jason kenney alberta premier
Alberta premier Jason Kenney, has attracted a great deal of media attention by promising a court challenge against the Liberal government's imposition of the Emergencies Act.

Kenney said his province might also intervene in other challenges before the courts.

The Alberta premier has described the Emergencies Act as an "unnecessary and disproportionate measure that can violate civil liberties, invades provincial jurisdiction, and creates a very dangerous precedent for the future".

There are many Canadians who agree with him, including some on the left who are appalled by the Ottawa mob's behaviour.

Former NDP MP Svend Robinson insisted that introducing this legislation sets a "very dangerous precedent". The Communist Party of Canada agrees with Kenney that existing laws could have been used to disperse demonstrators.

But there are no guarantees that court challenges by Kenney, the Canadian Civil Liberties Association, or anyone else against the federal government's response will succeed.

In a 2021 Supreme Court of Canada ruling involving a national carbon tax, a majority of justices found that the Trudeau government's Greenhouse Gas Pollution Pricing Act was constitutional even though it appeared to intrude into provincial jurisdiction.

Kenney's government was on the losing side in that case. It centered around the legal doctrine called "national concern".

Supreme Court mindset revealed in carbon-tax case

It's worth noting that issues of national concern relate to permanent jurisdiction whereas a state of national emergency is a short-term measure.

Yet both are covered by the same peace, order, and good government clause of the Constitution Act, 1867. And the way the court addressed the national-concern issue on greenhouse gases offers a glimpse into the Supreme Court of Canada's mindset.

Writing for the majority in that case, Chief Justice Richard Wagner pointed out that global warming caused harm beyond any individual provinces' boundaries.

As a result, greenhouse gas emissions are indeed a matter of national concern under the "peace, order and good government" clause of Canada's constitution.

The ruling identified a three-step legal test for the federal government to assert national jurisdiction over areas of provincial authority.

1. The federal government must adduce evidence to meet the legal standard of national concern.

2. It must pass a second test for "singleness, distinctiveness, and indivisibility".

3. The third threshold is "scale of impact". There must be "grave extraprovincial consequences" resulting from the failure of a province to take action.

Wagner concluded that climate change is an "inherently global problem" that neither Canada nor any one province acting alone can wholly address.

Now, let's move on to the Emergencies Act.

Will lawyers for the federal government argue in court that the rise of right-wing populism and climate-change-denying authoritarian rule within so-called democracies are also inherently global problems that neither Canada nor any one province alone can wholly address?

At the very least, federal government lawyers will have no difficulty adducing evidence demonstrating that the rebellion over vaccine mandates would easily meet a legal standard of national concern, given attempts to block borders in four provinces. The scale of impact clearly had grave extraprovincial consequences, given the effect on the national economy.

Prof says it's a slam-dunk loss for Kenney

Wagner's ruling quoted a 1988 Supreme Court of Canada decision, R v. Crown Zellerbach Canada Ltd., which determined that matters relating to ocean pollution were solely within the jurisdiction of the federal government.

In that ruling, Justice Gerald Le Dain pointed out that the doctrine of national concern was "separate and distinct from the national emergency doctrine of the peace, order and good government power". It's worth repeating: that's because the national emergency doctrine provides a constitutional basis for legislation of a temporary nature.

"The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern," Le Dain wrote.

"For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution," he added.

Le Dain wrote that in determining the singleness, distinctiveness and indivisibility — distinguishing it from matters of provincial concern — it's "relevant to consider what would be the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter".

We saw what happened when one province failed to deal with the occupation of downtown Ottawa and several provinces took their sweet time in addressing the shutdown of borders.

A University of Ottawa professor of law and medicine, Amir Attaran, has no doubt that the Supreme Court of Canada will dismiss any legal challenges to the imposition of the Emergencies Act.

He pointed out over Twitter that the Supreme Court of Canada found that "mere inflation" was a national emergency in 1976 when it upheld the Anti-Inflation Act.

That ruling on a reference to the court found that a simple White Paper presented by the minister of finance was sufficient justification for declaring the existence of a national emergency.

"So as Parliament enters its last day of debate, I say this to MPs: don't waste time nitpicking the fine words of the Emergencies Act, and ignore the legally ignorant BQ [Bloc Québécois] and CPC [Conservative Party of Canada," Attaran wrote.

"The present emergency WILL be legally upheld in court — no doubt in my mind," he added. "And yes, I am aware the Emergencies Act has language that did not exist in the 1976 Anti-Inflation Reference. But the Act will be given a purposive interpretation, and any ambiguity will be resolved to align with the Constitution."

Comment: "Overthrow the government," LOL! A bunch of truckers were attempting a coup with hot tubs, bouncy castles, BBQs and dance parties, apparently. Official demands never went beyond ending the mandates. That's not 'overthrowing the government.'

Comment: 'Menaced by truckers.' This guy is a real piece of work. There's a truck parked beside the court. How menacing.

As an aside, Attaran has also called on the Canadian Radio-television Telecommunications Commission to revoke Fox News's cable access across Canada for encouraging the overthrow of the federal government.

In the tweet below, Attaran compared Fox News to the Rwandan broadcaster Radio Télévision Libre des Mille Collines, whose inflammatory coverage in 1994 led to genocidal attacks against the Tutsi people.