ULTRA VIRES

Ottawa, January 16, 2026

Attorney General of Canada et al. v. Canadian Civil Liberties Association et al., 2026 FCA 6.

The Federal Court of Appeal confirms that the federal government’s invocation of the Emergencies Act was unreasonable and ultra vires [beyond their legal authority], and that it infringed paragraph 2(b) and section 8 of the Canadian Charter of Rights and Freedoms.

The decision to invoke the Emergencies Act was unreasonable and ultra vires.

To avoid the excesses and abuses of the War Measures Act, Parliament drafted the Emergencies Act with narrowly defined terms to constrain the executive’s use of its extraordinary powers, that amount to a temporary amendment of the Constitution in times of national emergency. The government did not demonstrate that it had reasonable grounds to believe that a threat to national security or a national emergency existed within the meaning of the Act, or that existing laws were unable to resolve the situation.

The Regulations infringed paragraph 2(b)’s freedom of expression.

Freedom of expression is one of the fundamental institutions of representative democracy, and can only be restricted for the most substantial and compelling reasons. The symbolic location of protests at border crossings and in front of Parliament, disruptive though they were, did not fall outside the protection of paragraph 2(b). Because they criminalize these protests, whether or not participants were breaching the peace, the Regulations infringed the protesters’ freedom of expression and were not justified under section 1 of the Charter.

The Order infringed section 8’s right against unreasonable search and seizure.

While the government had a pressing and substantial objective in enacting the Economic Order, its implementation was ad hoc and fraught with confusion, requiring financial institutions to disclose the existence of property they had “reason to believe” was owned, held or controlled by a “designated person”, without a warrant or specific procedures. Accordingly, the searches authorized by sections 5 and 6 of the Order were not reasonable within the meaning of section 8 of the Charter and were not justified under section 1 because they did not minimally impair the right to be free from unreasonable searches and seizures.