of national defence at the time—today calls Trudeau’s earlier use of the law “the most egregious violation of civil liberties in my lifetime.” He believes it was a political move meant to smash the FLQ, not to crime-solve. Beatty told me the new act reflected a broad consensus that governments may need to assume extraordinary powers in different kinds of emergencies—but only in exchange for strict limits. Those powers, he emphasized, had to be “time-limited” and subject to “several layers of oversight and accountability.”

That framework, built to prevent another 1970, would not be tested until 2022, when the government was faced with a fast-scaling mobilization aimed squarely at its legitimacy. Police underestimated the Freedom Convoy’s scope and staying power. Intelligence misread its objectives and capabilities. Federal and provincial coordination came apart.

With the protests in their eighteenth day, and facing pressure to do something, the government used the act to dismantle protest zones and freeze the bank accounts of identified protesters, largely truckers. That was followed by major police operation in Ottawa’s downtown core, opposite Parliament Hill. The operation succeeded in ending the occupation without bloodshed. The Emergencies Act was revoked on February 23, a little over a week after its inception.

To take those steps, the Trudeau cabinet turned to Part II of the Emergencies Act, believing that it faced a “public order emergency.” Four interlocking thresholds must be met for that call: the emergency must be national in scope; it must arise from threats to the country’s security; it cannot be dealt with effectively by the provinces or territories or be of a kind that seriously threatens Canada’s ability to preserve its sovereignty, security, and territorial integrity; and it must involve a situation that cannot be adequately addressed by any other law.

In trying to meet these thresholds, the government got creative in its interpretation of the provisions. Just how creative was indicated in the explanation provided to Parliament—and in the backlash that followed.

The Trudeau government cited threats to Canada’s economic security, the impact of border blockades on relations with trading partners, and breakdowns in supply chains. In its view, the Freedom Convoy crossed the threshold from dissent into a movement that supported “serious violence” against people or critical infrastructure “for the purpose of achieving a political or ideological objective within Canada.” Finally, the government pointed to “the potential for an increase in unrest and violence” that could endanger Canadians.

How creative was this? There was nothing in the 1988 act about threats to economic security, critical infrastructure, international reputation, or supply chains. Nor did the Emergencies Act offer any framework for considerations of future threats. The then clerk of the Privy Council warned the prime minister that the rationale “may be vulnerable to challenge”—and so it was.

The Trudeau government’s decision has been subject to a public inquiry and has undergone judicial review; it may go to the Supreme Court for a final test. To date, the count is one win and two losses.

The win came in a public inquiry ordered under the act. In his February 17, 2023, report, Justice Paul Rouleau, who headed the Public Order Emergency Commission, concluded the government was “reasonably concerned” conditions were deteriorating toward something “dangerous and unmanageable.” He found invoking the act “appropriate.”

This was only the first shot. A lawsuit was also in the works, led by civil rights advocacy groups. Justice Richard Mosley, for the Federal Court, reached a different conclusion. In a ruling released on January 23, 2024, he said his initial inclination was to view the Emergencies Act’s use as reasonable. He wrote that the events in Ottawa and elsewhere in January and February 2022 “went beyond legitimate protest and reflected an unacceptable breakdown of public order.” He added that he had “considerable sympathy” for government decision makers and that, had he been “at their tables at that time,” he might have agreed it was necessary to pull the trigger.

But in the end, Justice Mosley ruled the legal thresholds had not been met. He found the government’s concerns around impacts to economic security absent in the law. As for the government’s fear—rooted in the discovery of a weapons cache at the Coutts border blockade—that greater violence could be on the horizon, he deemed the threat outlook “only speculation.” As Justice Mosley said, he had to interpret the act as he found it.

The government challenged the ruling, sending the case to the Federal Court of Appeal. Its ruling, published on January 16, 2026, delivered a further hammer blow. The judges supported Justice Mosley. They, too, found that there was neither a threat to the security of Canada as defined in the act nor a “national emergency.”

In both rulings, justices didn’t accept the creative interpretation the government had relied on—2022 did not meet 1988. One of the challengers, the Canadian Constitutional Foundation, was positively elated, finding that the court had “accepted nearly ALL of the CCF’s arguments.”

CCF’s online response was stamped “Victory” and carried a picture of Freedom Convoy protest rigs headed down a highway, grills festooned with “Freedom” banners. Maybe not in the best of taste, but at least you know where their sympathies lie.

The good news in all this: independent judicial review showed its merit in holding the government to account. But the outcome speaks to the complex nature of the Emergencies Act and reinforces a sense that it hovers between being a last resort and a no resort.

Here’s the thing. In reality, any future public order emergency may well result from serious breakdowns in policing and intelligence, with an overlay of political division and anger with the government, just as it occurred with the Freedom Convoy protests. It will likely be fluid in nature, amorphous in its ideological shape, will impact critical infrastructure and harm economic security, and will damage Canada’s international relations. There will always be concerns about the future potential for violence and fears of police overstretch. A future public order emergency may not be national in scale geographically—that is just the nature of Canada—but may be national in impact. Yet the thresholds built into the 1988 law to make it a last-resort tool are deservedly strong. They cannot be undone.

While, as Justice Rouleau suggested, the use of the Emergencies Act in 2022 may have been a response to a singular moment, it would be foolhardy to suggest that there would never be a time when a situation might arise that would tempt a future government, feeling it had run out of options, to again get creative in its interpretation.

The big question that now looms for the Emergencies Act is what future does it have? If the government felt in 2022 that it faced a public order emergency, understood it to be a last resort, and then was found by the courts to have wrongly applied the law, where does this leave us?

The answer begins with the Rouleau Commission’s recommendations for reform and how the Trudeau government responded. The strongest of their recommendations involved removing the definition of “threats to the security of Canada.” That definition had been imported from the Canadian Security Intelligence Service Act as a convenience in 1988. There was much discussion during the hearings about the extent to which it served as a twenty-first-century concept or should be relied on at all. The debate was complicated by the irony that CSIS identified no national security threat during the Freedom Convoy protest, even as its own director advised the prime minister that invoking the act was appropriate.

But if you remove the existing definition, a new one will be needed. That whole enterprise might need to wait for the promised review of the CSIS Act itself, which is unlikely to get underway before 2030. One ball punted well down the field.

The other major recommendation from Justice Rouleau was for an “in-depth review” of the provisions for dealing with a public order emergency. He set out only very general parameters for that review: modernize the definition, provide the government with the tools needed to respond, and ensure the thresholds for invocation remain high. These will prove challenging to mesh together.

Beatty, who sponsored the original Emergencies Act, has this caution: “I don’t feel personally that major changes are needed to the act, and I hope that government is wise enough not to appeal the most recent court decision. However, if it does want to reopen the act, my advice would be to do it in a time of calm, when emotions are not inflamed, and that the government should act with openness and a generosity of spirit with the other parties.”

Sensible counsel. But he also had this to say: “Unfortunately, a bipartisan openness and generosity of spirit is in short supply these days.”

The government took their time responding to Justice Rouleau’s recommendations. In March 2024, then public safety minister Dominic LeBlanc said only that any future amendments “should ensure that governments can continue to effectively and rapidly address future emergencies that may be difficult to foresee and occur in challenging circumstances.”

That fell short of a promise for an “in-depth review.” In a later statement, LeBlanc said that, when considering legislative changes, the government would “engage provinces and territories, Indigenous partners, stakeholders, and civil society.”

That sounded more promising. I asked the public safety department whether any such consultations had been undertaken. I received this gnomic response: “The government continues to engage with partners and stakeholders to identify ways to strengthen interjurisdictional collaboration and co-operation.”

Taken at their word, that is a very narrow focus for any reform of the Emergencies Act.

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So, this leaves us where? Four years after the Emergencies Act was used to respond to the Freedom Convoy, a use criticized by the courts, it remains in place, untouched. No action appears on the horizon.

Yet two things are clear. One is that any future government will remain extremely leery of reaching for the act again. Kent Roach, one of Canada’s leading national security law experts, is fine with that. He told me that, in his view, a “chill” over its use is “not always a bad thing.” Beatty reinforced the idea that the act should be a measure of last resort, to avoid any temptation to reach for the “nuclear threshold” for suspending civil liberties.

That said, an act still needs to be both robustly protective and genuinely available to governments in the right circumstances. Yet the experience of 2022 suggests the provisions governing a public order emergency are effectively unusable in a democratic context. The same, I think, could be said for the public welfare emergency provisions. If the COVID-19 pandemic did not justify their use, it is hard to imagine a future crisis that would.

If these parts of the act are indeed unusable, the only sensible recourse is to ensure no public order or public welfare emergency is allowed to become unmanageable in the first place. Preventing policing, intelligence, and political failures must therefore be the priority. What was a rueful note in Justice Rouleau’s report—that the country should never have arrived at the brink of using the Emergencies Act—offers the clearest remedy for keeping Pandora’s box closed.

This leaves two other parts of the act—those dealing with an “International Emergency” and a “War Emergency.” These parts must remain usable in a twenty-first-century world.

Where public order emergencies are hemmed in by interlocking thresholds, the act’s other two parts are looser. In war, the government can proclaim the country is in dire trouble and impose “special temporary measures.” Those powers are not explicitly circumscribed by legislation. About the only thing a war emergency does not allow is conscription. Strong accountability remains: the declaration must be passed by Parliament, must be reviewed on an ongoing basis by a special parliamentary committee, and must be subject to an inquiry after the emergency is over. War is war, the legislation suggests, and a government must have every means at its disposal to respond, subject only to Parliament. And retrospective judgment, of course.

Things get more interesting when it comes to the concept of an “international emergency.” For starters, there is the definition:

international emergency means an emergency involving Canada and one or more other countries that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence that is so serious as to be a national emergency.

The definition suggests that such an emergency may not target Canada singularly. That surely needs some rethinking in our current era of hybrid warfare, when acts of “intimidation or coercion” could encompass cyberattacks on critical infrastructure, economic pressure undermining sovereignty, efforts to degrade defence capabilities, or political pressure campaigns that menace our democracy with force or violence.

These threats could be aimed at Canada by established adversaries, such as Russia and China; some could even be directed at Canada by the Donald Trump administration, in keeping with its determination to exercise power in the western hemisphere, as set out in its recent National Security Strategy.

Unlike the war emergency powers, those available to a government to deal with an international emergency are enumerated and are draconian. Canadians might be surprised to learn of them. They include control of industry, of property, tight oversight of defence contracts and supplies, direction of essential services, securing of protected places, control of international financial activities, regulation of travel outside Canada, and even powers to remove people from the country other than citizens, permanent residents, and those with special protections.

As with the war emergency regulations, the same strong powers of accountability remain—parliamentary approval, ongoing study, inquiry.

The problem with the international emergency concept is that, while it had an element of prescience about future threats, it doesn’t specifically address key elements of hybrid warfare and cannot frame appropriate responses. There is no definition of the forms of intimidation or coercion that would warrant its use and an uncertain connection between such threats and the options available to the government. It risks the same temptation to creativity that enmeshed the 2022 invocation of the public order emergency provisions. This needs fixing.

Right now, what the courts have called a misuse of one part of the act has cast a pall over the entire thing. We should let the public order and public welfare emergency provisions go back to sleep. They are unusable in our democracy, in our federal system. But we can’t afford amnesia about the Emergencies Act as a whole. At least two of its parts must remain alive, however nuclear an option they are. That also means ensuring Canadians are aware of the powers available to the government.

The age of global rupture requires no less. The need for appropriate tools to deal lawfully with grave acts by foreign powers that threaten Canada’s existence may be closer than we think. Come to that, so might war.