When Extraordinary Powers Meet Ordinary Scrutiny
(. . . the way a man squints at the horizon when he already knows what’s coming)
There’s a particular sound Canadian democracy makes when a court hands down a ruling on government overreach. It’s not a bang, not a crash, not even a polite throat‑clearing. It’s more like the soft thud of a three‑ring binder closing after a long meeting in which everyone pretended they didn’t already know the conclusion.
That’s the sound we heard again when the Federal Court of Appeal upheld Justice Mosley’s earlier finding that the federal government’s invocation of the Emergencies Act was, in the court’s restrained legal phrasing, “not justified.” In the language of ordinary people, that translates roughly to: You can’t just do that because you feel like it.
Enter Eva Chipiuk, the lawyer who has been saying precisely that for years, only with more footnotes and fewer opportunities to be escorted out of committee rooms. Chipiuk has been one of the few voices insisting that the Emergencies Act has a threshold, and that threshold is not “the Cabinet wore blinders and the coffee machine was broken.”
The courts have now agreed. Twice. Four judges, if you’re keeping score at home — which, given the state of public safety discourse in this country, you probably should.
The Threshold That Wasn’t There
The Emergencies Act is not a Collectors 1956 Mercedes 300 you take out on sunny days to feel truly complete, and on top of the world. It’s not a “break glass in case of political inconvenience” ejection seat for rude interruptions either. It’s a last‑resort martial law instrument designed for situations where national security is genuinely in peril. It's not used metaphorically, or emotionally, or in the sense of “things are getting messy downtown in Ottawa, where I happen to live,” but in the sense of actual, statutory danger.
The courts found that the federal Cabinet did not have reasonable grounds to believe any such a threat existed. Not “maybe,” not “arguably,” not “in the eye of the beholder.” They said the legal threshold was not met. Period. This is the part where, in a healthy democracy, the government nods, accepts the ruling, and says something like: “We respect the court’s decision and will reflect on how we exercised our powers.” Some form of restorative justice would be too much to ask. Wasn't it enough the numbskull was forced to resign?
Instead, the government spent years appealing the ruling — a sort of judicial long‑distance marathon, except the finish line kept moving and the public was footing the bill for more than Gatorade.
Public Safety, But Make It Bureaucratic
If you strip away the political varnish, this is a public‑safety story at its core. Emergency powers exist to protect the public, not to protect an overreaching authoritarian government from embarrassment when the powers are examined. When those powers are used improperly, and the legal minds of the nation are finished examining the rupture in responsible government, the public is the one bearing all the risk — not from protesters, but from precedent.
Because once you normalize extraordinary powers, they stop being extraordinary. They become administrative options. And administrative options have a way of being used again, and again, and again, until no one remembers what the original threshold was supposed to be. Lawyer Chipiuk’s argument — now reinforced by the courts — is that the threshold for deployment of those powers is a serious matter. It matters because public safety is not improved by governments improvising definitions of “threat.” It matters because the rule of law is not mood music, and a pleasant conversation with the Prime Minister about tampons in men's bathrooms. And it matters because emergency powers need to be contained to emergencies only.
Leadership, Accountability, and the Global Lecture Circuit
A leader invokes emergency powers unlawfully, refuses to acknowledge the error, appeals the ruling, loses the appeal, and then continues to present himself internationally as a defender of democratic norms. It’s the kind of irony that would feel too on‑the‑nose in fiction. Editors would send it back with a note: Dial it down. No one will believe this.But here we are. Chipiuk’s point — and it’s a fair one — is that leadership requires accountability. Not a performance art, or a silk suit in front of the camera, and not the “lessons were learned.” Someone has to say: “We did this wrong.” Instead, the government doubled down, tripled down, and then tried to run out the clock.
Public safety is not served by leaders who treat emergency powers as a political convenience. Surely this is understood. Nor is it served by leaders who refuse to acknowledge judicial findings that contradict their narratives. And it is certainly not served by a spectacle of a government insisting it was right long after the courts have said quite the contrary, on repeat.
The Quiet Importance of Saying No
The courts did something important. They said “no.” Not loudly or theatrically but firmly. And in a democracy, that “no” is one of the most important public‑safety mechanisms we have. Chipiuk has been arguing for years that the Emergencies Act must remain a last resort. The courts have now agreed. Twice. That’s not ideology; that’s institutional memory doing its job.
And if the government doesn’t want to hear it, well — that’s why courts exist. To remind leaders that extraordinary powers require extraordinary justification, not extraordinary spin.
In the end, this isn’t a story about protests. It’s a story about thresholds, accountability, and the quiet, stubborn resilience of the rule of law. And if that sounds like sarcasm, that’s only because this government's approach to reality keeps writing it that way.
A McColl Magazine Public Safety Column
