Canadian Courts Are Holding the Line on National Emergency Powers - Lawfare
Title: Canadian Courts Are Holding the Line on National Emergency Powers - As the Americas drift toward rule by fiat, Canadian courts are enforcing strict limits on emergency powers.
Source: Lawfare
Date of Publication: March 17, 2026
Author: Anvesh Jain, a national security law scholar at Georgetown University Law Center.
Introduction to the article: In a recent Lawfare piece, Jeffery Tobin argued that the Americas are fast becoming a “Hemisphere of Exceptions.” From Ecuador, to Honduras, to the United States, executives across the region are increasingly deploying emergency measures—once conceived as temporary constitutional relief valves—as central instruments of governance to bypass legislative paralysis and manage chronic instability. As Tobin observes, this drift signals a dangerous transformation in which “legality [yields] to expediency” and crisis becomes a standing justification for rule by fiat.
However, one nation has emerged as a notable exception to this trend. In January, Canada’s Federal Court of Appeal (FCA) delivered a landmark unanimous decision in Canada (Attorney General) v. Canadian Civil Liberties Association. The decision affirmed that the federal government’s 2022 invocation of the Emergencies Act in response to the anti-lockdown “Freedom Convoy” was both unreasonable and ultra vires. In doing so, it upheld an earlier Federal Court ruling in Canadian Frontline Nurses v. Canada, which had found that the Cabinet lacked objectively reasonable grounds to believe a national emergency existed.
While counsel for the government still needs to review the decision and weigh a final appeal to the Supreme Court of Canada, the FCA’s ruling currently stands as the definitive interpretation of the act’s various thresholds. Consequently, Canada is emerging as a notable exception to the regional drift toward emergency powers, owing to decisive judicial interventions that have reasserted statutory limits on executive power.
