Morris Rosenberg

Morris Rosenberg spoke 9 times across 1 day of testimony.

  1. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Thanks. So this actually, I think, follows quite well. There’s been lots of discussion about whether the government’s declaration of an emergency met the threshold of threats to the security of Canada, and I don’t intend to go over that ground; it’s been ploughed quite a lot. I did, however, want to say a word about the other part of the threshold that has to be met, and that is, the public order -- that the public order emergency is so serious as to be a national emergency; and, in particular, I wanted to focus on the requirement that the matter can’t be dealt with effectively under any other law of Canada. And, like Hoi, I am indebted to Leah West also for her explanation of the term, “Laws of Canada,” and I agree with her interpretation that it refers to federal statute law or federal common law. So how is this requirement to be interpreted? And I can think of three possible scenarios. First one, most clearly, is that there may, in fact, be no other law of Canada that even, you know, comes close to addressing the emergency situation. Alternatively, it may be that there are laws that exist, but there are reasons for not resorting to them. For example, there may be laws in place, but there are operational barriers to the effective deployment of the law. For example, if there is inadequate enforcement capacity, or if there are procedural requirements, which couldn’t be fulfilled in a timely way. It may also be that there are laws in place, that may, in the view of the government, be more harmful to individual rights or to social cohesion than the invocation of a temporary emergency. And in the questions we got, the example that was given was the possibility of resorting to the National Defence Act use of a civil power, and the government did not do that. In fact, I think there was some testimony, maybe from the National Security Advisor who said something to the effect of, you know, doing that would just inflame the situation. So with respect to that example, there’s a question as to whether the concept of effectiveness captures this reason for not resorting to bringing in the military. Maybe some consideration should be given to a different, or additional criterion to be added to section 3 that might take into account the government's judgment on the appropriateness of using a law that it deems excessive in the circumstances. You start to get into proportionality and minimum impairment analysis. And one of the things that was distributed to us was a paper that Professor Lazar did for the Commission setting out some examples of what the government should consider to make the reasonable belief that the emergency measures are necessary. And I'll mention two that are relevant to this discussion. The first is that the measure taken at the practical or technical capacity to bring about the outcome, and the other is that the government will not just aim to resolve the situation, but to do so in a normatively appropriate way. So the government might wish to resolve the situation -- and here I'm using Professor Lazar's words -- either quickly, or safely, or fairly, or cautiously, or efficiently, or decisively, or expeditiously, or cost effectively. But I think the same criteria could be applied to determine whether other laws of Canada are not effective or appropriate. They may be available but would either not have the technical or practical capacity to bring about the outcome, or they could not do it quickly, safely, fairly, et cetera. The government's required to believe on reasonable grounds that a public order emergency exists and necessitates the taking of special temporary measures for dealing with it. That judgment is subject to judicial review by the courts and subject to review by Parliament and by the inquiry that's established after the emergency is over. All three of those accountability mechanisms should require the government to clearly explain whether were other laws that, on their face, could have been used and why they were rejected. And the first opportunity to provide reasons for why other laws of Canada would not have been effective is the explanation, and the explanation for issuing the declaration that the government is required to provide to Parliament under section 58(1). And this provides a basis for further exploration of these issues by Parliament in its supervisory role under part 6 of the Act and would also be able to be scrutinized by media and by civil society actors who may be able to feed into the Parliamentary process. And perhaps most importantly, the government's explanation on the ineffectiveness or inappropriateness of other laws should be scrutinized in depth by the ex-post inquiry established under section 63. I'll stop there. Thank you.


  2. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Yeah, I’ll start on this. Thank you very much. So I saw a bit of Wednesday’s panel and -- that Ward was on. And I know that there were some mixed views in terms of whether the definition of public order emergency should be amended to address economic security threats and also threats to critical infrastructure, which I think are related. And I have a couple of thoughts on policy questions that should be considered before we kind of rush into doing that. And I guess the first order of question for me is whether these are best addressed through emergency legislation or by enacting new legislation. The U.K., for example, now has, in the House of Lords, the -- it’s Public Order Bill, I think Leah West mentioned this the other day. That’s a law that adds significant new police powers and new offences in relation to obstructing major transport works and interference with key national infrastructure. And there I think are several aspects to this question. It’s not clear to me that the Emergencies Act is always the worse option. You can ask questions like, “Which would be more effective?” “Which is least disruptive of the rights of citizens?” Legislation, of course, will go through a full deliberative process in Parliament that may provide a more robust opportunity for involvement by civil society actors and media, Parliamentary hearings. We’ve had some very good examples. For example, the anti-terrorism legislation in Canada, which was, some people would say, rushed, and was introduced into Parliament in October and was law by the end of December, notwithstanding that, there were hearings before the House of Commons Justice Committee over a course of about six weeks, where 80 witnesses were heard, and in the Senate, over the course of about five weeks, where 60 witnesses were heard. And those hearings actually resulted in significant changes to that law. So a legislative process can actually be -- and I would say that in that case, a lot of the commentary and a lot of the amendments were to scale down the scope of those powers that were provided and to take better account of civil liberties concerns about who would actually be swept into -- under that law. But that really depends. Kent Roach and Craig Forcese wrote a book on after the Harper Government enacted Bill C-51, this happened after a couple of events which took place in Canada in 2014 in Saint-Jean-sur-Richelieu where somebody was killed right here near Parliament Hill. And their critique of that legislation, in part, was like the Patriot Act in the U.S. in 2001, it was just ran through. So there may or may not be an opportunity for meaningful input if you’re looking at legislation. You know, what it also means to ask the question whether it’s better to amend the regular law of the country to create permanent new government powers, to normalize new powers. If you look, for example, at the law that Alberta passed, which I think is being challenged, the Alberta Defensive Critical Infrastructure Act, which has been criticized for being overbroad and unclear in its terms, it’s not an emergency law, it's part of the regular corpus of law in Alberta. Is that better? Or is it preferable to address these matters through the declaration of an emergency, which is temporary and subject to legal, Parliamentary, and Commission review? And as I was thinking about this, I went back to give Kent a little more credit, he and some of his colleagues at UofT law school were instrumental in 2001, within a couple of weeks after the legislation was tabled, in having put together a conference and then an instant book, which he then drove up and distributed, I think, to every member of Parliament, and I think it had an impact. There’s an interesting article in that volume by Professor David Dyzenhaus called, “The Permanence of the Temporary,” that deals exactly with this question as to which is worse; using an emergency act or changing the corpus of law on a permanent basis. I’ll stop there.


  3. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    I just ask a question of clarification, sorry. When we talk about economic emergencies, are we talking about things like a global financial crisis, or are we talking about things like a blockade on the Ambassador Bridge that prevents supplies from going back and forth across the border and results in, you know, people losing their jobs, potentially the loss of confidence in the United States on Canada’s reliability as a trading partner? Because they’re very different.


  4. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Thanks. Just a -- or to say what I was going to say, a couple of comments in terms of what’s been said so far. I was taking Kim’s point on backward looking and need to educate politicians, many of whom have no corporate memory, either of the invocation of the War Measures Act, and who have little understanding of national security issues, and who also, I think, are driven by the 24 hours news cycle to focus on the here and now and respond to day to day stuff and spend not enough time investing and thinking about how -- or investing in preventive measures, including mechanisms for coordination within the Federal Government itself, but also increasingly important, mechanisms of coordination between the Federal Government, other levels of government in Canada, and international governments, because the reality is, if you just look over the past -- you know, since 2000, the number of really big what I would call crisis emergencies, you know, everything from 9/11 to the global financial crisis in 2008, to five serious public health crises, starting with SARS, Ebola, H1N1, MERS, and of course now the pandemic, really requires a different way of thinking about government, thinking about the structures that we put in place, and puts a high premium on coordination. It’s very hard to do. After SARS, there was an amendment -- there were amendments made, we were involved in negotiations on changing the international health regulations, and the idea was that there would be much more early warning going on. Well, that didn’t seem to work out so well when it came to the pandemic. So there are cultural issues embedded in this as well. But I think -- these are some really tough issues, but I think that they need to be addressed. I’m not sure it’s necessarily the role of your Commission to address them, but I hope they’re followed up on. On -- you know, I kind of like your suggestion of Charter statements, the finding a way, because I agree with Ward that no government is going to give up on solicitor/client privilege. So if there was some way at getting at that, that would be great. I also think -- I think there is at least still one outstanding legal challenge by the Canadian Constitutional Foundation. I’m not sure about the CCLA, if they’ve got one going too. But seems to me another way of testing the Government’s legal theory is through judicial review. I don’t know what’s happening with that, I’m not -- I know there were standing issues. But, you know, that’s another way of getting at the legal points. So I just wanted to talk a little bit about some of the accountability mechanisms. I’m not going to talk about the legal accountability mechanisms. Nomi, you addressed them in your opening remarks. You talked about what the limitations of them are. But I think they’re very important, and they are progress from where we were with respect to the War Measures Act, and very deliberately, the standard was changed from, in the opinion of the government, to the necessity of reasonable belief. So I want to focus on Parliament and on the Commission. So in terms of the Parliament -- and with the Parliamentary oversight process, I’ll just go back to something I said earlier. I would start with the requirement of the government, the obligation set out in section 58(1) to provide Parliament with an explanation of the reasons for issuing the declaration and a report of any consultation with the provinces. And that's very general language. I'm just going back to a point you were making right at the beginning, and it may be useful to circumscribe and provide more guidance to the government as to what is expected of it in that explanation. And I think, and this has come up today several times, we should consider, because it's an explanation of the declaration, it should also be an explanation of the measures that are being proposed that Parliament needs to ratify. And particularly, it should provide an explanation, going back to the Oakes test, of why the measures taken are minimally impairing, why they are the most appropriate measures but impair rights no more than they need to. So when you get to Parliament, the first thing I would note is -- and I hadn't realized this until I read the legislation, that a declaration by the government can be revoked unless it's ratified by both the House and the Senate. So if the House approves it and the House is much more under the control of the government, and the Senate doesn't approve it, as I read it, it's revoked and it doesn't go back to the House. So this appears to be an area where the Senate, as we used to call the body of sober second thought, has a significant degree of power, and it's less partisan than the House. It's always been less partisan than the House, but it's even more -- even less partisan now because of the institution of independent senators. And that makes the check that was put into this legislation in 1985 an even stronger check on government action than when the Act was passed. Now, it's hard to do a serious assessment of Parliamentary accountability because this thing lasted for nine days. We never got past the ratification of the declaration by the House of Commons. I don't think the Senate even got to ratify it. And the committee that was set up, this joint bicameral committee had -- did not actually play their role, which was supposed to be an oversight role, a supervisory role on how the emergency was being managed by the government. So they instead morphed themselves into a after-the-fact review committee, did it I think in a rather partisan way, as I -- this is hearsay, but I understand that that may be the case. You know, if we had had an emergency that went on for 30 days, or that was extended, you would then have an opportunity to see how this worked, and I would hope that it would provide an opportunity in a longer emergency for the committee to actually hold hearings and call witnesses. Because I think it's important that there be more than just parliamentarians talking to each other and to the government, but also to get input from citizens and civil society actors as to how they are perceiving the management of the emergency. As I said, the role of this parliamentary review committee isn't clear. The statute suggests that its role is to review the exercise of powers and the performance of duties pursuant to the declaration. And instead, it's taken on this post hoc role of review, a function that's been assigned to the Commission. And so I agree -- Nomi, you had an article where you suggested that the Act be amended to clarify that the role of the committee is one of supervision of the emergency while it continues in force. And I agree with Ward, that you can't stop Parliament from doing what it, you know, what it wants to do, but this isn't an ordinary Parliamentary committee. It's been created for a special purpose. And finally, just I agree with something that Wesley Wark said the other day, that consideration should be given to assigning the role of ongoing supervision to the National Security and Intelligence Committee of parliamentarians for the reasons that he mentioned in Wednesday's panel, which were that NSICOP has adopted a non-partisan tone, which is precious these days, that it has access to classified information, and unlike other parliamentary committees, it has a dedicated secretariate and research staff. Capacity of parliamentary committees in Canada to actually do their work is a real issue. And the quality of inquiries that you get from parliamentary committees compared to the quality of inquiry that you get from a commission of inquiry are like night and day. If you can have a parliamentary committee that acts in a more serious way, that is properly supported, you might actually get more out of it, especially with an oversight role because parliamentary committees don't generally -- well, they may oversee things in a general way, but they don't normally kind of oversee a particular event, so it's quite a different role. But as was pointed out at that meeting, NSICOP lacks the ability to compel evidence because it's a committee of parliamentarians and not a real parliamentary committee. So in order for this to work, for them to play that supervisory role effectively, they'd have to be converted into an official parliamentary committee. The one accountability mechanism that we have had an opportunity to observe is this inquiry established under section 63. So just three quick observations about this. First, the government set up this inquiry under the Inquiries Act. The Act -- the Emergencies Act doesn't provide that it necessarily has to be under the Inquiries Act. The Inquiries Act has a lot of benefits in terms of the legitimacy of the inquiry because it gives you compulsory powers, and I think that is a absolute essential. So I think the Emergencies Act should be amended to provide that the section 33 inquiry would be done under the Inquiries Act. Second, I think the timeframe is too short. I agree that it shouldn't be endless. I think this has been just a huge undertaking for the Commission and for the Commission staff, the very, very broad mandate. And I think that something like at least an additional six months for the inquiry to do its work would be reasonable. I also think -- there's one other element of accountability, and I think accountability can be improved if there was a requirement or serious follow-up to the Commission's findings and recommendations, because I think it's probably common knowledge that there are far too many instances of governments, and not just the federal government, calling commissions of inquiry, gets politicians out of hot water for a while, and they can always say, "Well, there's a commission of inquiry that's examining this matter." They spend millions of dollars. They have voluminous sets of findings. They make recommendations. The government says, "Well, thank you very much and, you know, we certainly are going to study these, and we even accept them all in principle," and then they die. Meanwhile, you're functus. Once this report is issued, the commission no longer exists. So what happens to these recommendations and, you know, the findings, and whether they're recommendations about changes to the law, or changes to practice, or training, or whatever. And I think consideration should be given to follow-up mechanisms. And a good example is -- and I'm just looking for it because I have it here somewhere. Louise Arbour, former Justice Arbour did -- was asked to do an inquiry on sexual misconduct in the Canadian Forces and the Department of National Defence. And she had about a year to do her inquiry, and she had a large set of -- a large report and about 47 recommendations. The last two recommendations I would commend you to look at. One is that her recommendations be put to a parliamentary committee, that the department would show up before a parliamentary committee and explain if they were not going to adopt some of the recommendations, why they were not going to adopt them. And then she recommended something like a group, a special group that would follow the implementation of her report and have, I think, periodic reports to do that. I would go further and actually put it into the Emergencies Act that, you know, for example, requiring the government to appear before a parliamentary committee within six months to explain which recommendations it intends to implement and how it intends to implement them. And if it disagrees with some of the recommendations, it should provide reasons. And that should be followed up by a further report say within two years, because these things don't get done overnight. Maybe by the Auditor General if that's within their remit because the Auditor General is an independent officer of Parliament and has credibility. A report on the government's implementation of the recommendation, and that report should be examined by a parliamentary committee, either NSICOP or the Public Accounts Committee.


  5. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Yeah, I just -- I wanted to -- a question I have is how much -- what is the instrument that you used to do some of these things? I think everybody would -- I would certainly agree that with the point that you made about more consultation, and consultation between municipalities. In fact, as I understand it in this situation, there was a fair degree of consultation with the Mayor of Ottawa, the Mayor of Windsor, personally with the Prime Minister, other Ministers, I think. And there's always a question to me, you can put things into legislation, and not every emergency is going to involve municipal governments. The key for me is that you develop norms of behaviour and a culture of consultation. I think we actually have that, and it, to some extent it's personality dependent. And a lot of this, and there are a lot of intangibles in this too, a lot of this is about the kind of leadership you have and the relationships that were developed before the emergency actually happened that you can then pick up the phone and call on. A lot of this stuff is going to happen informally, and if that instinct, that reflex isn't there, putting something into legislation isn't going necessarily going to make it so. So I think there's a deeper issue of governance that needs to be addressed, and I wouldn't want someone to say, "well, we've put it into the law, so it's all okay", because if that's all you've done you probably haven't solved the problem.


  6. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Yeah, thanks. Just on the same point, I think history has shown that after every one of these crises, mechanisms do get put in place. So after the SARS crisis there was a -- I think a reinforcement of coordination mechanisms between the federal government’s Public Health Agency, which was created as a response to SARS, in fact, and provincial public health agencies; post-9/11 I think there was more -- there was a sort of a greater level of collaboration. And, you know, the use of either existing mechanisms or intergovernmental cooperation, or in some cases the creation of new committees, there is no shortage -- there’s a very thick infrastructure of committees of intergovernmental coordination in Canada. The question I think that has to be asked before we start creating new mechanisms is how are these mechanisms working, and where there have been failures why are they failing, and how do we fix them? So I agree completely with Kim that you need this; in fact, we have a lot of it, but it isn’t necessarily working on all cylinders, and there should be a review -- or several reviews, because it’s not just a question of national security; Public Health is a good example of how people are working together in these areas.


  7. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Yeah, I just wanted to get in on this a little bit. There are always going to be some categories of information that are absolute no-gos, and Kim just mentioned two sources and methods. But I think it’s important, and Mel Cappe wrote a piece in policy options a few months ago about this, that it shouldn’t simply be up to the government, that there should be an independent ability to adjudicate through a court to look at the balance of interests, the government’s interest, in maintaining the confidentiality of the information as against the importance of the information to the proceedings of the Commission. And there is -- I know there’s been some confidential -- some Cabinet confidence information that’s been provided to this Commission. I think this has happened at least three times before. I know it happened, for example, with respect to the McDonald Royal Commission on the RCMP back in the 1980s. And then, as Kim said, there are a variety of methods to provide information while still providing protection. It can be -- you can require people to sign confidentiality agreements. You can appoint a special counsel so that even if the parties themselves can’t see it, an independent counsel could look at the information. Court could redact part of the information and choose to make other parts of it public. But I think it’s important, you know, that the Executives shouldn’t be the sole decider of this. There should be some opportunity for an independent adjudication of these issues.


  8. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    Yeah, I would agree with that. I think it’s hard to anticipate exactly how these things are going to roll out. So I can imagine, for example, a public welfare emergency, if one were to be declared, that started to impose draconian measures on people that were limiting of rights, perhaps -- and, you know, there’s room there for a proportionality or minimal impairment analysis. So there would be a role for judicial review in a case like that. I can think of other examples of, you know, public welfare emergencies, you know, natural disasters, where judicial review really wouldn’t be a particularly relevant factor. I do think -- and I think that the kind of review that you’d have in Parliament in a public welfare emergency, it might be a lighter hand of review, you might see, you know -- you know, and if you were dealing with a natural disaster, then you would in something like a public order emergency that is more directly impinging on rights. But I agree that I think keep them all. There's a menu of things and they can be applied as needed, depending on the circumstances.


  9. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General (formerly Government of Canada)

    I don't really have a whole lot to say on this because, I mean, the question I would have is, obviously, there are some people here who think that the Inquiries Act, which is actually being used here, has deficiencies. I mean, I think -- I mean, it has some strengths relative to informal inquiries obviously. So it'd be interesting to know -- to do a comparison of, like, what are best practices with respect to Inquiries Act? What are the gaps, the alleged gaps that are being -- that are of concern to some of the participants here? And then you can do an analysis as to whether there should be changes to the Inquiries Act to make it more appropriate. I mean, because it should be presumably the vehicle that's used for future section 63 inquiries. If it can be bolstered, let's do it. I mean, a recommendation that could come out of this Commission is that the government should do a review of the Inquiries Act to see if it's actually up to the standard of best practices in inquiries legislation, but I'd have to know what the specific deficiencies are to answer.