Volume 36 (December 2, 2022)

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Okay. Thank you very much, Commissioner. Bonjour à toutes et à tous, collègues canadiens et canadiennes. Nous avons aujourd’hui six experts avec nous couvrant le droit constitutionnel, l’appareil gouvernemental et les pouvoirs d’urgence au Canada et dans une perspective comparative. Je m’appelle Nomi Claire Lazar, professeure titulaire à l’Université d’Ottawa, membre du Conseil de recherche, et aujourd’hui, modérateur. And joining us are: Mr. Ward Elcock, former Director of CSIS and former Deputy Minister of National Defence; Professor Hoi Kong, who is Rt. Hon. Beverley McLachlin Professor in Constitutional Law at University of British Columbia; Mr. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General of Canada, as well as former Deputy Minister of Health and Foreign Affairs, and Member of the Order of Canada; Professor Victor V. Ramraj, who is Professor of Law at the University of Victoria; and joining us online we have Karin Loevy -- Professor Karin Loevy, who’s head of New York University’s JSD programme and a researcher in the Institute for International Law and Justice; and Professor Kim Lane Scheppele, who is Laurance S. Rockefeller Professor at Princeton University School of Public and International Affairs, and the University Center for Human Values. Thank you all for your assistance with the Commission’s important work. Since laws general rules are designed for the general case, exceptional events will, from time to time, call on governments to act in exceptional ways. Emergency powers to confront such situations are as old as constitutional government and found in every jurisdiction. Codified emergency powers, like those contained in Canada’s Emergencies Act, bring exceptional measures under the rule of law. Our panel’s task is to raise questions around the Emergencies Act’s threshold, powers, and accountability mechanisms, and as we do so, it’s wise to keep in mind the caveat that humility and caution should inform amendment to the Act. Changes to any legislation, especially when reactive, can have unintended consequences, particularly where that legislation specifically applies to inherently unpredictable occurrences. There’s no getting emergency powers just right because a threshold flexible enough to deal with some future event may invite abuse in some other future occurrence or circumstance. So any threshold that the Commissioner may propose, and Parliament may debate, may be both too high and to low for what the future holds. This necessary ambiguity makes formal legal checks and balances critical, but we must also bear in mind that courts across the world tend to accord governments wide scope in an emergency, finding that decisions on emergency are political and beyond their scope. This makes is all the more critical that emergency legislation also engineer informal constraints on power which intertwine with legal constraints, advance incentives and disincentives to promote due reflection and responsible action. So the formal constrains under the current Act includes references to the Charter, the International Covenant on Civil and Political Rights, along with the requirement that executive actions taken urgently gain legislative approval after the fact. Informal constraints include the necessity for publicity and for a Commission such as this one. We now have an opportunity to look at ambiguities and the threshold and the accountability mechanisms in the Emergencies Act to consider what worked well and what could be improved should this legislation be needed again in the future. Cette conversation est importante, car s’il n’y a pas de solution parfaite, il existe certaines des approches meilleures et pires. Alors que nous entamons notre première heure avec des questions sur la CEA pour déclarer une urgence d’ordre public, j’invite le public à se référer aux articles 3 et 16 de la Loi pour référence, au besoin, car la CEA est assez complexe. Un lien est disponible sur le site web de la Commission. So we’ll start off with Victor.

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Victor V. Ramraj, Prof. (Law – University of Victoria)

Merci, Nomi. Bonjour, monsieur le commissaire. Je m’appelle Victor Ramraj et je suis professeur de droit à l'Université de Victoria. At the end of this full week of roundtables and at the end of this Commission, I thought it might be helpful for me to step back a little bit and situate the Emergencies Act in its comparative context. I have three points, one on the difference between constitutional and statutory emergency powers; two, briefly, on Article 4 of the International Covenant on Civil and Political Rights, the ICCPR; and third on the question of interjurisdictional coordination, which you would have heard about at length yesterday. On that note, I’m afraid although I did have a chance to review the transcripts of earlier sessions this week, I was on the plane yesterday, so I missed reviewing that transcript. So apologies if there’s some overlap. My first point is this; Canada’s Emergency Act is distinctive in being a statutory rather than a constitutionally entrenched emergency powers regime. In many countries around the world, emergency powers are constitutionally entrenched, and emergencies are declared and governed directly by the constitutional regime. These constitutions, on the French model, typically involve and provide for the derogation from or suspension of constitutional rights and set out limits on that derogation or suspension. In the Canadian context, the Emergencies Act is not constitutionally entrenched. It makes no provision for limitation of or derogation from constitutional rights and remains fully subject to the Charter. This is a critical feature in Canada’s emergency powers regime. It means that the Act remains subject to the Charter and its core principles, including the principle of proportionality derived from section 1. Second, the need for emergency powers and the principle of proportionality itself are recognized in international law under such instruments as Article 4 of the International Covenant on Civil and Political Rights. Article 4 recognizes that there will be exceptional circumstances when states require extraordinary powers, but it also sets limits on those powers, particularly on the extent to which states can derogate from rights, if they can at all. Some rights, such as the right to life, the right to be free from torture, a prohibition on slavery and others; including, I should add, a prohibition on cruel, inhuman, and degrading treatment are completely prohibited and they are known as non-derogable rights. Other rights can be derogated from or limited only, in the wording of the ICCPR, “To the extent strictly required by the exigencies of the situation,” provided that they are consistent with international law and do not involve discrimination. And the principles set out in international law resonate with the principle of proportionality and minimal impairment that have been elaborated on in Charter jurisprudence. My third point concerns the question of interjurisdictional coordination. There are, of course, serious questions as to whether the categories in the Emergencies Act needs to be updated to reflect the reality of 21st Century threats, notably cyberattacks and the sorts of threats to critical infrastructure that were highlighted by other experts this week. I won’t comment on those issues, nor will I speak on the factual issues before the Commission; however, a key question common to many federal states is whether, in the face of a national emergency, the central or federal government has the tools it needs to coordinate an effective interjurisdictional response. In Canada that response might involve four levels of government; federal, provincial, municipal, and First Nations, as well as, potentially, international governments and agencies. A comparative survey of Westminster-style constitutions shows us, at one extreme, that some central governments have the power in an emergency to suspend the operation of provincial or state governments entirely, and here, with the assistance -- or in discussion with my PhD student, South Asian constitutions speak of constitutional machinery failure, a Colonial-inspired term, and this -- the provisions of these constitutions allow the central or state government to suspend the operations of states within the union. This is, of course a deeply contentious tool and a political tinderbox. On the other hand, when confronted with some national emergencies, for example, widescale political violence, a 9/11-style attack, or a climate disaster, a high degree of coordination may be needed on an urgent basis. In this respect, the Emergencies Act is a relatively weak and deferential instrument. It acknowledges the possibility of a national emergency without providing the means to coordinate effectively across multiple levels of government. It does require consultation, but consultation is not coordination. Of course, any centralized response must also be subject to effective accountability mechanisms, which we’ll come to later in the session, but a genuine national emergency will require an effective coordinated response, as well as an effective and appropriate accountability mechanism. I’ll have more to say on this point later, but let me stop here for now and yield the floor to my colleagues.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Hoi?

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Hoi Kong, Prof. (Law – University of British Columbia)

Thank you so much.

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Hoi Kong, Prof. (Law – University of British Columbia)

So Professor -- when Professor Lazar introduced the panel today, she mentioned that it’s really difficult to get text right around the emergencies; there’s a certain measure of necessary ambiguity. So I would like to present on is -- and to think about, is how to avoid controversy that’s unnecessary, yeah? How can we draft the text to avoid interpretations that either give rise to controversy and contradiction, and avoid -- and ensure that the text is tied to the specifics of the emergency context? So let me start with this question of unnecessary contradiction. So the closing phrase of section 3, the definitional clause, is -- states that a national emergency is one, “that cannot be effectively dealt with under any other law of Canada.” Now, on its face you might think, okay, so if we had a province and the province could effectively act under its laws but decided not to, we wouldn’t have an emergency. Right? I mean that’s just sort of a plain reading of the laws of Canada -- the law of Canada; provincial laws are laws of Canada. But if you look at section 3(a), right, section 3(a) says that you only have a national emergency, if you have a situation that: “...is of such proportions or nature as to exceed the capacity or authority of a province to deal with it,...” Right? So that clause, section 3(a), rules out the interpretation that you could have a province who had the capacity under its laws but simply decided not to use it. That’s an example of avoidable controversy. Now, going forward I would suggest that when -- if the Act is amended Parliament avoid using terms of art such as “Law of Canada,” so -- and I’m indebted to this for this point to Professor Leah West, right, who notes that law of Canada, in the case -- 1989 case, Supreme Court case of Robert v. Canada, defined “Law of Canada” and limited it to the laws of Parliament. But as I say, I think it’s unwise to use terms of art that give rise to contradictions in interpretation just on a plain reading of the text. Second, on the question of ensuring that language is tied to the specific context of emergencies. So section 16 of the Emergencies Act, in its definitions of public order emergencies, refers to section 2 of the Canadian Security Intelligence Service Act, right; it’s an incorporation by reference. And so the -- what is understood to be a threat to security of Canada for the purposes of the Emergencies Act derives its definition from another statute. Now, incorporation by reference is, of course, a common drafting technique, but I think it gives rise to potential problems in this context. As Professor Lazar noted, emergencies are specific, they’re exceptional. So if you use the language from another statutory regime, it is reasonable to think that the language should take its meaning from that context, yeah? Now, if the courts were to review Executive action, as Professor Lazar noted, they will typically defer to the interpretations of the Executive. But I think we can avoid this necessity of recourse to the deference of the judiciary in the interpretation of the statute, and rather house all of the terms within the Emergencies Act to ensure that all language is relevant and specific to the context of emergencies, and again, to avoid unnecessary controversy. So as I say, emergencies, Emergencies Acts, legislation about emergencies is necessarily controversial. It’s -- the language is going to be necessarily ambiguous in certain respects. What I suggest in these brief moments, in this brief presentation, is that there are ways to avoid unnecessary controversy. And I turn the floor over to my colleagues.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Hoi. Morris?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Thanks. So this actually, I think, follows quite well. There’s been lots of discussion about whether the government’s declaration of an emergency met the threshold of threats to the security of Canada, and I don’t intend to go over that ground; it’s been ploughed quite a lot. I did, however, want to say a word about the other part of the threshold that has to be met, and that is, the public order -- that the public order emergency is so serious as to be a national emergency; and, in particular, I wanted to focus on the requirement that the matter can’t be dealt with effectively under any other law of Canada. And, like Hoi, I am indebted to Leah West also for her explanation of the term, “Laws of Canada,” and I agree with her interpretation that it refers to federal statute law or federal common law. So how is this requirement to be interpreted? And I can think of three possible scenarios. First one, most clearly, is that there may, in fact, be no other law of Canada that even, you know, comes close to addressing the emergency situation. Alternatively, it may be that there are laws that exist, but there are reasons for not resorting to them. For example, there may be laws in place, but there are operational barriers to the effective deployment of the law. For example, if there is inadequate enforcement capacity, or if there are procedural requirements, which couldn’t be fulfilled in a timely way. It may also be that there are laws in place, that may, in the view of the government, be more harmful to individual rights or to social cohesion than the invocation of a temporary emergency. And in the questions we got, the example that was given was the possibility of resorting to the National Defence Act use of a civil power, and the government did not do that. In fact, I think there was some testimony, maybe from the National Security Advisor who said something to the effect of, you know, doing that would just inflame the situation. So with respect to that example, there’s a question as to whether the concept of effectiveness captures this reason for not resorting to bringing in the military. Maybe some consideration should be given to a different, or additional criterion to be added to section 3 that might take into account the government's judgment on the appropriateness of using a law that it deems excessive in the circumstances. You start to get into proportionality and minimum impairment analysis. And one of the things that was distributed to us was a paper that Professor Lazar did for the Commission setting out some examples of what the government should consider to make the reasonable belief that the emergency measures are necessary. And I'll mention two that are relevant to this discussion. The first is that the measure taken at the practical or technical capacity to bring about the outcome, and the other is that the government will not just aim to resolve the situation, but to do so in a normatively appropriate way. So the government might wish to resolve the situation -- and here I'm using Professor Lazar's words -- either quickly, or safely, or fairly, or cautiously, or efficiently, or decisively, or expeditiously, or cost effectively. But I think the same criteria could be applied to determine whether other laws of Canada are not effective or appropriate. They may be available but would either not have the technical or practical capacity to bring about the outcome, or they could not do it quickly, safely, fairly, et cetera. The government's required to believe on reasonable grounds that a public order emergency exists and necessitates the taking of special temporary measures for dealing with it. That judgment is subject to judicial review by the courts and subject to review by Parliament and by the inquiry that's established after the emergency is over. All three of those accountability mechanisms should require the government to clearly explain whether were other laws that, on their face, could have been used and why they were rejected. And the first opportunity to provide reasons for why other laws of Canada would not have been effective is the explanation, and the explanation for issuing the declaration that the government is required to provide to Parliament under section 58(1). And this provides a basis for further exploration of these issues by Parliament in its supervisory role under part 6 of the Act and would also be able to be scrutinized by media and by civil society actors who may be able to feed into the Parliamentary process. And perhaps most importantly, the government's explanation on the ineffectiveness or inappropriateness of other laws should be scrutinized in depth by the ex-post inquiry established under section 63. I'll stop there. Thank you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Morris. We're now going to turn to Kim, who's joining us online.

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Wonderful. Thank you, and I'm very honoured to be here. Kim Scheppele from Princeton University, and I'm here, I suppose, because I study emergencies in comparative perspective, and also because some years ago I wrote a parallel history of states of emergency in the U.S. and Canada. What's striking when I wrote that history was how similar the U.S. and Canada were up until the point of the October crisis in Canada, after which time, of course, Canada enacted both the Charters and the Emergencies Act and had not until this year declared an emergency since that time, while the U.S. went off on a different path of regulating emergencies. And in the United States now, there is almost always an emergency somewhere in the country almost every day, so the U.S. has normalized emergencies and Canada has made them very rare. Now when you look at emergencies in comparative perspective, as Victor Ramraj said, many constitutional democracies have taken the route of putting into the Constitution itself constitutional emergency powers and permissible derogations from rights. But many of those constitutional provisions do exactly what the Emergencies Act does in Canada, which is to try to define different types of emergencies, primarily to separate the non-political ones, the ones that have to do with natural disasters, and even pandemics and so on, from the much more politically tinged ones like the public emergency -- public order emergency in Canada. They also tend to distinguish the kinds of emergencies where civilians will remain in control and where the response is primarily civilian from war-like measures where the military may be involved. So in this regard, Canada's Emergencies Act is very typical. But what we see from looking at how these other Emergencies Acts in other countries have been used is that almost always one of those categories turns into the default category when you can't figure out where else to lodge an emergency when it seems to people that something should be done. And I think that's where we are with the public order emergency in Canada where, as has been already mentioned, there's a fairly broad scope to this emergency power, and some of the crucial definitions are not in this Act itself but in other Acts that don't contemplate that they will be used always in the time of an emergency. So let me suggest a couple things that I think we can learn from looking in comparative perspective at emergencies laws. Excuse me. So almost all, again, in Canada and elsewhere, have assumed that it's a good thing to have a starting point and an ending point, that there's a point when an emergency starts and there's a point when an emergency ends. Bracketed in that period are some potentially legitimate exceptions to the normal groups that would otherwise be in operation. And then at the end of this period, there has to be some kind of oversight and control mechanism, and the Emergencies Act has all of those things. But when I'm -- I'm sometimes a law professor and sometimes a sociologist. And in my studies of emergencies as a sociologist -- excuse me -- one of the things I've discovered is that emergencies in real life tend not to have the shape of the laws that regulate them. The laws of regulating emergencies are typically designed for situations like, for example, the 9/11 attack in the United States where something comes out of the blue, surprises everybody, and requires some kind of instant firm response. And then there's be some moment when that instant firm response ends. That's how the laws are structured. But many things that develop into emergencies, including in fact the one before this Commission of inquiry, have a very different shape. You can see them coming from a long way off. They start small and they grow. They may spread in the course of waiting for an emergency regulation to be declared. And so what this Emergencies Act requires is that the emergency get to a certain level of seriousness and a certain level of national impact before it can be used. And in the meantime, there seem to be inadequate powers for dealing with the budding threat. So here's the dilemma. If you have an emergencies regime that requires a starting point and a stopping point, it's almost always the case that these budding emergencies or these bubbling emergencies will have to get pretty bad before the emergency powers can be used. And wouldn't it make sense to head these things off before they required emergency powers? Okay, now, it certainly -- you know, how would that be done? Well, I think in this -- in the Emergencies Act, it's done through saying that perhaps other laws of Canada could be invoked instead. But as was just mentioned by my two former colleagues, this is now a term of art that means federal law. And in a country like Canada, you know, as in the U.S., it may be that you have state or provincial level issues that are not handled by federal law until they get to be too big. So in the course of thinking about, you know how the Emergencies Act intersects with actually existing emergencies, I'm wondering whether it might make sense at this stage to think about two things. One is whether there might be something that we would think of as sort of a pre-emergency stage, where some steps can be taken to head off an emergency before it gets to the point where it really is very damaging, not through extraordinary measures, but through the use of ordinary measures, and then that suggest, because many of these things and particularly the one before the Commission now, starts where it might be possible for provincial action to ensure that, you know, a protest demonstration stays within constitutional boundaries, and that that might council some kind of framework for the coordination of provincial and federal powers to ensure not just that public order is restored, but also to ensure that Charter rights are actually also guaranteed. And this brings me to my last point, which is that the Emergencies Act and the Charter in some ways walk hand in hand. As Victor Ramraj said, that Canada's unusual in having the Charter regulated by statute that is completely under the jurisdiction of the Charter, so in some sense, no derogations are permitted. But what's striking to me about the Emergencies Act is that in the course of deciding whether to trigger an emergency, all that is there as part of the threshold is an assessment of the danger involved and not an assessment of the rights that might be infringed by declaring an emergency The fact that the Emergencies Act will ultimately be assessed under the Charter, by the courts or otherwise, suggests that perhaps proportionality analysis, and thinking about the impact on riots, should be built back into the Charter as an exercise that the Executive should go through before actually deciding whether or not to trigger an emergency. Because, of course, in the end the Charter will apply, but the Charter does not require overtly on its face that the Executive actually engage in proportionality analysis. What I assume is that because the Emergencies Act was enacted around the same time as the Charter, it was enacted before the Supreme Court of Canada developed the robust proportionality jurisprudence that it has now, and so it looks to me like the Emergencies Act is kind of a victim of the year in which in it was written, which is really before the Supreme Court of Canada had developed such a robust system for assessing impacts to riots. So if one of the purposes of the Commission is to think about how the Emergencies Act might be improved, I would suggest two things: One, is to think about what I call this pre-emergency stage, to ensure that Charter rights can be realised while at the same time tamping down the possibility that an emergency would have to be declared. And second of all, requiring that to trigger an emergency the Executive not only do but also make public a proportionality analysis that shows that the Executive has taken into account the impact of any emergency declaration on riots. And with that, I'll hand back to the committee, and thank you very much for the opportunity to discuss this with you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Kim. Karin?

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Karin Loevy, Prof. (Law – New York University)

Hi. Thank you. Do you hear me?

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Yes.

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Karin Loevy, Prof. (Law – New York University)

Thanks so much.

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Karin Loevy, Prof. (Law – New York University)

So I'm Karin Loevy. I'm talking to you from New York. I manage the Doctoral Program at the Law School NYU, and I do my research with the Institute of International Law and Justice. And I think I'll kind of follow Kim on some of her points, and especially my take will try to take us away from this notion in which we started this roundtable today of a necessary controversial, necessarily exception situation that we deal with in emergencies. So -- and I'm going to take a broad perspective because I'm not a Canadian. Again, I'm going to talk from a theoretical perspective and from a general perspective. So what I want to do in this -- my comments on the issue of threshold is to shed some light on the problem thresholds in emergency powers more generally, which is the problem of defining the concept of an emergency and defining and identifying a particular situation as an emergency. And my claim is that the language that the Emergencies Act uses to mark the threshold for an emergency declaration is misleading and unhelpful. It orients the focus of the decision-maker and the public to the unknown, the unmanageable, the borderline condition of incapacity, instead of what we really need in times of crisis, which is to focus on capacity, on the many different resources that a society has to confront threats, especially Canadian society. So the threshold of emergency has always been a point of anxiety for theorists of emergency powers and for petitioners of emergencies. This is because emergency is commonly understood in the literature as that which defies definition. Emergencies are defined by their exceptionality, by the fact that they raise occasions for the use of special exceptional power. Think about Carl Schmitt's famous or infamous definition of emergency as a threshold concept, a borderline concept. Emergencies for him is that which is not codified in the existing order, a situation that cannot be circumscribed factually, a case in which with the preconditions and the content of jurisdictional competence are necessarily unlimited. So ultimately, we know a real emergency is one which the Sovereign decides it is because the Sovereign can act against the law to declare the threat and how it should be solved. And this, unfortunately, is the way that many debates in our area express the problem of threshold. Even theorists who are less skeptical than Schmitt about liberal law and about liberal political institutions are influenced by this anxiety. And emergencies again and again are defined as extreme liminal events so that a threshold is placed at the very limit of capacity signifying the very limit of law, yet contained by law. The problem with this framing is that it encourages a politics of emergency governance that is focussed on incapacity and liminality, and that overshadows the real important questions of capacity that defining and identifying emergencies raise, not only questions of what is the threat but about who is capable of identifying threats; who holds the knowledge of the basis of what evidence; what are the processes, methods, standards for identification; what are the levels of consultation, levels of cooperation between agencies and across jurisdictions for determining threats in capacities, et cetera. Such questions that have been raised before the Commission in the last few weeks are sidelined when the emergency is assumed to be completely exceptional in this liminal way. And although Canada's 1985 Emergencies Act does not correspond to a Schmittian theory of emergencies, in fact it clearly reject it. Its language reproduces the anxiety of threshold in this way. So what is the emergency that the Act envisions? And we heard it before. So, sorry, I'll try to be brief. And again, we're talking about national emergency as defined in section 3, and which applies to all the different types of emergencies that can be declared according to the Act. So it is an urgent critical situation, temporary in nature, that seriously endangers lives, health, or safety of Canadians, and exceeds the capacity or authority of a province to deal with it, or threatens the ability of Government of Canada to preserve sovereignty, security, and territorial integrity of Canada, and that it cannot be effectively dealt with under any law of Canada. Now, this language, as others said before, envisions what I call a triple incapacity threshold. Incapacity on a provincial level or incapacity on a federal level, and legal incapacity. By that it seems to create a very high threshold for the declaration of emergencies; right? But a close reading of it shows that it's -- it replicates a Schmittian anxiety about the liminal case. It is oriented to the very extreme case in which competence is lost, and as soon as we accept that we pass this threshold, at the very moment of this extreme incapacity, it births or imagines an all-powerful Executive who can really take charge. This is an absurd framing. It is responsible for the endless arguments that I think the Commissioner heard in the evidence before him about whether there was really no other law or there was really no other capacity anywhere to be found. Of course there is law, of course there is capacity. It is the law and the capacity that we should be interested in if we want to serve the real purpose of emergency government, which should be, as we heard yesterday in the panel of jurisdiction, to avoid the exceptional extraordinary power, to carefully construct and reconstruct regularised, coordinated, multi-faceted, multi- jurisdictional capabilities. So this is my note on the threshold. Thank you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Karin. Ward?

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Hello, Mr. Commissioner. I am not -- while I am lawyer, I was a lawyer by education and early career, most of my career has been spent more than as an operator than as a lawyer. So what I would like to do is just make a few comments that perhaps close out some issues came up in the context of the previous remarks. One, the issue of -- I deal with it because it's one that has come up frequently in my career, and one I think is important to put in its proper place, and that is, was there ever an opportunity to use the military as a tool to deal with this? The military had been used in this country. The last time, in point of fact, was the Oka Crisis, when the military were called out, although that was a request by the Province under the doctrine of Aid to the Civil Power. And in that case, the military were successful in dealing with the issue, or at least permitting hiatus within which a solution could be negotiated. The reality is, it seems to me, that absent an armed insurrection, the military has no role in any of these kinds of events, and anybody who starts to talk about the use of the military I think is unwise and it would be highly improper for the military to be involved in anything, even if this particular event did rise to the level -- did meet the test within the definition of the CSIS Act that was imported into the Emergencies Act. I think I alluded to, in earlier remarks, that in my view there is -- it is open to question whether in fact the events did or did not meet the test that was imported from the CSIS Act. I’m not sure that the view of CSIS necessarily closes that issue one way or the other. I think CSIS operates within limitations, which it imposes on the interpretation of that section, which could lead it to a conclusion that the events did not, in their finality, rise to the level of the definition. But it’s not clear to me that that means that it did not, in point of fact, on the facts, rise to the level of that definition once you get to the final point when the Emergency Act is declared and the City of Ottawa was facing considerable difficulties in trying to resolve the convoy protests and there were still threats of potential convoy protests in other places across the country, particularly at border points. The idea of meeting an emergency before it gets to the point of being an emergency is certainly an attractive one, but in some sense, in the context of Canadian history, political history, constitutional roles, division of constitutional roles, it is almost impossible to foresee a situation in which the Federal Government can rely on, or you could create a mechanism which would allow the Federal Government -- the Provinces and the Federal Government to resolve these issues before they get to a really serious point. One would like to hope that they would, but it would not be the first time in this country, and perhaps even in this case, that a Province refuses, in point of fact, to act to resolve an issue at an earlier stage, when in fact it could have been resolved, which ultimately leaves the Federal Government with the only option of actually taking some action. Whether that happened in this case is for you to decide. Not for me. I’ve not seen all of the testimony and all of the documents. But it does seem to me while it would be attractive to try and deal with emergencies before they happen, that’s a role for the provinces and having -- trying to find a mechanism that would allow that to happen on a routine basis strikes me as, given our history and constitutional divisions of powers, seems to me an impractical goal. So ultimately the -- it seems to me the responsibility of dealing with an emergency must fall to the Federal Government, whether or not the definitions in this case and whether or not the legislation is sufficient to deal with the kinds of emergencies that lie ahead of us. My view is that it probably is not and that it requires some additional thought. In particular, in terms of the definition -- the threshold definition, but also in terms of the powers that would be required to deal with emergencies in the future, which were beyond what were envisaged in the Emergencies Act when it was done back in the early 90’s/late 80’s.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. I wondered if any of you might like to address the question of economic emergencies? So this is something which came up in the course of the testimony. And certainly our comparative emergency scholars will know that economic emergencies are certainly conceived of and have been declared and responded to in other jurisdictions. So I wanted to ask whether any of you have any thoughts on this question of economic emergency, whether it fits under the existing framework somewhere, whether it’s something that ought to be contemplated in some future version of the Emergencies Act? Are there any thoughts or reflections there? Morris?

Volume 36 (December 2, 2022), page 31 36-031-15

Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Yeah, I’ll start on this. Thank you very much. So I saw a bit of Wednesday’s panel and -- that Ward was on. And I know that there were some mixed views in terms of whether the definition of public order emergency should be amended to address economic security threats and also threats to critical infrastructure, which I think are related. And I have a couple of thoughts on policy questions that should be considered before we kind of rush into doing that. And I guess the first order of question for me is whether these are best addressed through emergency legislation or by enacting new legislation. The U.K., for example, now has, in the House of Lords, the -- it’s Public Order Bill, I think Leah West mentioned this the other day. That’s a law that adds significant new police powers and new offences in relation to obstructing major transport works and interference with key national infrastructure. And there I think are several aspects to this question. It’s not clear to me that the Emergencies Act is always the worse option. You can ask questions like, “Which would be more effective?” “Which is least disruptive of the rights of citizens?” Legislation, of course, will go through a full deliberative process in Parliament that may provide a more robust opportunity for involvement by civil society actors and media, Parliamentary hearings. We’ve had some very good examples. For example, the anti-terrorism legislation in Canada, which was, some people would say, rushed, and was introduced into Parliament in October and was law by the end of December, notwithstanding that, there were hearings before the House of Commons Justice Committee over a course of about six weeks, where 80 witnesses were heard, and in the Senate, over the course of about five weeks, where 60 witnesses were heard. And those hearings actually resulted in significant changes to that law. So a legislative process can actually be -- and I would say that in that case, a lot of the commentary and a lot of the amendments were to scale down the scope of those powers that were provided and to take better account of civil liberties concerns about who would actually be swept into -- under that law. But that really depends. Kent Roach and Craig Forcese wrote a book on after the Harper Government enacted Bill C-51, this happened after a couple of events which took place in Canada in 2014 in Saint-Jean-sur-Richelieu where somebody was killed right here near Parliament Hill. And their critique of that legislation, in part, was like the Patriot Act in the U.S. in 2001, it was just ran through. So there may or may not be an opportunity for meaningful input if you’re looking at legislation. You know, what it also means to ask the question whether it’s better to amend the regular law of the country to create permanent new government powers, to normalize new powers. If you look, for example, at the law that Alberta passed, which I think is being challenged, the Alberta Defensive Critical Infrastructure Act, which has been criticized for being overbroad and unclear in its terms, it’s not an emergency law, it's part of the regular corpus of law in Alberta. Is that better? Or is it preferable to address these matters through the declaration of an emergency, which is temporary and subject to legal, Parliamentary, and Commission review? And as I was thinking about this, I went back to give Kent a little more credit, he and some of his colleagues at UofT law school were instrumental in 2001, within a couple of weeks after the legislation was tabled, in having put together a conference and then an instant book, which he then drove up and distributed, I think, to every member of Parliament, and I think it had an impact. There’s an interesting article in that volume by Professor David Dyzenhaus called, “The Permanence of the Temporary,” that deals exactly with this question as to which is worse; using an emergency act or changing the corpus of law on a permanent basis. I’ll stop there.

Volume 36 (December 2, 2022), page 31 36-031-28

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks very much. Victor?

Volume 36 (December 2, 2022), page 34 36-034-17

Victor V. Ramraj, Prof. (Law – University of Victoria)

Sure. Thanks, Nomi. Maybe like to try to tie together a couple of these points, the question of economic emergencies and Professor Scheppele’s idea of pre-emptive mechanisms to deal with emergencies. It seems to me that emergencies aren’t easily cabined. I think that Professor Scheppele said that emergencies don’t have the shape of the laws regulating them. I think in some ways, different kinds of emergencies often bleed into one another and it’s important, I think, for the Commission to acknowledge that this emergency takes place against the backdrop of a global public health emergency. And so sometimes you have other kinds of situations, public health emergency that leads to a public order emergency or an economic crisis that will lead to a public order emergency. So how, then, do we form institutions, create institutions that can pre-empt, in a coordinated way, the emergence of these more serious emergencies? So around the same time that this Commission has been doing its work, or slightly before, of course another commission, the Lancet Commission, which describes itself as an interdisciplinary initiative encompassing the health sciences, business, finance, and public policy. It’s a group of experts that were looking at the COVID-19 pandemic and how it emerged. And their conclusion was that -- if I can refer to it, that, “The staggering death toll is both a profound tragedy...” -- I’m quoting, “...and a massive global failure at multiple levels.” So I think it’s important to acknowledge that had the WHO had the -- worked as it was supposed to; had, for instance, Taiwan been able to signal that there was a virus that was emerging out of China, but because of its exclusion from the WHO there were issues; and had there been international coordination, intergovernmental coordination at that early point, we never would have had this emergency, right? So emergencies are often interconnected. So I’d like Professor Scheppele’s idea that we need standing institutions that have the ability to coordinate so that we can prevent the emergence of these kinds of situations in the first place.

Volume 36 (December 2, 2022), page 34 36-034-19

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks very much, Victor. Kim?

Volume 36 (December 2, 2022), page 36 36-036-02

Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes, thank you. So I think the question of economic emergency is quite a vexed one, and the reason is actually the opposite of what I identified as the problem with public order emergencies; and that is that an economic emergency may come on suddenly, which is why people want to use an emergency framework, but it’s extremely rare when a sudden intervention into an economy has an immediate effect, you know. So it’s not like clearing public protesters where you can do it in a day. You have to make an economic fix, and then it may take months before that economic fix works its way through an economy. So you have this opposite problem, right, which is you may have sudden onset but then the effects will have a long tail, so that deciding when to end it may be actually very difficult. So given that economic emergencies have this more systemic quality, it seems to me that those can be regulated more through ordinary government regulatory powers, rather than through an emergency framework, precisely because I think it’s extremely hard to know when an economic emergency ends, and then you have this problem of, you know, the bubbling happens after the emergency action is taken. So most emergency laws do not have economic emergency as a category; they have, more or less, the other categories the current Canadian Emergencies Act has. So I think most of the things -- if you walk through examples, most of the things that might count as an economic emergency can probably be regulated in other ways.

Volume 36 (December 2, 2022), page 36 36-036-04

Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

I just ask a question of clarification, sorry. When we talk about economic emergencies, are we talking about things like a global financial crisis, or are we talking about things like a blockade on the Ambassador Bridge that prevents supplies from going back and forth across the border and results in, you know, people losing their jobs, potentially the loss of confidence in the United States on Canada’s reliability as a trading partner? Because they’re very different.

Volume 36 (December 2, 2022), page 37 36-037-04

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Commissioner, do you want to...?

Volume 36 (December 2, 2022), page 37 36-037-14

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

And I guess that’s part of the issue with emergency legislation is that, you know, we can’t really say in advance; is the next thing going to be this, or going to be that? And so that’s our challenge. Kim, did you want to respond?

Volume 36 (December 2, 2022), page 37 36-037-25

Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yeah. So I think that actually what the Commissioner just said was very helpful, right, because the problem there is not that -- the problem didn’t originate in an economic crisis; the problem originated elsewhere, and the Emergencies Act has a system for handling that. If you have something like a global financial crisis where the problem sort of originates in the economy, as it were, then the kinds of measures that must be taken are really much more in the matter of state economic policy, which will need to be longer term than you imagine an emergency should last. So that’s precisely why I think economic consequences can be weighed in considering these other kinds of emergencies, but having an emergency just for economic reasons strikes me as being an unnecessary extension of emergency powers.

Volume 36 (December 2, 2022), page 38 36-038-02

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

That’s a great clarification. That sounds exactly right to me. So as we now move into our second hour, we’re going to turn our attention to questions of accountability, which of course are entwined with questions around the threshold. So accountability is a necessary condition for trust in representative government, it thus sits at the very heart of our political system. So in day-to-day governance, there are various layers of accountability; policies undergo public consultation, bills are debated through multiple readings, Parliamentary committees invite diverse perspectives and deliberate, and the press and the public scrutinize the process, courts review, and ultimately we hold elections. But emergencies challenge some of these usual mechanisms. Urgency necessitates speed and decisive action, shifting deliberation to after a decision has been taken, and earlier types of emergency powers had historically sidestepped checks and balances entirely. Often contested claims of secrecy exacerbate these conditions. Some parts of the Emergencies Act facilitate legal accountability, including the objective standard that the Governor-in-Council have reasonable grounds to believe emergency measures are necessary, but many provisions of the law, including this Commission, enable public accountability that includes but also goes beyond legality. Legality alone doesn’t determine the rightness of state action. Promise of public accountability is important in itself, but it also serves as an informal constraint on government action. Whatever government chooses to do, they know they will be held accountable, and there’s evidence that governments behave with greater caution when public scrutiny is inevitable. But how well that works depends in significant part on the good design of accountability mechanisms; they have to work in order to work. Our panellists will now consider how legal and public accountability provisions in the Act might be tightened for the future, mindful, in particular, of the challenges posed by government claims to secrecy. What are the appropriate functions, strengths, and limits of the Act’s current accountability mechanisms; what mechanisms might maximize openness with respect to classified information, Cabinet secrecy or solicitor/client privilege, all in the service of public accountability and public truest. So here we’re going to begin with Karin.

Volume 36 (December 2, 2022), page 38 36-038-17

Karin Loevy, Prof. (Law – New York University)

Thank you, Nomi. Thanks, so again, I'm going to be general in my comments. And in terms of accountability, I think that the Emergencies Act envisions a very rich environment of accountability mechanisms, institutional conditions for insurabilitym for account giving, for assumption of responsibility encompassing the obligation to report, explain, and be answerable for resulting consequences. And maybe if we used David Eisenhower's terminology, these could also be described as rule of law furniture, or assemblages of institutional structures that make legality possibly real even in emergencies. And I agree with Nomi that it's not only about legality, but it is an important aspect of accountability. But this setup of an expansive and a layered structure of accountability may seem like a moving target for those individuals who were affected. What will they be able to challenge? The declaration? The measures? The oversight process? And where, and in particular, when? How likely is it, for example, that a court will challenge the measures when an emergency declaration is in place? Will a court challenge the declaration of emergency when an inquiry is still taking place? Are each one of these mechanisms independent, or are they reliant on one another? What is the division of labour between them and when does one end and the other begins? Now I can't answer all these questions, of course, and I can't also provide policy recommendations, but I want to provide one general suggestion on how to understand the relationship between these mechanisms. And one way to understand the relation between mechanisms by connecting them to the problem of time in emergencies. So again, a general problem in emergency powers. So often emergencies are characterized by the problematic that we can call the problem of no time. Emergency is a sudden event that needs urgent response and there's no time for regular decision-making processes to take place, so we resort to exceptional behaviour, but only for a limited time. The problem of no time is solved by exceptional behaviour as long as it is limited in time. In the Emergencies Act, time is partly framed in this way. From the moment of the declaration, the Act envisions a kind of race towards its termination, and Kim described it before too. So government has seven sitting days to lay the declaration before Parliament. Parliament has to consider the motion on the next sitting day, and if it decides to revoke, the declaration immediately expires, if not, it will continue for up to 30 days unless it is renewed according to the Act. And until the emergency is over, the Parliamentary Review Committee is to report every 60 days at least, or within 3 days of revocation, continuation or expiration of the declaration. And the post-factum inquiry is established within 60 days, and it must conclude within 1 years. This accountability structure is aimed to limit the threat of exceptional urgent behaviour in time. During the emergency, it creates stopwatches for termination, and after the emergency, it limits the time it takes to recover from it. Finally, judicial review is not mentioned in the Act, not excluded, of course, but envisioned as outside the Act's accountability regime. Possibly because it is hard to tie it to the no time frame. But the problem of no time in emergency is quite artificial and formalistic. Most experts in this area know, and it's been repeated here too, that depicting emergencies as exceptional events is unrealistic. Emergency is not a linear process from an urgent crisis nor necessity to its solution. Instead, it moves in a circular and relational time from anticipation, to response, to recovery, which is already anticipating the next event. An obvious example is the mandate of the Commissioner's inquiry to assist the basis for the government's decision in February 2022, but also to review and suggest amendments to the regulatory framework that will be used in future emergencies. Another example is that of consultation. Why should the requirement of consultation with the provincial government in section 25 be limited to the stage of declaration, or continuation, or amendment of the declaration? Isn't consultation ---

Volume 36 (December 2, 2022), page 40 36-040-06

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Karin?

Volume 36 (December 2, 2022), page 42 36-042-24

Karin Loevy, Prof. (Law – New York University)

Yeah?

Volume 36 (December 2, 2022), page 42 36-042-25

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Karin, could I ask you to just slow down a little bit ---

Volume 36 (December 2, 2022), page 42 36-042-26

Karin Loevy, Prof. (Law – New York University)

Yeah, sorry.

Volume 36 (December 2, 2022), page 42 36-042-28

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

--- for the interpreters? Thank you.

Volume 36 (December 2, 2022), page 43 36-043-01

Karin Loevy, Prof. (Law – New York University)

So why should we limit consultation to -- with the provincial government in section 25 to the stage of declaration, or continuation, or amendment of the declaration? Isn't consultation an ongoing necessity when a province is affected both by an emergency and by federal government intervention? We want our accountability mechanisms to reflect a more fluid and relational timeline. That means that it doesn't make sense or much sense to think of each of the mechanisms as completely restricted to its own place on the timeline. It also means that we may want to think of an overarching, maybe stable, maybe ongoing, maybe permanent mechanism to coordinate between them, or to oversee them all. It doesn't mean that we need to flatten them out. There can still be different roads, different timeframes for each of them, but they should not behave as silos of accountability, especially not silos of the knowledge that is being created in these processes. And we heard yesterday in the round table of interjurisdiction responses why a modern multiagency and multijurisdictional governance structure for emergencies needs to be in place to facilitate ongoing reflexive and transparent coordination between the different relevant actors involved in identifying threats and responding and planning for future events. And I think this idea of an ongoing process of consultation rather than the anxiety of no time should also guide our interpretation of the relationship between different accountability mechanisms in the Act. Thank you.

Volume 36 (December 2, 2022), page 43 36-043-03

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Just a reminder to everyone to try to stick within your five minutes while also slowing down for the interpreters. So, Hoi, take it away.

Volume 36 (December 2, 2022), page 44 36-044-02

Hoi Kong, Prof. (Law – University of British Columbia)

Right. Thank you so much. So I'd like to address what I think of as two kinds of tensions around accountability. So the first, and it's been alluded to, is the kind of tension between consultation, effective consultation with those who are affected and time. The second tension that I'd like to think about, and again it's been alluded to, is about transparency with respect to the legal basis for a declaration of emergency and the interest in -- the interest of the Attorney General in solicitor/client privilege. So let's start with the first one. So as Karin just mentioned, under section 25, the parties that are envisaged to be consulted are the provinces, and of course, that makes all kinds of sense within our constitutional system. But I think that in many circumstances, cities are the places where emergencies happen. Their residents are the people who are the most affected. They may have the most knowledge about what is happening on the ground. They also have the greatest political incentives to be responsive. So I suggest that perhaps cities be brought into the consultation process. Now, of course, this gives rise to questions of time. Section 25(2) already envisages a situation in which the provinces cannot be consulted without unduly jeopardizing the effectiveness of the proposed action. Now I imagine that you could design a regime so that you could have a similar kind of exception for municipalities and for any other party. As my colleagues have said, accountability to the public, accountability to the affected governments is essential. And I think the simple fact that municipalities are not a part of our division of powers and do not have formal constitutional authority is not a good reason to exclude them from consultation. Second, the question of transparency and solicitor/client privilege. So I think one of the challenges of the Acts that we have in front of us is that it states a legal ground for action, or that is, there has to be a reasonable basis. And so -- and also under 17(2)(a) in the declaration, the Governor in Council has to concisely state the affairs constituting the emergency. Yeah? So the question is, how do we convey the legal basis upon which the Governor in Council acted without compromising solicitor/client privilege? I think we have a model of this already. We have Charter statements. Charter statements are not legal opinions. They are -- they give an understanding of what kinds of reasons would lead the Attorney General to think that there was a legal basis for action, in that case, for legislation. So in this instance, I think a sort of simple response to some of the concerns are bound to transparency and solicitor/client privilege would be to have within the requirements of the concise statement of the affairs constituting the emergency a requirement that a general understanding be conveyed to the public and to other political actors of the legal basis for the declaration of a state of emergency. So two general tensions: One tension between accountability and time. And as I say, I think municipalities are essential partners, and I think that the time issue can be addressed in the way that it has already been addressed under section 17, under section 25(2). Second, the issue of transparency around the legal basis and solicitor/client privilege. And once again, I think we have mechanisms within our existing system to ensure that kind of accountability. And with that, I turn the floor over to my colleagues.

Volume 36 (December 2, 2022), page 44 36-044-06

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Hoi. Kim?

Volume 36 (December 2, 2022), page 46 36-046-14

Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes, thank you. So I want to put the emphasis on this part of the discussion on backward-looking rather than forward-looking. One of the reasons for having accountability mechanisms is because you want the decision-makers, in the moment when they actually have to make a decision like this, to have like a little bird sitting on their shoulder saying, "one day someone who is not under this time pressure will look at what you've done." In other words, one of the big functions of accountability mechanisms is not just to hold someone accountable after the fact, but to allow the decision-makers to know ahead of time, in some ways, that their decisions will be reviewed in that way. If you have a situation, and emergencies are -- I think they're more predictable than Karin just said, but I think the legal framework assumes that they'll be some pace that could not be anticipated under normal rules, when that happens it's hard to specify in advance precisely how the power should be exercised. So the best you can do is to say, "after you're done with all of this we're going to look at every single thing you did to make sure that what you did was reasonable, rational, accountable, had a legal basis" and so on. So I think as we design or think about the accountability measures, a lot of the purpose of them is to have an effect on the decision-maker in the moment. That leads me to think that there's one other thing, although the Canadian Act is full of accountability measures, there is one kind of accountability measure that's not there that might be worth thinking about. And that is now that Canada has two emergencies, I'm thinking about the October Crisis and then this one, it might be an extremely useful thing to ensure that new governments in Canada are educated about how these emergencies went and what the aftermath looked like before they have to make the next decision. Which is to say if there's some kind of, you know, training program for incoming governments, or for, you know, sort of incoming -- you know, for the decision-makers that are going to eventually be in this position, it would be very helpful for them to know the history before they start to develop a new course. In fact, I think it's kind of a strange -- well, I thought it was actually a beneficial side effect of having your Prime Minister being precisely the one whose father had to deal with the last crisis. That probably made him wait and be more careful when he finally exercised the power, than might have been the case if you had a prime minister who hadn't grown up with the shadow of the October Crisis directly in their family. And that makes me think that perhaps knowing this history is something that may be very important for future prime ministers to have. Finally, let me just say one thing about what could happen during these accountability measures after the fact. The question is why we have them. And we worry about emergencies for two reasons: One is, of course, for their impact on rights, and this raises the question about what's the standard of assessment. And there's, of course, a judicial review mechanism in place for individual problems that arise out of these emergencies, but what I wonder is why, again, proportionality analysis isn't built into the assessments both in the -- at Parliament level and the Commission of Inquiry level. Again, this is going to be standard courts use, it's the standard for thinking how to be compatible with Charter rights, and it might be good to make explicit that this is one of the standards to be used. The second one is trickier because the one thing we worry about with emergencies is that they never really go away, which is that emergency powers seized in a crisis will be emergency powers that the Executive retains even when the emergency is over. So I think it's also very crucial to think about how a Commission of Inquiry can look not just in the moment but to look also at the aftermath to ask if emergencies shift the balance of powers over the long run. And with that I'll stop. Thank you much.

Volume 36 (December 2, 2022), page 46 36-046-16

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks, Kim. Victor?

Volume 36 (December 2, 2022), page 49 36-049-03

Victor V. Ramraj, Prof. (Law – University of Victoria)

I think it might be helpful to think of three dimensions of accountability. Accountability for what, to whom, and when? The answers to these questions, I suggest, depend on the nature of the power that's exercised, or not. Consider, for example, the declaration of an emergency. Here, we have at least two institutional forms of accountability, three if you include this Commission. The other two are accountability to Parliament, either through parliamentary debate to confirm or revoke the declaration; and accountability to various parliamentary committees. These forms of accountability are typically synchronise with the emergency itself. We also have accountability for the declaration through the courts, either in the course of an emergency, ideally, possibly on an expedited basis, or after the fact. If, however, our focus is not on the declaration of the emergency, but abuses or rights violations in the course of its implementation, we might look for accountability, either in the courts, or, depending on the source of the alleged abuse, in complaints mechanisms within, say, a police force, or in the case of security, intelligence, through the National Security and Intelligence Review Agency. But let me raise another aspect of accountability in times of crisis. When a crisis materialises, governments might be held accountable after the fact, either for overreacting to the crisis or failing to act to prevent or mitigate it. We can find examples of both kinds of accountability. In terms of overreacting, and I think Professor Kent Roach gave a really good catalogue of Commissions of Inquiry, the Ipperwash and Arar commissions mentioned by him are examples of government overreaction leading to tragic consequences. As for the failure to prevent or mitigate a crisis, the Air India Commission in Canada and the 9/11 Commission in the United States are apt examples. I have to say that after following the Commission's work, I'm still not immediately clear on what kind of accountability we're seeking at this Commission. Is it one or the other or both? Is it that the government overreacted by declaring the emergency and enforcing it as it did, or is it that the government did not do enough or did not have the appropriate tools to prevent or mitigate the emergency in the first place? The answer to this question matters because it determines the answer to the question accountability for what? If the government overreacted in declaring the emergency, the appropriate accountability mechanism might be tighter forms of parliamentary or judicial oversight, or tweaks in the way this Commission conducts or subsequent Commissions conduct their affairs. If, however, the problem is that the government to prevent or mitigate a crisis, or, as Professor Leah West suggested on Wednesday, that there was a failure of federalism, it's less clear to me what form accountability should take. Commissions of Inquiry can, of course, urge or recommend legal reforms, and I hope that this Commission might add its voice to those calling for more effective, and perhaps following Kim, pre-emptive interjurisdictional coordination.

Volume 36 (December 2, 2022), page 49 36-049-05

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you, Victor. Ward?

Volume 36 (December 2, 2022), page 51 36-051-06

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

On the issue of accountability, Commissioner, my view would be that, frankly, that the accountability structure, as it currently stands, for the most part, makes sense. And I’m not sure that there is some need for a new level of accountability beyond what exists. I’m not so sure that the role of the Parliamentary Committee beyond its initial involvement was sensible, but to suggest to Parliament that Parliamentary Committees are not necessary is probably not something that anybody will pay much attention to on the Hill. So the reality is, that will happen if Parliament wants to do it, almost regardless of what anybody else says. But I think it has worked -- I think in this particular case, the mechanisms have worked reasonably well. Clearly the Government has been, from all of the testimony I have heard, been very careful about how it proceeded in this case. Up to you whether or not it has acted properly or not, but clearly it has exercised a great deal of caution. It has also been very careful about to respond to questions and concerns and to appear before the Commission. No Ministers have refused to appear before the Commission. Clearly there is political -- there has been political accountability throughout this. And the Government, if it acted improperly, will be held to political account, which is, at the end of the day, how our system works. It all seems to me, actually, that it has worked exceptionally well. There may be questions about the time -- in particular about the time available for the Commission to do its work, and that obviously is something well within your purview, and I have no real sense of -- I’m sure that that task is a difficult one. And I have -- but I have no real sense of whether the timeline is too short or insufficient. Having said that, I would also say, having, I think, in my career, worked on some 30 or 40 Royal Commissions, Royal Commissions tend to expand to fill the time available to do the work. So I think it would be important, even if there were to be more time for the Commission to do its work, that it not be open ended. But I think, frankly, what I have seen, the accountability mechanisms are, frankly, about right. As to the issues of solicitor/client privilege and Cabinet confidence, having been a government lawyer for some years, no government is ever going to give up either on -- of either of those issues, for obvious reasons. And so I’m not sure that it is worth a lot of effort to deal with those issues, although Professor Kong’s suggestion, I’m not familiar with those statements, frankly. It comes after my time as a lawyer. But if that would work, it might help a little, but the reality is no government -- and I certainly would not advise a government to give up on Cabinet confidences or solicitor/client privilege. Once you’ve given up once, you’re on a slippery slope. And I would -- so I think no government will ever do that.

Volume 36 (December 2, 2022), page 51 36-051-08

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

I wonder, Ward, if -- before we turn to Morris, I might ask you -- so I know at some point someone had floated the idea of using the NSIRA or the machinery within NSIRA as an overview -- oversight mechanism, pardon me, with respect to solicitor/client privilege. And I wondered whether you might want to just briefly comment on that before we move on?

Volume 36 (December 2, 2022), page 53 36-053-04

Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I expressed the view the other day that it makes no sense, in my view, to tie the Emergencies Act to a definition within the CSIS legislation. I don’t think it works. I don’t think it’s effective. And certainly if there was a decision, you were to come to the conclusion that the definition is insufficient and it should be changed, to try and change that definition within the CSIS Act to allow you to broaden the definition for the Emergencies Act I think would be a mistake. That -- which I think takes me to the next step, which is if you -- if the CSIS Act is not the appropriate place to have, or to draw from a definition of -- that is sufficient for an Emergencies Act, then trying to throw back into the national security community, which is focused on a totally different set of issues and concerns, let’s try to throw back into that community a decision about emergencies in any respect is probably a mistake as well. So I would not see NSIRA as a place to come to a decision on that issue. And I’m not sure it solves the problem, frankly.

Volume 36 (December 2, 2022), page 53 36-053-11

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Morris?

Volume 36 (December 2, 2022), page 54 36-054-03

Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Thanks. Just a -- or to say what I was going to say, a couple of comments in terms of what’s been said so far. I was taking Kim’s point on backward looking and need to educate politicians, many of whom have no corporate memory, either of the invocation of the War Measures Act, and who have little understanding of national security issues, and who also, I think, are driven by the 24 hours news cycle to focus on the here and now and respond to day to day stuff and spend not enough time investing and thinking about how -- or investing in preventive measures, including mechanisms for coordination within the Federal Government itself, but also increasingly important, mechanisms of coordination between the Federal Government, other levels of government in Canada, and international governments, because the reality is, if you just look over the past -- you know, since 2000, the number of really big what I would call crisis emergencies, you know, everything from 9/11 to the global financial crisis in 2008, to five serious public health crises, starting with SARS, Ebola, H1N1, MERS, and of course now the pandemic, really requires a different way of thinking about government, thinking about the structures that we put in place, and puts a high premium on coordination. It’s very hard to do. After SARS, there was an amendment -- there were amendments made, we were involved in negotiations on changing the international health regulations, and the idea was that there would be much more early warning going on. Well, that didn’t seem to work out so well when it came to the pandemic. So there are cultural issues embedded in this as well. But I think -- these are some really tough issues, but I think that they need to be addressed. I’m not sure it’s necessarily the role of your Commission to address them, but I hope they’re followed up on. On -- you know, I kind of like your suggestion of Charter statements, the finding a way, because I agree with Ward that no government is going to give up on solicitor/client privilege. So if there was some way at getting at that, that would be great. I also think -- I think there is at least still one outstanding legal challenge by the Canadian Constitutional Foundation. I’m not sure about the CCLA, if they’ve got one going too. But seems to me another way of testing the Government’s legal theory is through judicial review. I don’t know what’s happening with that, I’m not -- I know there were standing issues. But, you know, that’s another way of getting at the legal points. So I just wanted to talk a little bit about some of the accountability mechanisms. I’m not going to talk about the legal accountability mechanisms. Nomi, you addressed them in your opening remarks. You talked about what the limitations of them are. But I think they’re very important, and they are progress from where we were with respect to the War Measures Act, and very deliberately, the standard was changed from, in the opinion of the government, to the necessity of reasonable belief. So I want to focus on Parliament and on the Commission. So in terms of the Parliament -- and with the Parliamentary oversight process, I’ll just go back to something I said earlier. I would start with the requirement of the government, the obligation set out in section 58(1) to provide Parliament with an explanation of the reasons for issuing the declaration and a report of any consultation with the provinces. And that's very general language. I'm just going back to a point you were making right at the beginning, and it may be useful to circumscribe and provide more guidance to the government as to what is expected of it in that explanation. And I think, and this has come up today several times, we should consider, because it's an explanation of the declaration, it should also be an explanation of the measures that are being proposed that Parliament needs to ratify. And particularly, it should provide an explanation, going back to the Oakes test, of why the measures taken are minimally impairing, why they are the most appropriate measures but impair rights no more than they need to. So when you get to Parliament, the first thing I would note is -- and I hadn't realized this until I read the legislation, that a declaration by the government can be revoked unless it's ratified by both the House and the Senate. So if the House approves it and the House is much more under the control of the government, and the Senate doesn't approve it, as I read it, it's revoked and it doesn't go back to the House. So this appears to be an area where the Senate, as we used to call the body of sober second thought, has a significant degree of power, and it's less partisan than the House. It's always been less partisan than the House, but it's even more -- even less partisan now because of the institution of independent senators. And that makes the check that was put into this legislation in 1985 an even stronger check on government action than when the Act was passed. Now, it's hard to do a serious assessment of Parliamentary accountability because this thing lasted for nine days. We never got past the ratification of the declaration by the House of Commons. I don't think the Senate even got to ratify it. And the committee that was set up, this joint bicameral committee had -- did not actually play their role, which was supposed to be an oversight role, a supervisory role on how the emergency was being managed by the government. So they instead morphed themselves into a after-the-fact review committee, did it I think in a rather partisan way, as I -- this is hearsay, but I understand that that may be the case. You know, if we had had an emergency that went on for 30 days, or that was extended, you would then have an opportunity to see how this worked, and I would hope that it would provide an opportunity in a longer emergency for the committee to actually hold hearings and call witnesses. Because I think it's important that there be more than just parliamentarians talking to each other and to the government, but also to get input from citizens and civil society actors as to how they are perceiving the management of the emergency. As I said, the role of this parliamentary review committee isn't clear. The statute suggests that its role is to review the exercise of powers and the performance of duties pursuant to the declaration. And instead, it's taken on this post hoc role of review, a function that's been assigned to the Commission. And so I agree -- Nomi, you had an article where you suggested that the Act be amended to clarify that the role of the committee is one of supervision of the emergency while it continues in force. And I agree with Ward, that you can't stop Parliament from doing what it, you know, what it wants to do, but this isn't an ordinary Parliamentary committee. It's been created for a special purpose. And finally, just I agree with something that Wesley Wark said the other day, that consideration should be given to assigning the role of ongoing supervision to the National Security and Intelligence Committee of parliamentarians for the reasons that he mentioned in Wednesday's panel, which were that NSICOP has adopted a non-partisan tone, which is precious these days, that it has access to classified information, and unlike other parliamentary committees, it has a dedicated secretariate and research staff. Capacity of parliamentary committees in Canada to actually do their work is a real issue. And the quality of inquiries that you get from parliamentary committees compared to the quality of inquiry that you get from a commission of inquiry are like night and day. If you can have a parliamentary committee that acts in a more serious way, that is properly supported, you might actually get more out of it, especially with an oversight role because parliamentary committees don't generally -- well, they may oversee things in a general way, but they don't normally kind of oversee a particular event, so it's quite a different role. But as was pointed out at that meeting, NSICOP lacks the ability to compel evidence because it's a committee of parliamentarians and not a real parliamentary committee. So in order for this to work, for them to play that supervisory role effectively, they'd have to be converted into an official parliamentary committee. The one accountability mechanism that we have had an opportunity to observe is this inquiry established under section 63. So just three quick observations about this. First, the government set up this inquiry under the Inquiries Act. The Act -- the Emergencies Act doesn't provide that it necessarily has to be under the Inquiries Act. The Inquiries Act has a lot of benefits in terms of the legitimacy of the inquiry because it gives you compulsory powers, and I think that is a absolute essential. So I think the Emergencies Act should be amended to provide that the section 33 inquiry would be done under the Inquiries Act. Second, I think the timeframe is too short. I agree that it shouldn't be endless. I think this has been just a huge undertaking for the Commission and for the Commission staff, the very, very broad mandate. And I think that something like at least an additional six months for the inquiry to do its work would be reasonable. I also think -- there's one other element of accountability, and I think accountability can be improved if there was a requirement or serious follow-up to the Commission's findings and recommendations, because I think it's probably common knowledge that there are far too many instances of governments, and not just the federal government, calling commissions of inquiry, gets politicians out of hot water for a while, and they can always say, "Well, there's a commission of inquiry that's examining this matter." They spend millions of dollars. They have voluminous sets of findings. They make recommendations. The government says, "Well, thank you very much and, you know, we certainly are going to study these, and we even accept them all in principle," and then they die. Meanwhile, you're functus. Once this report is issued, the commission no longer exists. So what happens to these recommendations and, you know, the findings, and whether they're recommendations about changes to the law, or changes to practice, or training, or whatever. And I think consideration should be given to follow-up mechanisms. And a good example is -- and I'm just looking for it because I have it here somewhere. Louise Arbour, former Justice Arbour did -- was asked to do an inquiry on sexual misconduct in the Canadian Forces and the Department of National Defence. And she had about a year to do her inquiry, and she had a large set of -- a large report and about 47 recommendations. The last two recommendations I would commend you to look at. One is that her recommendations be put to a parliamentary committee, that the department would show up before a parliamentary committee and explain if they were not going to adopt some of the recommendations, why they were not going to adopt them. And then she recommended something like a group, a special group that would follow the implementation of her report and have, I think, periodic reports to do that. I would go further and actually put it into the Emergencies Act that, you know, for example, requiring the government to appear before a parliamentary committee within six months to explain which recommendations it intends to implement and how it intends to implement them. And if it disagrees with some of the recommendations, it should provide reasons. And that should be followed up by a further report say within two years, because these things don't get done overnight. Maybe by the Auditor General if that's within their remit because the Auditor General is an independent officer of Parliament and has credibility. A report on the government's implementation of the recommendation, and that report should be examined by a parliamentary committee, either NSICOP or the Public Accounts Committee.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Morris. So I would just invite any of the panelists who might want to respond to the comments made by your co-panelists at this juncture. Ward?

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

Just a small point, and I disagreed with Professor Wark when he suggested NSICOP the other day, to be a little bit more precise about why I don't think NSICOP would be a good idea. I understand that it is a more non-political body, non-partisan body than some others, but I think there is a problem within NSICOP, and that is it is an attempt for the first time to create a parliamentary body that can review the actions of the service and other parts of the intelligence community. It is a very fragile attempt, and if it fails, as I think there is a better than even chance that it will still fail, there will then be a real difficulty in terms of how Parliament reaches out to review the intelligence community broadly writ. I think to introduce into NSICOP's responsibility, not that we have emergencies every day, but they do happen, and it could happen in the future, could make the non-partisan, it could threaten the non-partisan nature of NSICOP and endanger the experiment, which NSICOP is. So I would urge very strongly that NSICOP not be the body which reviews in any way an emergency because I think it potentially would create a very unfortunate situation in terms of review of the intelligence community by Parliament. Just a view.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Karin?

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Karin Loevy, Prof. (Law – New York University)

Thank you. I just wanted to stress in front -- because of what was said before, and I think just to stress this thing that we are -- we want to focus on capacity. We want to focus on capacity for the long-run, that it is also developing in time to confront emergencies in very, very broad levels. And I think it came up in this discussion too, how many different actors, some of them are on the local level, some on the provincial level and the federal level, internationally are there? So I really think that if we stay focussed on capacity and on the ideals of inclusive, coordination, cooperation, transparency in the process of managing emergencies, which I think is what we should be doing, then thinking about an institution that is, yes, pre-emptive, but also looking forward, that follows up on recommendations, that - - and that includes different actors from this community of emergency responders, which is varied and diverse and -- but still has very specific roles in it, of course, too, is important to recommend. So, yeah, thank you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Anyone else?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Yeah, I just -- I wanted to -- a question I have is how much -- what is the instrument that you used to do some of these things? I think everybody would -- I would certainly agree that with the point that you made about more consultation, and consultation between municipalities. In fact, as I understand it in this situation, there was a fair degree of consultation with the Mayor of Ottawa, the Mayor of Windsor, personally with the Prime Minister, other Ministers, I think. And there's always a question to me, you can put things into legislation, and not every emergency is going to involve municipal governments. The key for me is that you develop norms of behaviour and a culture of consultation. I think we actually have that, and it, to some extent it's personality dependent. And a lot of this, and there are a lot of intangibles in this too, a lot of this is about the kind of leadership you have and the relationships that were developed before the emergency actually happened that you can then pick up the phone and call on. A lot of this stuff is going to happen informally, and if that instinct, that reflex isn't there, putting something into legislation isn't going necessarily going to make it so. So I think there's a deeper issue of governance that needs to be addressed, and I wouldn't want someone to say, "well, we've put it into the law, so it's all okay", because if that's all you've done you probably haven't solved the problem.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. I actually -- I think I'm just going to -- I'm going to -- before I go any further, are there questions that you still have, Commissioner, that we haven't addressed yet?

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

All right. So I'm going to throw one thing out there, which came -- I can't remember, it came up in the course of a conversation at some point. So what would happen -- so we -- you know, we've discussed how this Commission of Inquiry does its -- or fulfills its function in part by sitting like a threat over the head of anyone who is going to use the Emergencies Act. So they know if they're going to use this legal instrument that everything they've done is going to be carefully scrutinised thereafter. But we saw that the Premier of Ontario, for example, opted to make use of parliamentary privilege and to refuse to give evidence before the Commission. And so I wondered if we might want to contemplate what might happen if in some future scenario the government who made use the Act made use of parliamentary privilege and refused to give evidence before the Commission? Ward?

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I'm not sure that there is anything that one can do to freeze that in the -- or ensure that in the legislation that that never happens, but it seems to me to be relatively unlikely as long as we remain a democracy that a Federal Government that had declared an emergency would then refuse to appear before the bodies that were created to review that mechanism. I am not sure you can -- putting -- I'm not sure legislation solves everything, and I am not sure there is any point in trying to legislate everything. It's a bit like, I suppose, they always say about generals that they're always fighting the last war. In some sense whenever we lawyers pass new legislation we're fighting the last war as well. I'm not sure you want to try and fight all the wars in legislation, it's a never-ending struggle. I think the -- I hope I haven't lost my train of thought here. The other issue that I think is -- no, I've lost my train of thought here. So I'll let you...

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

I think what you've said is, so far, is very wise. Kim?

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes. So, you know, I am in the United States, where we currently have a congregational inquiry underway in which members of the prior government are refusing to testify. So this is not entirely a hypothetical thing for those of us sitting in the United States. What our experience I think shows in the January 6th Inquiry are two things: One is that it's a congregational inquiry, congressional, and Congress has a power of subpoena. Somewhat difficult to enforce, but there is still a kind of a legal compulsion that Congress can exercise. And I wonder if anyone's thought about this with respect to Commissions of Inquiry. But I think the other thing, because I agree with what Ward just said, which is that these are situations in which I think it's hard to legislate the parameters of. What's been so fascinating about watching the January 6th Committee in the United States, is how much they've been able to learn from other witnesses. So even if they don't have the primary players testifying before them, there is such a trail that most decision-making now reads, either through text messages that are in the hands of people who actually will testify or other forms of, you know, sort of written documentation. And so I think that creativity in asking -- in you know, seeking information for such a Commission can often overcome some of these refusals to testify. But I do think that, you know, again, the question is whether the Commissions are backed with some kind of a subpoena power or other power to compel witnesses to at least show up and refuse to testify, even if they can't be compelled to testify against themselves. Thank you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

So I do think, and correct me if I’m wrong, that this Commission does have the power to subpoena, but while legislature is in session there is a Parliamentary privilege that allows people to refuse to turn up. Did I get that right, Commissioner?

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

All right. So we have about 10 minutes left, so I will just ask if any of the panellists want to take two minutes for some final thought or what you consider to be the key takeaway. Does anyone have any final thoughts? Victor?

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Victor V. Ramraj, Prof. (Law – University of Victoria)

This is more to reiterate a question that I think you were alluding to, and let me put the point hypothetically. So going back to Wednesday’s session and Professor Leah west’s suggestion that this is might be a federalism failure, the question that I have, and I don’t have the answer to, is what form of accountability can there be for inadequate interjurisdictional coordination? I think that’s what we’re getting at, in fact, when we’re talking about these subpoena powers because if the problem is a failure of interjurisdictional coordination it’s not clear to me how you match an institutional form of accountability, and we saw that with the Lancet Commission. So that, to me, is the essence of the problem.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Kim?

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes, and actually just following on that because I do think that this goes to my pre- emergencies issue, which is if something starts off as a problem in one province that doesn’t adequately handle it, it may become a national emergency by virtue of not being headed off, with lawful powers that take into account Charter rights, you know, at some earlier stage. So one of the things that this may suggest is creating structures that can better handle these forms of coordination outside the context of the Emergencies Act; which is to say, to think about -- I mean, many countries did this, you know, after 9/11, where they tried to look at some of these jurisdictional gaps, and to figure out ways to coordinate the responses of provincial authorities, national authorities; tribal authorities we haven’t discussed in this particular session. But, you know, in a complex form of government there are going to be all of these different powers that could be brought to bear to address this kind of crisis, and it might be worth thinking about how to put some coordinating mechanism in place so that the different levels are accustomed to communicating with each other before you actually need them to take some kind of action. So that suggests, in thinking about my sort of pre-emergency framework, that that would be one way to handle these situations. Thank you.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks. Morris?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Yeah, thanks. Just on the same point, I think history has shown that after every one of these crises, mechanisms do get put in place. So after the SARS crisis there was a -- I think a reinforcement of coordination mechanisms between the federal government’s Public Health Agency, which was created as a response to SARS, in fact, and provincial public health agencies; post-9/11 I think there was more -- there was a sort of a greater level of collaboration. And, you know, the use of either existing mechanisms or intergovernmental cooperation, or in some cases the creation of new committees, there is no shortage -- there’s a very thick infrastructure of committees of intergovernmental coordination in Canada. The question I think that has to be asked before we start creating new mechanisms is how are these mechanisms working, and where there have been failures why are they failing, and how do we fix them? So I agree completely with Kim that you need this; in fact, we have a lot of it, but it isn’t necessarily working on all cylinders, and there should be a review -- or several reviews, because it’s not just a question of national security; Public Health is a good example of how people are working together in these areas.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Anyone else? Hoi?

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Hoi Kong, Prof. (Law – University of British Columbia)

Yes, so Morris, I really liked you thought about norms of behaviour and how informal norms are kind of essential in this area. And I think that there’s a really important question, and this might be something the Commissioner might want to think about, is how you structure those norms of behaviour in a way that has a degree of permanence but enough flexibility, because I think that we’ve talked about accountability in terms of public accountability, legal accountability, but I think the internal accountability of political actors, political parties, and departments is equally important. So I think that -- I think, for me, that’s something that is an absolutely essential point.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

All right. Well, on that note, perhaps we’ll take our break and -- oh. Oh, sorry. Karin, go ahead, I missed your hand.

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Karin Loevy, Prof. (Law – New York University)

Okay. So I will say just I think that was said again. And, again, this issue of having a framework for an ongoing place in which these norms and behaviours are going to be generated, but -- and that it cannot be legislated, or at least that it has to be beyond or under legislation, there’s something else that’s going on the level of administration and on the level of the society itself. But I wanted to say one thing maybe to connect to the beginning to the question of threshold, to the question of liminality, that I think we should be careful of, and this -- so Canada does have a very robust set of mechanisms, and it’s admirable and I’ve been, like, looking at this from the perspective of outside of Canada in the last week or so, and it’s really interesting. But there’s something we should not forget, which is that this -- what happened in Canada this year is, in a way, a part of a global trend which took place in COVID and after COVID, of using emergency -- exceptional emergency mechanisms to deal with different kinds of crisis situations, and this happened -- this was a wave post-9/11; this is another wave. And so I think if Canada would find a way to both, you know, pay attention to this, limit this tendency within its own governance, but also to learn from this and more -- something more substantive about the way management -- the management of emergencies and crises should be taken into the future, it would be a great thing. So, yeah, thank you very much.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks very much, Karin. So we’ll take our break now and then turn to questions from the parties.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Noon.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

High noon.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much, Commissioner. So we’ll now turn to some questions from the parties. So the first question is; how would you respond to the suggestion that redacted information before the Commission limits the power of the Commission to exercise its accountability function, particularly with respect to sections 37 and 38 of the Canada Evidence Act that refer to public interest immunity and national security. Would anyone like to address that? And also in relevance -- that’s relevant. Ward, I feel like you have a thought.

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

A thought. It would be hard to say that it does not affect the ability of the Commission to reach a conclusion. Having said that, there are issues of national security; there are Cabinet issues; there are Cabinet documents -- Cabinet issues; there are solicitor/client privilege issues, and I -- that rise beyond -- that are simply issues that you -- the government is unable to make public. And so every -- there are always going to be cases where commissions and/or courts will struggle to deal with issues or have problems in dealing with issues. I guess it then comes back to the question of, for the Commission to decide whether those issues rise to the level that it wishes to make a comment about its inability to conclude on an issue. And that would only be, in my view, if in fact it did, in the Commission’s view, impede their ability to come to conclusion. But I can think of information of a variety of sorts that governments will never turn over or make available to anybody outside government. It’s just simply a reality of the system.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Weighing and balancing priorities and norms, I suppose. I see Kim has her hand up.

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yeah. So this is an issue when it comes to Executive Branch accountability all over the world. And I would suggest that there may be steps that can be taken between disclosing everything and disclosing nothing. And in fact, Canada’s already done this with regard, for example, to terrorism trials, where there are specially cleared counsel with security clearances who can see this information so that a proper defence is permissible. And also, the concept of gist, right? Of at least summarizing what’s there in a way that doesn’t disclose, for example, sources and methods. So I guess I would urge you to think about some intermediate steps, if in fact it is the withholding of classified information interferes. And I think this is an especially sensitive case; right? Because especially with regard to something like a public order emergency, which has a very high likelihood of relying on security sensitive information, it will essentially make it impossible for anyone to tell whether the government was reasonable at the moment that it launched an emergency if the information available to the Government at the time it made that calculation isn’t something that the Commission of Inquiry could see. So again, I think there may be ways to redact some information that would -- like, for example, sources and methods, which may be less crucial than the content of the information caused the Government to be alarmed, but there has to be, it seems to me, some way to get classified information into this process so that the Commission of Inquiry can make a responsible judgement.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks. Morris?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Yeah, I just wanted to get in on this a little bit. There are always going to be some categories of information that are absolute no-gos, and Kim just mentioned two sources and methods. But I think it’s important, and Mel Cappe wrote a piece in policy options a few months ago about this, that it shouldn’t simply be up to the government, that there should be an independent ability to adjudicate through a court to look at the balance of interests, the government’s interest, in maintaining the confidentiality of the information as against the importance of the information to the proceedings of the Commission. And there is -- I know there’s been some confidential -- some Cabinet confidence information that’s been provided to this Commission. I think this has happened at least three times before. I know it happened, for example, with respect to the McDonald Royal Commission on the RCMP back in the 1980s. And then, as Kim said, there are a variety of methods to provide information while still providing protection. It can be -- you can require people to sign confidentiality agreements. You can appoint a special counsel so that even if the parties themselves can’t see it, an independent counsel could look at the information. Court could redact part of the information and choose to make other parts of it public. But I think it’s important, you know, that the Executives shouldn’t be the sole decider of this. There should be some opportunity for an independent adjudication of these issues.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. On a related question, so the Government did give this Commission access to inputs before Cabinet, including a partial disclosure of information subject to Cabinet confidence, and of course they waived Parliamentary privilege. So are there ways, are there mechanisms that you panelists can think of to make this sort of thing a precedent for future commissions? Apparently not.

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

In some sense, the mere fact that it happens even up to a certain point means that in future, there is a precedent for doing something similar, which is part of, in a sense, the slippery slop argument. You do anything, you do create a precedent for the future. I think ultimately the reality is here, on all these issues, is the Government pays a price if it doesn’t provide some information. If it provides none and the Commission says something, or a Commission says something about failure to provide information, the Government pays a price. So the Government is -- again, this is a political system, it is the government -- the price the government will ultimately pay is a political price, and that’s the way the system works.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Right. So this is an example of public accountability, even in those areas where full legal accountability might not be possible. Karin, I see you have your hand up.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

You’re set ---

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Karin Loevy, Prof. (Law – New York University)

Sorry. Thank you. I agree with Ward that it’s going to happen because of the tendency to normalize. But I wouldn’t agree that it’s definitely something you could call a slippery slope, because -- or you could define within a slippery slope, because the problem is not the normalization. The question is what is being normalized? Normalization will happen anyway whenever emergencies are being managed because of the tendency of the management processes to become better, you know, at doing something, managing something. So I think we should understand that the flow of information is a critical feature of every emergency, and the question is what is the structure for it and what are the mechanisms that enable it, restrict it, or create communication and coordination around it? Kind of obvious, of course, but it’s important to -- and I think it was also, again, stressed yesterday in the jurisdiction, interjurisdiction response roundtable, when the structure of this multi-jurisdictional framework was portrayed, one of the first features of it was this ability to exchange information on a -- in a clear way, in a way that flows, that is not only stuck in one place. Thanks.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. All right. The next question. Does it make sense to have the same accountability mechanisms regardless of the kind of emergency? So we have certain emergencies that are politically tinged, and other ones which are -- I don’t want to say apolitical, because I don’t think there’s ever an apolitical emergency, but we could say less centrally political. Does it make sense that the Act has the same accountability mechanisms for all these kinds of emergency?

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Ward Elcock, former CSIS Director and National Security Advisor (formerly Government of Canada)

I think the simple answer is yes. I don’t think you can write a piece of legislation that -- I think it’s hard to systematize kind of all of multiple choice. I think you have to -- you pick your mechanisms of accountability, and those are the mechanisms of accountability. Some may work less well in some cases than others, but I don’t think you can do a kind of multiple-choice accountability.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

I suppose that’s one advantage of having different kinds of accountability. Morris?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

Yeah, I would agree with that. I think it’s hard to anticipate exactly how these things are going to roll out. So I can imagine, for example, a public welfare emergency, if one were to be declared, that started to impose draconian measures on people that were limiting of rights, perhaps -- and, you know, there’s room there for a proportionality or minimal impairment analysis. So there would be a role for judicial review in a case like that. I can think of other examples of, you know, public welfare emergencies, you know, natural disasters, where judicial review really wouldn’t be a particularly relevant factor. I do think -- and I think that the kind of review that you’d have in Parliament in a public welfare emergency, it might be a lighter hand of review, you might see, you know -- you know, and if you were dealing with a natural disaster, then you would in something like a public order emergency that is more directly impinging on rights. But I agree that I think keep them all. There's a menu of things and they can be applied as needed, depending on the circumstances.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Kim?

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes, so I think emergencies are like water. They seek the lowest point. And if you have a kind of, you know, lesser emergency that has fewer oversight mechanisms, you could imagine more serious emergency - - or more political, shall we say, emergencies being disguised as the less political ones. So I think it's actually important to have all the mechanisms in place, because one of the questions, as it has been in this inquiry, is is this the right category of emergency. And if you have different accountability mechanisms for different emergencies, you make that a much harder thing to ask. So all the accountability mechanisms I think should remain.

Volume 36 (December 2, 2022), page 79 36-079-01

Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Okay. The next question is a bit of a rephrasing or a regrouping around a topic we briefly touched on earlier. So one way of understanding the -- so we were talking earlier about economic emergencies that begin as economic and economic emergencies that arise from, for example, public order circumstances. So we might think of this as an economic emergency versus a question of economic security. So the question is, should the impact on the economy be considered in declaring a public order emergency. So is the impact on the economy an aspect of a threat to national security? Victor?

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Victor V. Ramraj, Prof. (Law – University of Victoria)

Again, I think emergencies tend to bleed into one another. And so the economic factors, you can imagine a very serious economic emergency where millions of people are losing jobs, or losing their livelihoods, that kind of emergency can transform into a public order emergency. So I think in that sense it needs to be taken into account. But again, I think it's hard to say that emergencies don't morph into other kinds of crises, and I think this public health emergency that's transformed into a public order emergency is a perfect example.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Hoi?

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Hoi Kong, Prof. (Law – University of British Columbia)

Yeah, I think the way the threats to the security of Canada is framed, there's kind of a connection between conduct and outcomes. And so if you were to think about economics, economic impact as an overarching goal, I guess just the question I would have is do you think it's within the same sort of structure as the rest of the threats to the security of Canadians. More generally, I think, if we think back to the anti-inflation reference, the parliament can enact legislation. So I think you can ask the question without putting it within the structure of emergency legislation.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thanks. Kim?

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yes. I was just going to say the same, which is that I think there are other mechanisms for handling economic crises, even shock economic crises, but it does seem to me that there may be an economic component. Again, proportionality analysis is the guide here. You know, some economic impacts actually affect fundamental rights. And so if that is true, then it may be the case that, you know, taking into account the hit to rights is requiring something like government action to preserve the rights in question may actually be something that would figure into the emergency declaration. But that's where I keep coming back to this point that proportionality analysis is not required anywhere in the Emergencies Act on the part of the executive, and yet I think that would just solve a lot of these kinds of problems because everything would go into the proportionality analysis calculation.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

I think that's a very interesting and wise way of approaching this. So the next question -- oh, I'm sorry. Karin, go ahead.

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Karin Loevy, Prof. (Law – New York University)

Sorry. No, just to support Kim on this issue of proportionality. You know, putting in the -- this standard into not only the place where it will come up naturally in assessing the measures taken, but also in the declaration itself. I think that's very important.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you. Okay. So now we turn to a fifth question. So what about suggestions -- so we've been talking a lot about how we might be able to tweak the Emergencies Act potentially to strengthen accountability, but what about the turning our attention to the Inquiries Act, for example. So if we want to strengthen the commission or any future commission's ability to do its work and to hold some future government to account, might it make sense for us to look at -- or to encourage a look at the federal Inquiries Act, which has a lower -- or which has fewer powers than, for example, provincial inquiries legislation. So do we have thoughts there in terms of potentially strengthening the Inquiries Act at the federal level?

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Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

I don't really have a whole lot to say on this because, I mean, the question I would have is, obviously, there are some people here who think that the Inquiries Act, which is actually being used here, has deficiencies. I mean, I think -- I mean, it has some strengths relative to informal inquiries obviously. So it'd be interesting to know -- to do a comparison of, like, what are best practices with respect to Inquiries Act? What are the gaps, the alleged gaps that are being -- that are of concern to some of the participants here? And then you can do an analysis as to whether there should be changes to the Inquiries Act to make it more appropriate. I mean, because it should be presumably the vehicle that's used for future section 63 inquiries. If it can be bolstered, let's do it. I mean, a recommendation that could come out of this Commission is that the government should do a review of the Inquiries Act to see if it's actually up to the standard of best practices in inquiries legislation, but I'd have to know what the specific deficiencies are to answer.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Kim? Your mic's off.

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Kim Lane Scheppele, Prof. (Public and International Affairs – Princeton University)

Yeah, sorry. So it seems to me that actually, here too, I think there's some general principles we can think about. So one is if there are more protections for the inquiry in the Inquiry Act than there are in the Emergencies Act, then it seems to me that the Emergencies Act should be at least as robust as the Inquiries Act. That said, there may be some special reasons for strengthening the powers in the case of these emergency inquiries, precisely for some of the reasons we just discussed, which is something like a public order emergency is very likely to have information that will raise classification issues. And you may want stronger powers for the emergency commissions than for ordinary inquiry commissions; right? So it seems to me that what this suggests is that the two Acts be looked at together, and to think about the different context in which they would be used, to make sure there isn't a way to evade powers by just going to the lowest common denominator and making sure that an inquiry into something like these states of emergencies, particularly where they involve security related information, have robust powers that may be exceptional compared to other inquires.

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Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

Thank you very much. Any other thoughts? All right. Then on that note, I'll turn things back over to M. le commissaire.

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