Dwight Newman
Dwight Newman spoke 6 times across 1 day of testimony.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
All right. Good afternoon, and I’m very pleased to be a part of this discussion. I’m fortunate to be joining from London England today and just glad that the Zoom connection could work to facilitate participating. I’ll start off just briefly by saying that I don’t want to speak too directly to convoy itself so much as to speak about the issues of jurisdiction on emergencies generally in the context of the forward-looking nature of this roundtable. The federal jurisdiction in relation to emergencies can come from different sources, and the term “emergencies” is potentially broad and potentially multi-faceted and used in different ways in different contexts. But thinking in general in terms of a federal jurisdictional role in the context of emergencies, that can come from sources of federal authority under Section 91 of the Constitution Act, 1867. Areas where the federal government has jurisdiction, such as on matters of international trade, the international borders of Canada, there’s federal jurisdiction, and to the extent an emergency engages those contexts, there could be a straightforward federal jurisdiction. The same could be said of something like the National Capital Region in terms of their being a recognized area of federal jurisdiction there. At the same time, the federal government can also take up jurisdiction that it would not normally have in the context of an emergency making use of the Emergency Power Branch of the Peace, Order, and Good Government power held by the federal government, and that’s been interpretated in some case law to allow the federal government, in the context of a temporary situation where it has made a formal declaration of an emergency -- and there’s controversy on just how to describe it, but where there’s a sufficiently strong basis for that determination of there being an emergency with that being defined differently in different cases, the federal government has constitutional jurisdiction in relation to something that normally would be within provincial jurisdiction. Of course, provinces have, normally, much jurisdiction, over matters of local concern, matters of property and civil rights, many things that would relate to emergencies in the broadest sense of the term, and so this POGG Emergency Branch power is significant. The Emergencies Act is a federal statute that doesn’t necessarily use all of the powers of the POGG Emergency Branch but that uses that POGG Emergency Branch in some circumstances. Some parts of the Federal Emergencies Act relate to matters more within federal jurisdiction, and international emergency or a war emergency would be within federal jurisdiction. Something that’s a public welfare emergency, or a public order emergency, might normally have been in federal jurisdiction, or provincial jurisdiction, or a bit of a mix of both, and the Emergencies Act says that in some circumstances, the federal government may take up jurisdiction there, presumably relying upon the POGG Emergency Branch if the matter would normally be within provincial jurisdiction. The Emergencies Act shifts power from the legislature to the executive at the federal level, and it shifts, sometimes, jurisdiction temporarily from province to the federal government based on a set of balancing mechanisms within the Act, including a number of a provisions on consultation with provinces, requirements of provincial consent in certain circumstances, in Sections 14 and 25 of the Emergencies Act, and various matters. I’ll just say, in the context of emergencies where federalism is at stake, federalism can be affected by responses to emergencies, whether it’s symbolically or in practical ways that resound over time. And certainly, the invocation of the War Measures Act in the context of the October Crisis -- obviously, predecessor legislation -- had some long- term effects of federalism and issues related to the federal- provincial tensions in the country. It remains to be seen what will happen out of the 2022 situation. The other thing I’ll say -- and this probably feeds into other topics, though, is simply that the Emergencies Act has not been updated in light of Section 35 rights or in light of the United Nations Declaration on the Rights of Indigenous Peoples Act, Section 5, which obviously requires measures at the federal level to ensure that the laws of Canada are consistent with the UN Declaration on the Rights of Indigenous Peoples. That’s a topic I imagine we’ll be getting more into. The federal government has ways of using some of its jurisdiction more than it has without using the Emergencies Act, necessarily. And to the extent that the convoy situation highlighted vulnerabilities of the National Capital Region, I would just say, the solution isn't necessarily solely in terms of modifications to the Emergencies Act, but might involve the federal government taking up more of its jurisdictional potential in the context of the National Capital Region through legislation just on how the National Capital Region is regulated and policed. And that could be something else to be considered apart from the Emergencies Act. So those would be a few comments in response to that question, and I might leave it there.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
Sure. Well, it's certainly a thorny question and it's actually important to think about how that question is asked because to suggest the federal government can grade the passing grade or failure of another government when it acts in its ordinary jurisdiction or chooses not to act in an outwardly visible way could actually risk going beyond the powers of the federal government. Another government not acting in an outwardly visible way may actually be the policy choice of that government acting within its area of jurisdiction. This could be very difficult to judge in some situations as to just what is happening. But we could think of a lot of different scenarios that might actually have different answers to this question. So certainly, if the federal government were acting within an area of its own unambiguous jurisdiction, then -- but it was somehow affected by a province not acting, well then, it's unproblematic for the federal government to act because it's acting within its jurisdiction. The more challenging situations are well, what if a provincial government seems unable to do something or if it's unwilling to do something that matches with what the federal government is hoping? Well then, where do we go? The situation with provincial government rendered unable to act in some way is actually a thorny one in relation to the Emergencies Act. If a provincial government's cabinet were, for some reason, unable to meet and unable to communicate in a worst-case scenario, in the section 25(2) in the context of a Public Order Emergency, there is a way in which the federal government can proceed, even without consulting with that province in advance of it acting. In section 14(2), in relation to a Public Welfare Emergency, there actually -- or section 14, I should say, not just 14(2) in relation to a Public Welfare Emergency, the consultation and consent requirements of a province in relation to the emergency just within that province actually would pose a problem for the federal government being able to act in that scenario under the Emergencies Act. So there may actually be situations that are really difficult to catch and to entrench perfectly within the Emergencies Act in a way that’s responsive to the needs. And I guess I'd say there is always the possibility of the federal government passing emergency legislation outside the Emergencies Act based on the POGG emergency power, but crucial for that would be that the federal government be able to convene Parliament and that Parliament be able to function. One of the disturbing incidents in what occurred in Ottawa this year, to my mind, was that Parliament's ability to carry out its review of the use of the Emergencies Act was on a particular day actually blocked by what was going on in Ottawa. And it's essential that there be ways sought of ensuring that government can continue to meet as required, particularly if it were in a situation where it might need to pass additional legislation on an emergency basis. So that would be a situation, depending on a lot of different things. If a provincial government were actually unable to act, well, that would justify the federal government acting, conceivably, but it might actually be blocked by current provisions of the Emergencies Act in some situations, so complicated scenarios. The really challenging situation here though is, if a provincial government took a clear policy view in an area of its own jurisdiction, in its ordinary jurisdiction, and there weren’t a clear federal stake in that, it might be that the federal government doesn’t have simply a chance to jump in on that. And so the question, when can they and when can't they really depends a lot on the context, and of course, some contexts will mix together these different considerations. So I think it's really important to think about the range of scenarios as between a provincial inability to act and a deliberate policy choice by a province not to act in an outwardly visible way, and to think about the degree of impact on other members of the federation as a factor that could come into things. And when I was thinking a bit about these types of issues in advance, I was thinking well, the solution might be in improving the consultation provisions within the Emergencies Act further. And I still think there are improvements that could be made there in terms of defining additional types of scenarios and the types of consultation that should occur. But I also think it may actually be very challenging to capture all of those scenarios in a way that keeps clear legislation that doesn’t make things worse. And I do think it's very important to ensure that steps are taken to ensure the ability of the federal Parliament to continue to meet in some way even in the context of more challenging emergencies, and that that actually is necessary, given the possible need to pass additional emergency legislation in some situation that might not be captured by the existing Act. The other thing I'll just throw in as one further wrinkle is that it's also important to think about the term "emergency" and the concept of emergency, both in terms of what's an emergency in -- versus what's a set of simultaneous emergencies, and whether they're linked or not bears on how some of these provisions on consultation and consent by the provinces actually play out. And it's important to think about what an emergency means in temporal terms. So if someone's just thinking about the emergency that needs to be responded to this afternoon because there's a pressing emergency, something genuinely urgent, well, that’s one scenario, but what if a government has weeks or even months to think about the situation that’s to be dealt with under emergencies legislation, or the cleanup efforts after a natural disaster extend well beyond the moment where there can't be any consultation or any discussion? This is something that actually has been written on the Indigenous context. A scholar named Courtney Kirk, who's published a -- or who's produced a thesis on emergency management in the context of First Nations, points to this issue where sometimes if you talk about creating all kinds of exceptions for emergencies, if one is thinking about the situation where there is no time to do anything other than just to react. Well, that's one thing, but if you're talking about using emergencies legislation to carry out reconstruction afterwards, which is what has happened at the provincial level, for example, in the context of certain kinds of natural disasters, well then it's actually much more feasible to carry out all kinds of consultation and discussions that might not be imagined in the context of something that needs to be done this afternoon. And so it's really important to break down these concepts a lot further, and I'd say to improve the -- my recommendation would be to try to improve the consultation provisions of the Emergencies Act, but also to recognise that it may not be possible to capture everything about that. And to ensure that there's an ongoing ability of the Federal Government to function, even conceivably to pass additional legislation in response to emergencies in some situations, and that means Parliament may need to be able to meet in some innovative ways. And there was that unfortunate incident during this year's events where there were actually concerns about that. So I'll stop there and say that those would be a few comments in response to that question.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
Sure. And I'll just preface it saying I agree entirely with the notion that there ought to be discussions well in advance of any particular emergency arising, and that the opportunities for coordination between governments start well in advance of the need for emergencies legislation years in advance, as has been suggested. But in the context of an emergency-type situation arising where there's contemplated use of the Emergencies Act, currently there are a number of provisions in the Emergencies Act on consultation. One could mention section 14, section 25, section 35, and section 44. And of course, as has been highlighted a couple of times now, the Emergencies Act was drafted in a period prior to the Federal Government properly recognising Indigenous rights, not just of First Nations, but of Métis rights holders, and the Inuit as well. And I guess I would just say here that there needs to be an updating of the Act around Indigenous consultation, at minimum, simply to meet existing constitutional obligations on the duty to consult, for example, but also in relation to the further-reaching dimensions that consultation needs to have in that context in light of Indigenous jurisdiction, as has been highlighted by President Sayers. But this legislation is years and years behind the development of law in the fact that there hasn't been any kind of updating in relation to Indigenous governments. In terms of consultation with provincial governments, I would say there could be things actually learned from the duty to consult jurisprudence in the context of Indigenous governments, interestingly enough, because the word "consultation" appears in the Emergencies Act, but with relatively limited -- a relatively limited sense on what that might mean in the Act. And thinking about what makes for meaningful consultation, which is the standard in the context of the duty to consult Indigenous peoples, thinking about that sense of meaningful consultation, if consultation in the Emergencies Act is there to ensure in part that the Federal Government doesn't act in a way that's problematic vis-à-vis the provinces, and I think that's one of its central roles within the Act as it exists, then the idea that the consultation ought to be meaningful, ought to be providing an exchange of information and response, ought to be recorded in a meaningful way to show how the Federal Government considered acting differently in light of the information or perspectives received from provincial governments, that would be a preferrable means or a preferrable form of consultation. And it may be possible to add language to the Act to reflect that, or it may be possible to engage in more meaningful consultation, even without amendment of the language of the Act, but based on different practices. And I think that's an area where there could be some learning, even from this context that the Act itself has unjustly and illegally excluded over the past number of years and decades. So I guess I'll say that much. Another issue, of course, that arises is in relation to the role of municipalities. And this is complex in terms of whether the Federal Government ought to be consulting municipalities has some real delicacies to is because municipalities, of course in constitutional terms, are creatures of the provinces and it's within the constitutional jurisdiction of provinces to create municipalities and to shape municipalities. And were the Federal Government simply to be acting in a way that ignored that principle, there would be some problems in terms of jumping past levels of government. At the same time the Federal Government certainly wants to be informed by what's occurring in municipalities at a local level where that knowledge is held. And it might be appropriate to include language in the Act that at least permits the Federal Government to consult municipalities. That obviously has already occurred in the context of the recent use of the Emergencies Act in 2022. The consultation record reflects that the Federal Government actually was in contact with the mayors of some municipalities. Language that would specifically authorise that in the Act might be appropriate. Language that would actually encourage that might well be appropriate, subject to that delicacy, in relation to the federal/provincial interaction here and the provinces' fundamental constitutional role in relation to municipalities. But in terms of getting information from larger municipalities or directly affected municipalities, it certainly would be helpful to the Federal Government to have that. And so I think there is room to recommend a number of possible changes in the consultation provisions or practices simply to say it's essential that there be incorporation within the Act of appropriate consultation provisions in relation to Indigenous rights-bearing communities or a constitutional standard is not being met there. This goes further in relation to the UN Declaration on the Rights of Indigenous Peoples Act in terms of what provisions should be there in terms of consultation with Indigenous nations and Indigenous peoples. It would be appropriate to consider at least practices or possibly statutory language related to making consultation with the provinces more meaningful, or ensuring that it's meaningful, and it could be appropriate to offer some specific authorisation or even encouragement in relation to engagement of the Federal Government with municipalities in some situations subject to some complex delicacies on that vis-à-vis the provinces. Those would be some initial thoughts in terms of some possible changes in relation to consultation.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
Okay. Thank you for the question. I'll say, I wasn’t trying to refer specifically to the present situation because I understood the purpose of these roundtables as to reflect on matters in a more forward-looking way, but simply to say that parts of the Emergencies Act are grounded in federal jurisdiction without the use of the POGG emergency power, without the emergency branch of the Peace, Order, and Good Government power. And one could give other examples simply in relation to an international emergency or a war emergency being largely within federal jurisdiction to start with, although with pieces in provincial jurisdiction. That said, I mean, the response in relation to something with provincial elements could have elements where there would be a natural federal jurisdiction, but there would also be room for the federal government to deal with that legislatively in some way outside the Emergencies Act. And so I guess obviously, in referencing the National Capital Region, I was affected by seeing the vulnerability of Canada's National Capital this year, as I think probably many Canadians were in seeing that Canada's National Capital is humiliatingly vulnerable to all kinds of problems, in some ways. And I guess the response doesn’t necessarily need to be the use of the Emergencies Act in future. The response could readily be subject to all of the discussions that need to take place on this, and the disadvantages that there could be, but it could be in the form of federal legislation taking further steps in regulating the National Capital Region and assuming a larger federal role in the National Capital Region as occurs in some other capital regions of other countries elsewhere in the world. And so it's just a generic point about jurisdiction, in some ways, to say there can be bases for federal jurisdiction that don’t rely upon the POGG power in relation to some kinds of emergencies, and that also says that in relation to some kinds of vulnerabilities, there may be good legislative responses that are outside a future use of the Emergencies Act, or outside an amendment of the Emergencies Act to try to cope with something that the federal government hasn’t dealt with through other kind of legislation that it could use to deal with those same types of issues. So I hope that makes it clear. I wasn’t trying to comment on this particular situation, although, obviously, at a general level, as all Canadians, I saw some things about the situation, but obviously your Commission has engaged in extensive hearing of evidence and extensive fact -- will engage in extensive fact finding in relation to situation so I speak only relation to the most generic of understandings that the National Capital Region was a place whose vulnerability was revealed by the situation this year.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
I was going to build directly upon the comments just offered. I mean, the first comments I think suggest that there may be times where some government officials are too risk averse in relation to decisions on that kind of legislation. But the easy solution in one way is actually to put in amendments to the legislation. Those don't need to be in the emergencies legislation. They could be in the privacy legislation itself. I'm not an expert on that area. I can't speak to specific amendments to specific Acts, but I just wanted to highlight that it may be very appropriate for different pieces of privacy legislation to have better developed emergency exceptions.
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Dwight Newman, Prof. (Law – University of Saskatchewan)
I'd just say that I hope I didn't define this too narrowly in my remarks on meaningful consultation before. Certainly, thinking about the present statutory provisions about whether to invoke the Emergencies Act, yes, there should be meaningful consultation there. But to the extent that consultation can help in determining other possible solutions, that would be a very appropriate part to a better form of consultation, and I think more enriched consultation, which I acknowledge the point that this hasn't happened consistently with the federal government and Indigenous communities, but the case law is there to say there's meant to be meaningful consultation Well concepts of consultation guided by that could lead to a richer range of options than just a binary invoke, not invoke choice.