Kim Lane Scheppele
Kim Lane Scheppele spoke 10 times across 1 day of testimony.
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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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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.
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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.
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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.
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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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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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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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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.
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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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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.