Hoi Kong

Hoi Kong spoke 5 times across 1 day of testimony.

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

    Thank you so much.


  2. 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.


  3. 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.


  4. 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.


  5. 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.