Victor V. Ramraj
Victor V. Ramraj spoke 5 times across 1 day of testimony.
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Victor V. Ramraj, Prof. (Law – University of Victoria)
Merci, Nomi. Bonjour, monsieur le commissaire. Je m’appelle Victor Ramraj et je suis professeur de droit à l'Université de Victoria. At the end of this full week of roundtables and at the end of this Commission, I thought it might be helpful for me to step back a little bit and situate the Emergencies Act in its comparative context. I have three points, one on the difference between constitutional and statutory emergency powers; two, briefly, on Article 4 of the International Covenant on Civil and Political Rights, the ICCPR; and third on the question of interjurisdictional coordination, which you would have heard about at length yesterday. On that note, I’m afraid although I did have a chance to review the transcripts of earlier sessions this week, I was on the plane yesterday, so I missed reviewing that transcript. So apologies if there’s some overlap. My first point is this; Canada’s Emergency Act is distinctive in being a statutory rather than a constitutionally entrenched emergency powers regime. In many countries around the world, emergency powers are constitutionally entrenched, and emergencies are declared and governed directly by the constitutional regime. These constitutions, on the French model, typically involve and provide for the derogation from or suspension of constitutional rights and set out limits on that derogation or suspension. In the Canadian context, the Emergencies Act is not constitutionally entrenched. It makes no provision for limitation of or derogation from constitutional rights and remains fully subject to the Charter. This is a critical feature in Canada’s emergency powers regime. It means that the Act remains subject to the Charter and its core principles, including the principle of proportionality derived from section 1. Second, the need for emergency powers and the principle of proportionality itself are recognized in international law under such instruments as Article 4 of the International Covenant on Civil and Political Rights. Article 4 recognizes that there will be exceptional circumstances when states require extraordinary powers, but it also sets limits on those powers, particularly on the extent to which states can derogate from rights, if they can at all. Some rights, such as the right to life, the right to be free from torture, a prohibition on slavery and others; including, I should add, a prohibition on cruel, inhuman, and degrading treatment are completely prohibited and they are known as non-derogable rights. Other rights can be derogated from or limited only, in the wording of the ICCPR, “To the extent strictly required by the exigencies of the situation,” provided that they are consistent with international law and do not involve discrimination. And the principles set out in international law resonate with the principle of proportionality and minimal impairment that have been elaborated on in Charter jurisprudence. My third point concerns the question of interjurisdictional coordination. There are, of course, serious questions as to whether the categories in the Emergencies Act needs to be updated to reflect the reality of 21st Century threats, notably cyberattacks and the sorts of threats to critical infrastructure that were highlighted by other experts this week. I won’t comment on those issues, nor will I speak on the factual issues before the Commission; however, a key question common to many federal states is whether, in the face of a national emergency, the central or federal government has the tools it needs to coordinate an effective interjurisdictional response. In Canada that response might involve four levels of government; federal, provincial, municipal, and First Nations, as well as, potentially, international governments and agencies. A comparative survey of Westminster-style constitutions shows us, at one extreme, that some central governments have the power in an emergency to suspend the operation of provincial or state governments entirely, and here, with the assistance -- or in discussion with my PhD student, South Asian constitutions speak of constitutional machinery failure, a Colonial-inspired term, and this -- the provisions of these constitutions allow the central or state government to suspend the operations of states within the union. This is, of course a deeply contentious tool and a political tinderbox. On the other hand, when confronted with some national emergencies, for example, widescale political violence, a 9/11-style attack, or a climate disaster, a high degree of coordination may be needed on an urgent basis. In this respect, the Emergencies Act is a relatively weak and deferential instrument. It acknowledges the possibility of a national emergency without providing the means to coordinate effectively across multiple levels of government. It does require consultation, but consultation is not coordination. Of course, any centralized response must also be subject to effective accountability mechanisms, which we’ll come to later in the session, but a genuine national emergency will require an effective coordinated response, as well as an effective and appropriate accountability mechanism. I’ll have more to say on this point later, but let me stop here for now and yield the floor to my colleagues.
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Victor V. Ramraj, Prof. (Law – University of Victoria)
Sure. Thanks, Nomi. Maybe like to try to tie together a couple of these points, the question of economic emergencies and Professor Scheppele’s idea of pre-emptive mechanisms to deal with emergencies. It seems to me that emergencies aren’t easily cabined. I think that Professor Scheppele said that emergencies don’t have the shape of the laws regulating them. I think in some ways, different kinds of emergencies often bleed into one another and it’s important, I think, for the Commission to acknowledge that this emergency takes place against the backdrop of a global public health emergency. And so sometimes you have other kinds of situations, public health emergency that leads to a public order emergency or an economic crisis that will lead to a public order emergency. So how, then, do we form institutions, create institutions that can pre-empt, in a coordinated way, the emergence of these more serious emergencies? So around the same time that this Commission has been doing its work, or slightly before, of course another commission, the Lancet Commission, which describes itself as an interdisciplinary initiative encompassing the health sciences, business, finance, and public policy. It’s a group of experts that were looking at the COVID-19 pandemic and how it emerged. And their conclusion was that -- if I can refer to it, that, “The staggering death toll is both a profound tragedy...” -- I’m quoting, “...and a massive global failure at multiple levels.” So I think it’s important to acknowledge that had the WHO had the -- worked as it was supposed to; had, for instance, Taiwan been able to signal that there was a virus that was emerging out of China, but because of its exclusion from the WHO there were issues; and had there been international coordination, intergovernmental coordination at that early point, we never would have had this emergency, right? So emergencies are often interconnected. So I’d like Professor Scheppele’s idea that we need standing institutions that have the ability to coordinate so that we can prevent the emergence of these kinds of situations in the first place.
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Victor V. Ramraj, Prof. (Law – University of Victoria)
I think it might be helpful to think of three dimensions of accountability. Accountability for what, to whom, and when? The answers to these questions, I suggest, depend on the nature of the power that's exercised, or not. Consider, for example, the declaration of an emergency. Here, we have at least two institutional forms of accountability, three if you include this Commission. The other two are accountability to Parliament, either through parliamentary debate to confirm or revoke the declaration; and accountability to various parliamentary committees. These forms of accountability are typically synchronise with the emergency itself. We also have accountability for the declaration through the courts, either in the course of an emergency, ideally, possibly on an expedited basis, or after the fact. If, however, our focus is not on the declaration of the emergency, but abuses or rights violations in the course of its implementation, we might look for accountability, either in the courts, or, depending on the source of the alleged abuse, in complaints mechanisms within, say, a police force, or in the case of security, intelligence, through the National Security and Intelligence Review Agency. But let me raise another aspect of accountability in times of crisis. When a crisis materialises, governments might be held accountable after the fact, either for overreacting to the crisis or failing to act to prevent or mitigate it. We can find examples of both kinds of accountability. In terms of overreacting, and I think Professor Kent Roach gave a really good catalogue of Commissions of Inquiry, the Ipperwash and Arar commissions mentioned by him are examples of government overreaction leading to tragic consequences. As for the failure to prevent or mitigate a crisis, the Air India Commission in Canada and the 9/11 Commission in the United States are apt examples. I have to say that after following the Commission's work, I'm still not immediately clear on what kind of accountability we're seeking at this Commission. Is it one or the other or both? Is it that the government overreacted by declaring the emergency and enforcing it as it did, or is it that the government did not do enough or did not have the appropriate tools to prevent or mitigate the emergency in the first place? The answer to this question matters because it determines the answer to the question accountability for what? If the government overreacted in declaring the emergency, the appropriate accountability mechanism might be tighter forms of parliamentary or judicial oversight, or tweaks in the way this Commission conducts or subsequent Commissions conduct their affairs. If, however, the problem is that the government to prevent or mitigate a crisis, or, as Professor Leah West suggested on Wednesday, that there was a failure of federalism, it's less clear to me what form accountability should take. Commissions of Inquiry can, of course, urge or recommend legal reforms, and I hope that this Commission might add its voice to those calling for more effective, and perhaps following Kim, pre-emptive interjurisdictional coordination.
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Victor V. Ramraj, Prof. (Law – University of Victoria)
This is more to reiterate a question that I think you were alluding to, and let me put the point hypothetically. So going back to Wednesday’s session and Professor Leah west’s suggestion that this is might be a federalism failure, the question that I have, and I don’t have the answer to, is what form of accountability can there be for inadequate interjurisdictional coordination? I think that’s what we’re getting at, in fact, when we’re talking about these subpoena powers because if the problem is a failure of interjurisdictional coordination it’s not clear to me how you match an institutional form of accountability, and we saw that with the Lancet Commission. So that, to me, is the essence of the problem.
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Victor V. Ramraj, Prof. (Law – University of Victoria)
Again, I think emergencies tend to bleed into one another. And so the economic factors, you can imagine a very serious economic emergency where millions of people are losing jobs, or losing their livelihoods, that kind of emergency can transform into a public order emergency. So I think in that sense it needs to be taken into account. But again, I think it's hard to say that emergencies don't morph into other kinds of crises, and I think this public health emergency that's transformed into a public order emergency is a perfect example.