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| Sara Blake |
Both concern statutes that prescribe a two-stage regulatory process. They first authorize cabinet to make a proclamation as to a current problem and then, second, authorize regulations to address it. Both statutes prescribe preconditions that must exist before a proclamation may be made. The focus of both cases was on whether the preconditions for the proclamations were met.
One case concerns cabinet’s authority granted by the Emergencies Act to proclaim a public order emergency to deal with the trucker convoy and border blockades: Canada (Attorney General) v. Canadian Civil Liberties Association, 2026 FCA 6. The validity of both the cabinet order and the regulations were challenged. The application for judicial review was heard despite being moot — given that the order and regulations were in effect for only nine days.
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Both cabinet proclamations concerned policy choices about matters of significant public interest. Courts give deference to cabinet’s policymaking role by application of the reasonableness standard of review. In these cases, as the parameters of cabinet’s authority are set by statute, the scope of cabinet’s room to manoeuvre was determined by the application of principles of statutory interpretation. Both statutes prescribed preconditions that must exist before cabinet may make a proclamation. The court reviewed the information available to cabinet to assess whether the preconditions were met. The validity of the regulations depended on the validity of the proclamation.
Order listing manufactured plastics as toxic substances
The plastics coalition focused on cabinet’s broad-brush approach that treats all plastics alike, disputing whether all plastics enter the environment and whether all plastics are harmful. The court ruled that the statute required only that cabinet “be satisfied” that a substance may enter the environment and may cause harm. On application of this statutory prerequisite, which does not require any degree of certainty, the court ruled that order was authorized. It was enough that there was some information before cabinet including analyses of scientific reports demonstrating the potential of plastics to cause harm.
The court noted that the statute prescribes a two-stage regulatory process in which a toxic substance is first listed by cabinet. A listing authorizes a minister to decide how best to regulate it, if at all. Details as to which plastics will be regulated and how are left to minister’s regulations at the second stage. Cabinet’s order, at the first stage, imposes neither a prohibition nor a sanction. Minister’s regulations were made but were not challenged.
The plastics coalition also argued that the order was unreasonable because only one per cent of manufactured plastics enter the environment each year. The court dismissed this argument saying that, it is not for the “Court to develop its own measurement or yardstick to assess the reasonableness of the Order.” It accepted cabinet’s choice of yardstick, specifically that 29 kilotonnes of manufactured plastics enter the environment annually. These two measurements are the same but viewed from different perspectives.
The plastics coalition also argued for chemical and quantitative testing to determine the toxicity of specific plastics to the environment. The court rejected these arguments as irrelevant and unethical. First, “the chemical content of [a manufactured plastic] is irrelevant to the sea otter choking on a plastic straw.” Second, “quantitative testing would be impractical and ethically reprehensible. No court should require that a decision maker engage in unethical testing to meet the threshold of reasonableness.”
Proclamation of a public order emergency
The Emergencies Act tightly prescribes a variety of preconditions for a variety of emergency situations. It is detailed as to the types of emergencies that may be addressed and the preconditions to be met.
Before the Act may be invoked, cabinet must have “reasonable grounds to believe” the preconditions exist, that the problem cannot be dealt with effectively under any other law and, after consultation with the provinces, that the emergency exceeds the capacity or authority of a province to deal with it.
The court ruled that, provided these preconditions were met, cabinet’s exercise of discretion was entitled to a high degree of deference and that cabinet’s decision to issue a proclamation involves a broad range of policy and public interest factors. The need to balance competing interests and determine how best to use public resources in fast-moving situations is best left to cabinet. That discretion, however, can only be exercised if the legal preconditions prescribed by the Act have been met.
The court noted that the statutory “reasonable grounds to believe” standard is an established objective standard that reduces the scope of cabinet’s discretion. And the history of the Act indicates a parliamentary intention to reduce the scope of cabinet’s discretion and to subject its decision to invoke the Act to judicial review. It was enacted to replace the lack of preconditions that enabled the invocation of the War Measures Act in 1970 to call up the military to address the FLQ problems in Quebec. The draft of the Emergencies Act first tabled in Parliament authorized cabinet to act if it is “of the opinion” but during debate this was replaced with the standard “reasonable grounds to believe” expressly for the purpose of ensuring that a decision to invoke the Act may be challenged on judicial review.
Among the preconditions was a list of the types of emergencies for which the powers granted by the Act could be invoked. In this case, cabinet’s primary reason for invoking the Act concerned threats to the economic security of Canada, specifically, the trade-related impacts of the border blockades. The court ruled that this type of emergency could not be relied upon because it was not listed in the Act, noting that Parliament may amend the Act to add it.
The listed statutory emergency at issue in this case was “the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.” The court ruled that this precondition was not met. Cabinet had some evidence of threats of violence but not enough to meet the objective standard of “reasonable grounds to believe.”
Another precondition turned on the capacity and authority of the provinces to deal with the problems pursuant to existing laws. The court found that all border blockades and related threats of violence were dealt with by local police and other authorities, most before the proclamation was made. However, the Ottawa police had been unable to deal with the disturbances at the centre of the city, not because of a lack of legal authority but rather because city police resources were overwhelmed by the magnitude of the problem. The court found that what was lacking to re-establish public order in Ottawa was not more legal tools beyond what was already available, but more policing resources and that the Ontario government had begun steps to address that problem. The court ruled that the evidence supports the conclusion that the situation was critical and required an urgent resolution by governments but that the evidence does not support the cabinet conclusion that it could not have been effectively dealt with by Ontario pursuant to other laws.
The court ruling that the cabinet proclamation was not authorized by the Act should have been the end of the case given that the validity of the regulations depended on a valid proclamation.
However, the court also ruled, obiter, that certain provisions of the regulations violated the Charter rights to freedom of expression (s. 2(b)) and to be free from unreasonable seizure (s. 8) and were not saved by s. 1 of the Charter. I leave discussion of constitutional issues to others.
Conclusion
I note some similarities and differences in these two cases.
One concerns a precautionary approach, which was mentioned by the court in both cases. In what circumstances may a precautionary approach be taken to protect the public interest? In the plastics case, the court noted that a precautionary principle informs environmental protection — a lack of scientific certainty should not postpone the development of measures to prevent environmental degradation. In the national emergency case, the court recognized that cabinet must take a precautionary and preventive approach to addressing emergencies but ruled that this does not affect the standard or degree of scrutiny by the reviewing court of whether the statutory preconditions were met.
Another concerns the evidentiary standard that cabinet had to meet before making the proclamation. The statute governing emergencies prescribed the standard, “reasonable grounds to believe.” Belief is subjective, but it must be based on reasonable grounds, which is an objective standard that allows a court to assess whether the information met this standard. In contrast, the environmental standard is “be satisfied,” which is a subjective standard that, short of a complete absence of information or policy rationale, is unreviewable by a court.
The primary difference between the two factual circumstances concerns their impact on individual rights and freedoms. The property and financial interests impacted by environmental regulation are not constitutionally protected. They do not have the same degree of societal importance as the fundamental freedoms and rights protected by the Charter. The invocation of the Emergencies Act in this case impacted individual Charter rights including freedom of speech (protest) and freedom from unreasonable seizure of assets (individual and fundraisers’ bank accounts were frozen by regulation). The Act cites the importance of Charter rights in its preamble demonstrating Parliament’s intention that Charter rights be respected when a public order emergency is proclaimed (subject to justification under s. 1 of the Charter).
Together these cases confirm the primacy of the rule of law as enacted by statutes and the importance of doing proper statutory interpretation to determine what a statute authorizes. Discretionary decision-makers must respect the statutory boundaries of their authority.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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