Karin Loevy

Karin Loevy spoke 11 times across 1 day of testimony.

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

    Hi. Thank you. Do you hear me?


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

    Thanks so much.


  3. 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.


  4. 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 ---


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



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

    Yeah, sorry.


  7. 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.


  8. 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.


  9. 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.


  10. 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.


  11. 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.