Canada’s best athletes returned to Canada from the Winter Olympics in Beijing, China, more than half way around the world. 

Demonstrating greatness, they delivered gold, silver, bronze medals and personal bests in many of the events while proudly wearing the iconic maple leaf.  Regrettably, back at home, Canada’s good governance performance was far from any personal bests or medal standing.

Canadian athletes are the epitome of excellence, discipline, hard work and resilience – devoting their lives to perfecting their talent through personal sacrifice, financial strain, rigorous training and often-through injuries. 

In addition to high performance training, athletes had to practice resilience on a new level by adapting to public health restrictions, finding alternative ways to train and prepare for international competition.  Athletes embraced vaccinations, mask mandates, self-isolation protocols, and testing during their journey to the Olympics to represent Canada.

By contrast, Canadians and their governments seem to have lost a sense of team, resilience, civility, duty as well as individual and collective responsibility.  

From local, provincial and federal governments – and their elected leaders – there was a fundamental breakdown in coordination and application of the rule of law.  If good governance were an Olympic sport, Canada would be at risk of not qualifying to compete during the almost three weeks that protestors occupied downtown Ottawa and blocked trade and traffic at our borders. 

Canadian athletes are true professionals and committed to excellence and doing their best in they sports they have chosen. 

With the recent revocation of the Emergencies Act, Canadians and their governments would do well to take a page our of our athletes Olympic training approaches – shake off a bad performance and get back to mental, physical and personal excellence, team, and wear the maple leaf with pride.

When the Emergencies Act was invoked on February 14^th, this was the first-ever invocation of that legislation since its enactment in 1988.

The Emergencies Act is the modernized offspring of the much sterner War Measures Act (WMA), which saw Canada through two world wars and the 1970 October Crisis. When we compare the two acts, we find that many of the differences reflect evolving standards for core principles of democratic governance, particularly those relating to accountability and the conditions for the legitimate exercise of state power.

Both acts were grounded it in the authority of the federal government to legislate for the peace, order, and good government of Canada.

“…no amount of process will legitimize what citizens regard as a bogus “emergency”.”

During its time, the WMA served some useful purposes, including management of a modern wartime economy in the 1940s. It also made possible some of the ugliest incidents in Canadian history, including the dispossession and internment of Canadians during both world wars on the sole basis of their ethnicity, and the arrest of hundreds of innocent citizens in 1970.

In the aftermath of the October Crisis, which included a Royal Commission into activities of the RCMP, it became clear just how out of step the WMA was with contemporary standards of public governance – particularly in the absence of controls to ensure that the exercise of extraordinary powers was legitimately necessary as well as mechanisms to provide oversight and accountability.

The Emergencies Act was intended to address these concerns, while expanding the range of emergencies beyond war to international emergencies, public welfare emergencies, and public order emergencies.

Legitimate state action in a democratic society has both procedural and substantive elements. Following accepted processes is critical, but since emergency legislation essentially legalizes what is normally illegal and overrides jurisdictional boundaries, no amount of process will legitimize what citizens regard as a bogus “emergency”. The first test for legitimate use of the Emergencies Act is that it be rare.

On the critical question of whether an emergency actually exists, the contrast between the original WMA and the Emergencies Act is stark. Section 2 of the original act, under the heading “Evidence of War”, stated that a proclamation by the King or the Governor in Council (i.e., the Cabinet) “shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists.”

 In other words, the only test for the existence of a crisis was the government’s say so.

By contrast, the Emergencies Act authorizes the declaration of an emergency where the government believes “on reasonable grounds” that an emergency as defined under the act exists and provides a statement of what constitutes the emergency and what measures are expected to be necessary to address it. The measures must be temporary, with a default 30-day sunset (120 days in the case of war), and the requirement of reasonable grounds applies to any extension.

As for process requirements, at their heart these relate to the rule of law, which in Canada is no longer simply a matter of Parliamentary enactment. The first emergency powers listed in 1914 were “censorship and the control and suppression of publications…” and “arrest, detention, exclusion, and deportation”. Arguably, our political culture at the time was more attuned to public order than to an expansive understanding of individual rights. All that has changed with the Charter of Rights and Freedoms.

The preamble to the Emergencies Act states explicitly that the temporary measures enacted under its authority would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must “have regard to” the International Covenant on Civil and Political Rights, “particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency”. The legal import of this preamble might be debated but the political and moral expectations are clear.

Another, increasingly critical aspect of legitimacy is what we call voice – the expectation that power shouldn’t be exercised without giving stakeholders a meaningful say.  It is a matter of voice as much as the rule of law that Parliament must approve the government’s declaration within seven days.

There is also the requirement that the provinces be consulted.

In formal terms a right to be consulted is not a right of veto, but we have learned from Charter jurisprudence that it can entail important procedural requirements, and in the context of Canadian federalism it is a powerful moral, or at least political, force.

The Emergencies Act is also marked by significantly heightened standards of oversight and accountability.

The requirements for parliamentary supervision and debate are particularly critical.

The renewal requirements – which include reviewing each of the orders made under the declaration for continued necessity as well as going back to Parliament – create a significant break on possible abuses, especially in a minority House. Even where the government has a majority, the renewal requirements create opportunities for parliamentary scrutiny, and possibly judicial review.  

The requirement that the responsible minister pay reasonable compensation to anyone who suffers loss, injury, or damage as a result of actions conducted under the declaration may also be regarded as a significant accountability measure that will almost inevitably be brought into play.

Perhaps the most significant oversight mechanism is the provision for establishing an all-party Parliamentary Review Committee to scrutinize the exercise of authorities under a declaration.

While such a committee would conduct business in camera, it would report to Parliament every 60 days through the course of the emergency. There is also the requirement, admittedly without specified parameters, that within 60 days of the end of the emergency the government cause an inquiry to be held “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”. Such an inquiry would report to Parliament within a year of the emergency’s end.

Since this is the first time a government has invoked the Emergencies Act, it remains to be seen just how effectively most of the safeguards described here will work and how robust a role parliamentarians and the courts will play.

The very fact of their inclusion in the legislation is a testament to a positive evolution in Canadian governance over the course of the 20^th century.

With contribution from Karl Salgo.

If your head is still reeling from the speedy ouster and (interim) replacement of Conservative Party of Canada Leader Erin O’Toole, you’re not alone.

While the Prime Minister may be thankful to the Conservatives for yet another seemingly gratuitous gift, he and the other party leaders are probably also thanking the heavens that such a thing could not happen to them.

The ouster took place under CPC caucus rules arising from the 2014 Reform Act, which received strong all-party support at the time of its enactment and applies to all parties to this day.

Breaking party ranks on a parliamentary vote is a rarity in Canadian politics and there have been multiple proposals to give MPs a greater degree of independence. The Reform Act was an attempt to re-empower individual MPs, who were widely perceived to be groaning under strict party discipline from their respective House Leadership.

In its watered-down final form, the Reform Act required each party caucus in a newly elected Parliament to vote on four questions regarding whether caucus:

(1) determines its own membership, (2) chooses its own chair, (3) can trigger a leadership review, and (4) can choose an interim leader.

The last two were obviously in play in the Conservative caucus this week. It should be noted that the capacity of caucus to oust a leader is not novel in the Westminster system, as Margaret Thatcher knew only too well, and as Boris Johnson presumably knows to his great anxiety.

What’s interesting here in Canada is that, since 2015, only the CPC caucus has given itself these powers.

The Liberal caucus has actually been coy about the votes themselves, citing caucus secrecy, and we can’t be sure that they’ve always been held, legal requirement notwithstanding.

It’s easy to see why leaders might not be crazy about their caucus taking on these kinds of powers, although they haven’t altered voting habits to any discernible degree. But accountability is a core requirement of democratic government, and there’s no such thing as too much accountability, is there?

Or is there?

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The Reform Act was passed in the wake of a significant number of other initiatives in the early 2000s to improve accountability across various fronts, in both the public and private sectors. In the Government of Canada, the most comprehensive was the Federal Accountability Act, which among other things created a host of new laws on the behaviour of public officials, elected or otherwise.

Perhaps the immediate question as we commiserate (or not) with Mr. O’Toole is whether accountability might not require something from those who hold others to account.

Is there not arguably an implied need for those to whom account is rendered to exercise some form of due process, even if it be within the confines of their own judgment? If accountability is to mean anything, should evidence not be weighed equitably, prudently, and without regard to conflicting interests?  

Of course, in politics the electorate is famously always right, and there would be both impracticality and irony in a bottomless cycle of accountability for accountability.

Perhaps there are instances in which we might think twice about adding to the list of accountabilities – as I’m sure Justin Trudeau and Jagmeet Singh would be prepared to tell you.