Nomi Claire Lazar

Title
Professeure titulaire (Prof.)
Organization / Affiliation
Public and International Affairs – University of Ottawa

Nomi Claire Lazar spoke 53 times across 1 day of testimony.

  1. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Okay. Thank you very much, Commissioner. Bonjour à toutes et à tous, collègues canadiens et canadiennes. Nous avons aujourd’hui six experts avec nous couvrant le droit constitutionnel, l’appareil gouvernemental et les pouvoirs d’urgence au Canada et dans une perspective comparative. Je m’appelle Nomi Claire Lazar, professeure titulaire à l’Université d’Ottawa, membre du Conseil de recherche, et aujourd’hui, modérateur. And joining us are: Mr. Ward Elcock, former Director of CSIS and former Deputy Minister of National Defence; Professor Hoi Kong, who is Rt. Hon. Beverley McLachlin Professor in Constitutional Law at University of British Columbia; Mr. Morris Rosenberg, former Deputy Minister of Justice and Deputy Attorney General of Canada, as well as former Deputy Minister of Health and Foreign Affairs, and Member of the Order of Canada; Professor Victor V. Ramraj, who is Professor of Law at the University of Victoria; and joining us online we have Karin Loevy -- Professor Karin Loevy, who’s head of New York University’s JSD programme and a researcher in the Institute for International Law and Justice; and Professor Kim Lane Scheppele, who is Laurance S. Rockefeller Professor at Princeton University School of Public and International Affairs, and the University Center for Human Values. Thank you all for your assistance with the Commission’s important work. Since laws general rules are designed for the general case, exceptional events will, from time to time, call on governments to act in exceptional ways. Emergency powers to confront such situations are as old as constitutional government and found in every jurisdiction. Codified emergency powers, like those contained in Canada’s Emergencies Act, bring exceptional measures under the rule of law. Our panel’s task is to raise questions around the Emergencies Act’s threshold, powers, and accountability mechanisms, and as we do so, it’s wise to keep in mind the caveat that humility and caution should inform amendment to the Act. Changes to any legislation, especially when reactive, can have unintended consequences, particularly where that legislation specifically applies to inherently unpredictable occurrences. There’s no getting emergency powers just right because a threshold flexible enough to deal with some future event may invite abuse in some other future occurrence or circumstance. So any threshold that the Commissioner may propose, and Parliament may debate, may be both too high and to low for what the future holds. This necessary ambiguity makes formal legal checks and balances critical, but we must also bear in mind that courts across the world tend to accord governments wide scope in an emergency, finding that decisions on emergency are political and beyond their scope. This makes is all the more critical that emergency legislation also engineer informal constraints on power which intertwine with legal constraints, advance incentives and disincentives to promote due reflection and responsible action. So the formal constrains under the current Act includes references to the Charter, the International Covenant on Civil and Political Rights, along with the requirement that executive actions taken urgently gain legislative approval after the fact. Informal constraints include the necessity for publicity and for a Commission such as this one. We now have an opportunity to look at ambiguities and the threshold and the accountability mechanisms in the Emergencies Act to consider what worked well and what could be improved should this legislation be needed again in the future. Cette conversation est importante, car s’il n’y a pas de solution parfaite, il existe certaines des approches meilleures et pires. Alors que nous entamons notre première heure avec des questions sur la CEA pour déclarer une urgence d’ordre public, j’invite le public à se référer aux articles 3 et 16 de la Loi pour référence, au besoin, car la CEA est assez complexe. Un lien est disponible sur le site web de la Commission. So we’ll start off with Victor.

    36-007-18

  2. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. Hoi?

    36-013-27

  3. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you, Hoi. Morris?

    36-016-16

  4. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you, Morris. We're now going to turn to Kim, who's joining us online.

    36-019-18

  5. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you, Kim. Karin?

    36-024-24

  6. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Yes.

    36-024-28

  7. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you, Karin. Ward?

    36-028-20

  8. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. I wondered if any of you might like to address the question of economic emergencies? So this is something which came up in the course of the testimony. And certainly our comparative emergency scholars will know that economic emergencies are certainly conceived of and have been declared and responded to in other jurisdictions. So I wanted to ask whether any of you have any thoughts on this question of economic emergency, whether it fits under the existing framework somewhere, whether it’s something that ought to be contemplated in some future version of the Emergencies Act? Are there any thoughts or reflections there? Morris?

    36-031-15

  9. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks very much. Victor?

    36-034-17

  10. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks very much, Victor. Kim?

    36-036-02

  11. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Commissioner, do you want to...?

    36-037-14

  12. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    And I guess that’s part of the issue with emergency legislation is that, you know, we can’t really say in advance; is the next thing going to be this, or going to be that? And so that’s our challenge. Kim, did you want to respond?

    36-037-25

  13. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    That’s a great clarification. That sounds exactly right to me. So as we now move into our second hour, we’re going to turn our attention to questions of accountability, which of course are entwined with questions around the threshold. So accountability is a necessary condition for trust in representative government, it thus sits at the very heart of our political system. So in day-to-day governance, there are various layers of accountability; policies undergo public consultation, bills are debated through multiple readings, Parliamentary committees invite diverse perspectives and deliberate, and the press and the public scrutinize the process, courts review, and ultimately we hold elections. But emergencies challenge some of these usual mechanisms. Urgency necessitates speed and decisive action, shifting deliberation to after a decision has been taken, and earlier types of emergency powers had historically sidestepped checks and balances entirely. Often contested claims of secrecy exacerbate these conditions. Some parts of the Emergencies Act facilitate legal accountability, including the objective standard that the Governor-in-Council have reasonable grounds to believe emergency measures are necessary, but many provisions of the law, including this Commission, enable public accountability that includes but also goes beyond legality. Legality alone doesn’t determine the rightness of state action. Promise of public accountability is important in itself, but it also serves as an informal constraint on government action. Whatever government chooses to do, they know they will be held accountable, and there’s evidence that governments behave with greater caution when public scrutiny is inevitable. But how well that works depends in significant part on the good design of accountability mechanisms; they have to work in order to work. Our panellists will now consider how legal and public accountability provisions in the Act might be tightened for the future, mindful, in particular, of the challenges posed by government claims to secrecy. What are the appropriate functions, strengths, and limits of the Act’s current accountability mechanisms; what mechanisms might maximize openness with respect to classified information, Cabinet secrecy or solicitor/client privilege, all in the service of public accountability and public truest. So here we’re going to begin with Karin.

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  14. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Karin?

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  15. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Karin, could I ask you to just slow down a little bit ---

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  16. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    --- for the interpreters? Thank you.

    36-043-01

  17. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. Just a reminder to everyone to try to stick within your five minutes while also slowing down for the interpreters. So, Hoi, take it away.

    36-044-02

  18. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much, Hoi. Kim?

    36-046-14

  19. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks, Kim. Victor?

    36-049-03

  20. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you, Victor. Ward?

    36-051-06

  21. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    I wonder, Ward, if -- before we turn to Morris, I might ask you -- so I know at some point someone had floated the idea of using the NSIRA or the machinery within NSIRA as an overview -- oversight mechanism, pardon me, with respect to solicitor/client privilege. And I wondered whether you might want to just briefly comment on that before we move on?

    36-053-04

  22. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. Morris?

    36-054-03

  23. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much, Morris. So I would just invite any of the panelists who might want to respond to the comments made by your co-panelists at this juncture. Ward?

    36-061-21

  24. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Karin?

    36-062-21

  25. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. Anyone else?

    36-063-14

  26. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. I actually -- I think I'm just going to -- I'm going to -- before I go any further, are there questions that you still have, Commissioner, that we haven't addressed yet?

    36-064-15

  27. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    All right. So I'm going to throw one thing out there, which came -- I can't remember, it came up in the course of a conversation at some point. So what would happen -- so we -- you know, we've discussed how this Commission of Inquiry does its -- or fulfills its function in part by sitting like a threat over the head of anyone who is going to use the Emergencies Act. So they know if they're going to use this legal instrument that everything they've done is going to be carefully scrutinised thereafter. But we saw that the Premier of Ontario, for example, opted to make use of parliamentary privilege and to refuse to give evidence before the Commission. And so I wondered if we might want to contemplate what might happen if in some future scenario the government who made use the Act made use of parliamentary privilege and refused to give evidence before the Commission? Ward?

    36-064-22

  28. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    I think what you've said is, so far, is very wise. Kim?

    36-066-01

  29. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    So I do think, and correct me if I’m wrong, that this Commission does have the power to subpoena, but while legislature is in session there is a Parliamentary privilege that allows people to refuse to turn up. Did I get that right, Commissioner?

    36-067-07

  30. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    All right. So we have about 10 minutes left, so I will just ask if any of the panellists want to take two minutes for some final thought or what you consider to be the key takeaway. Does anyone have any final thoughts? Victor?

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  31. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Kim?

    36-068-05

  32. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks. Morris?

    36-069-04

  33. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. Anyone else? Hoi?

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  34. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    All right. Well, on that note, perhaps we’ll take our break and -- oh. Oh, sorry. Karin, go ahead, I missed your hand.

    36-070-16

  35. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks very much, Karin. So we’ll take our break now and then turn to questions from the parties.

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  36. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Noon.

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  37. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    High noon.

    36-071-25

  38. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much, Commissioner. So we’ll now turn to some questions from the parties. So the first question is; how would you respond to the suggestion that redacted information before the Commission limits the power of the Commission to exercise its accountability function, particularly with respect to sections 37 and 38 of the Canada Evidence Act that refer to public interest immunity and national security. Would anyone like to address that? And also in relevance -- that’s relevant. Ward, I feel like you have a thought.

    36-072-09

  39. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Weighing and balancing priorities and norms, I suppose. I see Kim has her hand up.

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  40. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks. Morris?

    36-074-19

  41. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. On a related question, so the Government did give this Commission access to inputs before Cabinet, including a partial disclosure of information subject to Cabinet confidence, and of course they waived Parliamentary privilege. So are there ways, are there mechanisms that you panelists can think of to make this sort of thing a precedent for future commissions? Apparently not.

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  42. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Right. So this is an example of public accountability, even in those areas where full legal accountability might not be possible. Karin, I see you have your hand up.

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  43. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    You’re set ---

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  44. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. All right. The next question. Does it make sense to have the same accountability mechanisms regardless of the kind of emergency? So we have certain emergencies that are politically tinged, and other ones which are -- I don’t want to say apolitical, because I don’t think there’s ever an apolitical emergency, but we could say less centrally political. Does it make sense that the Act has the same accountability mechanisms for all these kinds of emergency?

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  45. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    I suppose that’s one advantage of having different kinds of accountability. Morris?

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  46. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Kim?

    36-078-28

  47. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. Okay. The next question is a bit of a rephrasing or a regrouping around a topic we briefly touched on earlier. So one way of understanding the -- so we were talking earlier about economic emergencies that begin as economic and economic emergencies that arise from, for example, public order circumstances. So we might think of this as an economic emergency versus a question of economic security. So the question is, should the impact on the economy be considered in declaring a public order emergency. So is the impact on the economy an aspect of a threat to national security? Victor?

    36-079-13

  48. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Hoi?

    36-080-07

  49. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thanks. Kim?

    36-080-19

  50. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    I think that's a very interesting and wise way of approaching this. So the next question -- oh, I'm sorry. Karin, go ahead.

    36-081-09

  51. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you. Okay. So now we turn to a fifth question. So what about suggestions -- so we've been talking a lot about how we might be able to tweak the Emergencies Act potentially to strengthen accountability, but what about the turning our attention to the Inquiries Act, for example. So if we want to strengthen the commission or any future commission's ability to do its work and to hold some future government to account, might it make sense for us to look at -- or to encourage a look at the federal Inquiries Act, which has a lower -- or which has fewer powers than, for example, provincial inquiries legislation. So do we have thoughts there in terms of potentially strengthening the Inquiries Act at the federal level?

    36-081-18

  52. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Kim? Your mic's off.

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  53. Nomi Claire Lazar, Prof. (Public and International Affairs – University of Ottawa)

    Thank you very much. Any other thoughts? All right. Then on that note, I'll turn things back over to M. le commissaire.

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