Jack Lindsay
Jack Lindsay spoke 11 times across 1 day of testimony.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
Thank you for that, Stacey, and thank you very much, Commissioner, for having me here. I want to start, though, by saying it’s important to note that emergencies are not crimes. Hazards are not criminals, and our emergency management practices are far broader than policing. While this use of the Emergencies Act was focused on a security issue, we should not frame our future as a policing function. The Emergencies Act is only one tool in the national emergency response kit. It is a crucial component of the rule of law. The laws, at the provincial and federal level, allow citizens to know in advance the range of powers and the limits on those extraordinary that governments will exercise during emergencies. The Emergencies Act is also not the only outdated tool in what has become a somewhat rusty toolkit. Thank you. It was passed in 1988 alongside the Emergency Preparedness Act. That Act, for the first time in law, set out how the Government of Canada would organize and undertake its emergency management responsibilities. It created Emergency Preparedness Canada, answering to its own minister, and reporting annually to parliament, a requirement that was quietly dropped in 1995. Prior to this, the federal government’s emergency management function had been restructured or moved between government portfolios over a dozen times over the course of about 40 years, a trend that’s continued with several more arrangements before disappearing as a distinct government agency when it was subsumed in Public Safety Canada by the Department of Public Safety and the Emergency Preparedness Act. The Emergency Management Act that was passed in 2007 to replace the Emergency Preparedness Act again revised the approach to how responsibilities were distributed within government. It created a more balanced responsibility for emergency planning sitting with every government minister while the minister responsible for the Act is tasked with setting the standard, providing coordination, and ensuring an appropriate level of preparedness. This is approach determines how government agencies are, or at least should be, ready to meet the demands of all four types of emergencies. The Emergency Management Act requires all the ministers to have emergency plans for their portfolios that include any programs, arrangements, or other measures to assist provincial governments, and through the provincial government’s local authorities, and any federal/provincial/regional plans. It is unclear to me if any such plans existed within the federal departments that may have included programs or arrangements to assist provincial governments with kind of public order disruption, or if there were federal/provincial/regional plans for Ottawa, or for other sites. I accept that such plans may have been in place but not publicly available. The organizational structure that we have remained in place from 2007 to 2021, something of a record for emergency management in Canada, when the Prime Minister the Emergency Managements Act’s ministerial function and placed it with the new Minister for Emergency Preparedness. The implications of that change have not been fully resolved. Public Safety Canada has developed the policy documents that form a loose hierarchy under the mandate of the Emergency Management Act. Many of these policies tools were in response to the 2008 Report of the Standing Committee on National Security and Defence. That Senate report was titled “Emergency Preparedness in Canada: How the fine arts of bafflegab and procrastination hobble the people who will be trying to save you when things get really bad”. The report was not positive. The Senate Committee concluded they did not believe the Canadian Government have been doing their job in preparing for kinds of major national emergencies that are bound to confront Canadians in the coming years. Time is too short to explore each of the policy documents in depth, and I must also, again, say that, as a citizen, I can only see what Public Safety Canada puts forward on its websites. You’ve already heard of the emergency management framework for Canada, the federal/provincial/territorial agreement on its principles. There’s also the emergency management strategy for Canada and its associated interim action plan that sets fairly aspirational goals for the portfolio over the upcoming decades, but there are many other policies that are -- where the polish is fading. The federal policy for emergency management 2012 simply paraphrases the obligations created by the Emergency Management Act into a police statement. The National Emergency Response System, 2011, describes how the federal/provincial/territorial relationship in coordination systems should be in place while also placing the principles of emergency management into a federal policy. The Emergency Management Planning Guide from 2010 was intended to assist all federal government institutions to develop their all-hazard strategic emergency management plans, each of which should establish the federal government’s objectives, approach, and structure for protecting Canadians and Canada from threats and hazards in that minister’s area of responsibility and sets out how the institution will assess a coordinated federal emergency response. Also in 2010, they brought out the Federal Emergency Response Plan. Again, the website says it was last update in 2010. It’s designed to harmonize federal emergency response efforts with those of the provinces and territories, non-government organizations, and the private sector, and it includes in it the Federal Emergency Response Management System which provide governance structure and the operational facilities for the Government of Canada to respond to emergencies. It establishes emergency response functions and assigns tasks to different departments. I’m not aware of how any of this planning has progressed in the past decade or if any of those plans developed or implements were done so in regard to the 2022 public order emergency. However, Deputy Minister Stewart, the Deputy Minister from Public Safety Canada, testified to you on Monday, November 14th, and he said: “In general, we did not treat the protests as an emergency management issue and that the framework that we’ve designed and agreed with the provinces and territories to deploy does typically apply to issues of public security in defence of law enforcement. It deals with natural disasters and the like.” This is an interesting distinction that does not seem to reflect the laws and policies I have just discussed. For example, the Emergency Management Act requires each minister to include measures to support the Canadian Armed Forces in case of war. This should raise the question of which national emergency is the Emergency Management Act and all its downstream plans and policies were meant to address, if not all of them. Of course, each time of national emergency has associated policies and procedures that fall into many different portfolios, yet every federal government department is required by the Emergency Management Act to identify the risks to their area and the express policy of the government is to take an all- hazards approach, which includes addressing vulnerabilities, both natural and human-induced hazards and disasters, and all- hazards approach takes in human-induced disasters that concern emergency management including intentional events that encompass part of the spectrum of human conflict and the disruption of critical infrastructure. Again, this makes me question the relationship between the Emergency Management Act and the Emergencies Act if not all hazards and not all four types of emergencies are to be considered in planning. That flurry of policy writing around 2010 may have seemed out of date, but Public Safety Canada joined the National Emergency Management Team late in the game. Prior to 1988, Canada had no emergency management legislation, while all the provinces had passed their own laws, starting back in the 1950s. So there’s now a lack of consistency across Canada’s legal landscape with regards to emergency management. The provinces and territories each have their own statutes that combine features of both the Emergencies Act and the Emergency Management Act, but do not necessarily contain all the same requirements, nor are the provinces consistent in where their emergency management function is located. I also wanted to point out that there is another -- I’m just going to move ahead -- challenge that we have that the Public Safety Act of 2004 amended various federal acts after the September 11th attacks. It inserted emergency director powers to Ministers responsible for certain acts to allow for urgent action for the purpose of public safety. For example, the Aeronautics Act was amended to allow the Minister to make interim orders to deal with significant risk direct or indirect to aviation safety. The power for Ministers to exercise these emergency directives added to the federal toolbox 15 years after the Emergencies Act was passed could resolve many potential situations without recourse to a national emergency. This highlights that the Emergencies Act does not reflect the intervening decades of policy and legislative change within the Federal and Provincial Government. And so I’ll just make one recommendation type comment now. In line with the tiered approach that we have, the sections of the Emergencies Act on public welfare emergency and/or the public order emergency could incorporate a reference to the use of such federal director powers at the request of a province when it is a question of exceeding the Province’s jurisdiction. This can be done by incorporating a reference in the Emergencies Act to section 7(c) of the Emergency Management Act, where declaring a provincial emergency to be of concern to the Federal Government could then trigger use of those federal directives. Thank you.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
M'hm.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
I do. I certainly agree with the point about why that failure has occurred, whether it was a choice or whether there was some uncertainty or if it's simply the inability of a provincial or local jurisdiction to exercise a power. But I think another issue should come up is when that failure occurs research shows that impacts of natural hazards like flooding may result from a failure of jurisdictions to act decades earlier, for example, in exercising local land use planning tools. So it's unclear to me if a declaration under the Emergencies Act to impose federal powers when a province or a local authority has chosen not to exercise a power that's within its jurisdiction would violate the aim of preventing a conflict between provincial and federal orders. I also want to mention that the consultation required by the Emergencies Act is not the only time, nor the appropriate time to have discussions about what to do, who should be doing it, or many of the other points raised. All of the planning and strategic tools that I mentioned earlier, and have been in place for over 15 years, should have addressed most of that consultation. There's also a challenge across the country in the provincial legislation that the provincial legislation is not consistent in the powers that it gives the lieutenant governors in council or mayors, but also between the legislation. So let me give one quick example from Ontario. The Ontario's Forest Fire Prevention Act says that: "For the purpose[s] of controlling and extinguishing a fire, an officer may use any privately-owned equipment and may employ or summon the assistance of every able[bodied] person over the age of eighteen, except persons providing essential services and persons physically unfit, and on private lands may take such action as he or she considers advisable to control and extinguish a fire." Whereas Ontario's Emergency Management and Civil Protection Act says: "...the...Governor in Council [can] make orders in respect of... Authorizing, but not requiring, any person, or...a class of persons, to render services of a type that that person...[can] reasonably [deliver]." And I know from my own research in Manitoba, we probably have seven or eight Acts that grant very similar powers to different civil servants in different circumstances other than the Emergency Measures Act. Like the Ministerial Directives, I feel that we should be doing a much better job of first coordinating and informing the public of the kinds of powers that a government may exercise in these sorts of emergency situations. Also, you know, the powers available to the Federal Government under the public welfare emergency, in particular, overlap with the powers of the provinces, mostly because the provinces all took their powers from the Defence of Canada Regulations in 1939, played with them for 50 years, amending and adapting them, and then in 1988, when the Federal Government wrote the Emergencies Act, perhaps naturally they gave themselves the same powers as the provinces had been giving themselves for the previous decades. So we need to be taking, I think, a threshold approach to defining disasters. We need to be able to make sure we have a clear escalation from routine local emergencies to a local state of emergency at a municipal level, to provincial declarations, and the provincial emergency measures legislation takes this into account. So therefore, that question of exceeds the capacity should -- we look for in the Act, should indicate one of two situations: the province and its local governments do not have sufficient resources to carry out its own emergency orders, or, as was suggested just a moment ago, the impact has rendered that province incapable of mounting an organised response under its own legislation, and therefore requires the Government of Canada to exercise those same powers as a replacement. That latter scenario is very unlikely, but it's a reasonable approach to the risk of catastrophic failure of a provincial and local emergency. That is what the United States went through with Hurricane Katrina. New Orleans and the State of Louisiana, their emergency management system collapsed as well. And so in the U.S., they have recognised that there could be times for catastrophic failures where the systems we put in place to deal with disasters fail as well. We don't have that in Canada. The other issue that I should just point out as well, if I may, contrasting us with the United States, is that in Canada, all of our resources can move between federal, provincial, and local governments without a declaration. We don't have to declare a state of emergency for Federal Government departments to help a provincial department, or for a provincial department to help out a municipality. That is why in the States, where they have to have the declaration, they declared in 2019, they declared 61 major disasters because they have to declare them in order to have the money flow. We don't have to have that, and so again our plans are more important because we could be doing a lot of this work without having to declare a state of emergency. So I guess it comes down to somewhat philosophical element in Canada's entire emergency management system that it presupposes that emergencies cannot be avoided, and therefore, our governments rely on these laws of last resort as their normal practice. This reinforces that misconception that our emergency management system is only working when it is responding, and this is, again, contrasted by other nations, and I heard New Zealand mentioned this morning, that see avoiding the need for extraordinary actions as the purpose of comprehensive emergency management. Thank you.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
If -- yeah, if I can. And I think this is very much speaking from my practitioner hat, and not my professor’s hat. The provincial emergency management systems are designed to coordinate the priorities during an emergency response. And it may be that the desires of a large city do not match the needs of the wider province, or the needs of one community don’t match the needs of a neighbouring community or First Nation. But I feel that that consultation piece, maybe if we replace the word “consultation” with the word “coordination” or “discussion”, because all of the who does what when piece should have been decided beforehand. And the Emergency Management Act obligates the Minister responsible to have those consultation processes in place beforehand. I feel that what we should be looking at is making sure that when the Federal Government does consult with the Lieutenant Governor in Council, that that provincial perspective has brought together all of the local perspectives. And I don’t want to wander any further into the question of the Indigenous consultation, but we should have that clear process within the response system to make sure that affected municipalities are integrated into the provincial perspective that’s going to the federal government. That is the emergency incident management system that we have in place, different municipalities will be trying to achieve different things, and they don’t always have all of the same goals. So I would add that though, as an alternative in terms of the local government, right now, the Federal Government has the ability, it’s under the Emergency Management Act, to recognize a provincial declaration of emergency as being a declaration of concern to the Federal Government. This really came out of the ice storm, where the ice storm wasn’t shutting down the Federal Government across the country, it was just shutting the government down here in Ottawa, and in parts of southern Ontario and Quebec. So the Federal Government wanted to know, when would a province likely be struck by a disaster that’s going to have an impact on our ability to do our job? Not our jurisdictional issue, but just our business continuity issue. And the Emergency Management Act covers all of that. The question about -- that was raised earlier about how the Parliamentarians get in during the convoy, the Emergency Management Act requires all of the provincial departments to have business continuity plans. So the fact that things didn’t go well doesn’t necessarily mean that the framework wasn’t there, just that it hadn’t been operationalized fully. So I think there’s alternatives. As I said, because the Federal Government can identify a provincial declaration of being concerned, perhaps in the preplanning stage, in consultation and discussion with the municipalities and the provinces, certain larger cities, I’m thinking of a city like Vancouver with a port, or Halifax with its port, could be identified, likely in regulation so that it can be changed, that says that a declaration of an emergency, say in Vancouver, or downtown Toronto, would also be a declaration of concern to the Federal Government, without necessarily bypassing the fact that Municipalities are under the Provinces. It’s just saying that if a big event happens in a big city, the Federal Government wants to be ahead of the game, not waiting to hear about it from the Province. That doesn’t have to mean that the Federal Government talks to every single Municipality, but that there’s a system for the Federal Government to talk to the Province, and for the Province to have coordinated that wider ask. So.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
Thank you.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
Well, I was just going to pick up on that opening analogy that you presented me with the idea of the Emergencies Act being a tool. And there is that saying that if all you have is a hammer, every problem looks like a nail. That’s what we've had in our system. We have legislation that has very strong powers to use in response, very few obligations to reduce risk or to prepare our communities or to have proper recovery. And with all due respect to all of my emergency management colleagues, we have filled our emergency management system to use the hammer with welders and stonemasons, but no carpenters. The Emergency Management Act is what lays out the tasks. The Emergencies Act is one tool. But what's really lacking in Canada is a strong professional emergency management cohort, a strong profession where the emergency managers are trained in emergency management and are practising that all the time throughout their careers. And again, I started my career in emergency management at 25 as an emergency manager. I've never worked in a fire department or I was never a police officer. I have been an emergency manager the whole time. And that, I feel, is making a big difference. And that’s what other countries are moving towards as well, really pushing higher education for emergency managers and seeing it as a separate profession, which is something that we need to do more of in Canada. Thank you for that.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
I -- if I may interject.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
I just wanted to point out, though, that emergencies happen in the context of the country, countries like the UK and New Zealand that are unitary governments that doesn’t have provinces that also have their own legislation have different systems than us. And so there’s emergency management principles that could be transferred but we have to tailor them to our situation and not just -- not just see one solution. This morning, there was a mention of New Zealand having a Minister of Police. The police is a national service, so of course they have a National Minister, not -- so again, we have to respect that different, too.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
More coordination.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
And it has been addressed in the opposite direction. The federal government is able to collect proprietary information from, say, private critical infrastructure providers, and that information is specifically not available under freedom of information. The government needs to know aspects of private business of telecoms and others, but they also appreciate that once they know it, it shouldn't go any further than them. So there have already been examples of how we've dealt with privacy in both directions that way.
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Jack Lindsay, Prof. (Applied Disaster and Emergency Studies – Brandon University)
Yes. First of all, I think the question of whether the military is well suited to some of the jobs is debateable. The fact that when a community is facing an emergency, that their local resources and capabilities have been exceeded, we need to look to where we have extra capability. And within the Federal Government, the Armed Forces are a large, trained, human resource and they have some equipment that’s appropriate to get into rough terrain or other things, but we could be doing much of the same work if we were working with community groups or others without, as you’ve suggested, just assuming that when things get too bad, we’ll turn to the Armed Forces. I believe in the media recently there have been discussions about the fact that that’s not also what the Military would like to see its role as. Having said that, other countries do have other citizen preparedness models that engage more of the citizens into that task. The other challenge is that we now face, compare to, say, 1950, when the Army came into Winnipeg to help with the flood, or when Mel Lastmen asked for the Army. We now have to face the workplace health and safety issues. We can’t send a soldier to do a task like sandbagging if they haven’t been properly trained to do that, or if they don’t have the proper safety equipment. And we face the same thing with volunteers. So one of the underlying questions, I think, is that are the special powers that the Provinces and the Federal Government have claimed in times of emergency are they really the powers that we need? Or should we be able to in a state of emergency say we are suspending some aspect of the privacy legislation? Or are we suspending some aspect of workplace health and safety, recognising that volunteers are going to be working in a dangerous situation which is the entire community? So it's about having more tools than just that hammer that we're always looking to use those extraordinary powers. Extraordinary powers that we felt were inappropriate even in the Second World War when we used them, and they're still the same powers that we have on the books today. So I do feel there's a lot more that can be done within the emergency management community to offer more alternatives.