CCF seeks judicial review of Niagara’s unlawful solar eclipse “emergency”

“Emergency” in law must remain narrow: CCF

NIAGARA REGION – The Canadian Constitution Foundation (the “CCF”) filed a notice of application for judicial review in Ontario’s Divisional Court on Thursday seeking an order quashing the unlawful declaration of a State of Emergency issued by Niagara Region ahead of Monday’s solar eclipse. The CCF has brought this application as a public interest litigant along with Julian Renaud, a lawyer representing the CCF and who lives in Niagara Region.

CLICK HERE to read the Notice of Application for Judicial Review.

The CCF is deeply concerned about the proliferation of declarations of emergency in situations where no genuine emergencies exist. The CCF is calling on Ontario Premier Doug Ford to exercise his powers to end the emergency declared by the Region immediately.

On March 28, Niagara Regional Chair Jim Bradley said the region was entering a State of Emergency under the Emergency Management and Civil Protection Act (EMCPA). This allows the local municipality to make new laws through decree.

Bradley said the declaration was made “out of an abundance of caution.” Niagara Falls will be in the solar eclipse’s path of totality, and is therefore expecting a record-breaking number of visitors who may cause traffic jams and other minor inconveniences.

The declaration is unlawful because the situation does not meet the statutory definition of “emergency” under section 1 of the EMCPA. “Emergency” is defined in the statute as a “situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise.”

The definition of “emergency” in law must remain narrow because states of emergency are often used to limit property rights and infringe on civil liberties such as freedom of assembly and freedom of association. For example, the EMCPA contemplates orders by cabinet prohibiting travel to specified areas, closing businesses, appropriating the use of property, destroying property, using “any goods,” and taking “such other actions” as Cabinet considers necessary.

In February 2022, regulations made under a federal Emergencies Act allowed the government to freeze bank accounts without warrants and to ban certain protests. In January 2024, Federal Court of Canada Justice Richard Mosley issue a decision agreeing with the CCF that that invocation of the Act was unlawful and the measures made under it were unconstitutional.

CCF Litigation Director Christine Van Geyn urged concerned Canadians to email Premier Doug Ford and request that he revoke the emergency. He can be reached at [email protected].

“If this goes unchecked, it is a virtual guarantee that activists will argue that various social issues like homelessness and climate change also constitute states of emergency,” Van Geyn warned.

“While these are vexing problems, they shouldn’t be used to give powers to governments extraordinary powers to trample on our rights.”

CCF Executive Director Joanna Baron said she is hopeful that Premier Ford will step in.

“History has shown that emergency declarations pose a major risk to civil liberties,” Baron added. “They must be limited to true cases of emergencies, for example natural disasters.”

The CCF is represented in the judicial review application by Julian C. Renaud of Renaud Law.

“Emergency declarations have been used to justify the use of extraordinary legal powers since at least the days of the Roman Republic,” Renaud said. “Back then, the Senate could declare an emergency and give extraordinary powers to a single person. That person was called a ‘dictator.’”

“Emergencies should only be declared in dire cases involving a danger of major proportions, and even then, only in areas directly affected by that danger and for as little time as necessary to resolve it,” Renaud added. “That is why we have taken this matter to Court; we are asking the Court to clarify the limits of municipal power in order to protect our civil liberties and the rule of law.”