NEW PRESIDENT AND CEO APPOINTED FOR INSTITUTE ON GOVERNANCE

Aurele Theriault, Chair of the Board of Directors of the Institute on Governance (IOG), is pleased to announce the appointment of David McLaughlin as the Institute’s new President and CEO.

“We are very pleased that David has joined our team to bring vital new leadership rooted in his extensive federal and provincial governance experience and record of public policy accomplishment” said Theriault. “The IOG’s long and trusted record of promoting good governance practices in Canada’s public institutions combined with David’s leadership experiences will serve us well to better position the Institute to serve government at all levels as well as environmental, social and governance minded companies and organizations across Canada.”

McLaughlin brings over thirty years of governance experience serving most recently as Clerk of the Executive Council, Cabinet Secretary, Deputy Minister of Intergovernmental Affairs, and Head of the Public Service in the Government of Manitoba. His full biography can be found here.

“Good governance is essential to public trust in our public institutions and democracy” said McLaughlin.  “I am delighted to have the opportunity to lead the IOG and its dedicated team at this crucial moment in Canadian public life”, McLaughlin continued. “I can’t think of a more important need at this time in Canada.”

McLaughlin was chosen following an extensive search process over six months, supported by an independent executive search firm overseen by Sarah Paquet, Vice-Chair of the IOG Board of Directors.

“We attracted a number of strong candidates and were well supported by the professional team at Boyden’s Executive Search to find the right candidate to lead the Institute at this time” said Paquet.

The Institute on Governance is an independent, not-for-profit think tank based in Ottawa whose mission is advancing better governance in the public interest nationally and internationally.

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Future of Work – A Dispersed Workforce

This is our third post in our series on Future of Work. With contribution from Ryan Androsoff, Associate at the Institute on Governance and CEO of Think Digital.

The society-wide experiment with large-scale work-from-home – and now increasingly hybrid – work arrangements benefits have focused on greater work-life flexibility, a more inclusive and diverse workforce, and reductions in commuting time.

That last one also has had an important societal benefit of reducing carbon emissions through reductions in commuter traffic (for a real life example, see this innovative dashboard from the Government of California that uses real-time data to quantify the reduction in carbon emissions by State employees who are teleworking).

There is, however, an important organizational benefit to having a distributed workforce that has not been talked about as much – disaster resilience.

This is a particularly important point for government organizations who are often entrusted with protecting the safety and security of our most vulnerable. Reliance on having access to a specific physical location to be able to do one’s job as a public servant means that critical services might not be able to be provided to the public during a time of crisis, when they are needed most.

The COVID-19 pandemic was a wake-up call for organizations – they needed to be able to still operate even when they couldn’t be together physically. Thankfully, this particular crisis took place during a time when the technology available to us meant that with the right focus and effort we were able to quickly change how our organizations worked so that they could weather the proverbial storm.

But with the rush to a back-to-the-office posture by some government organizations, are we at risk of trading away one of the great organizational resiliency gifts that the pandemic gave us?

In Ottawa, we recently saw a real-life, non-pandemic example of the benefits of a distributed workforce.

For much of this past February, downtown Ottawa was effectively shut down by the presence of the so-called “Freedom Convoy”. Large trucks and other vehicles blocked the streets of the downtown core of the nation’s capital for weeks on end, impacting both private and public transit in and out of the area. Many downtown retail businesses closed due to the disruptions, and many large employers with downtown offices (including the federal government) encouraged their employees to avoid coming into the office unless absolutely necessary. Police action in the later part of the month to disperse the convoy occupation of the downtown core turned that “encouragement” to a “requirement”.

Amidst all of this something important went largely unremarked upon – namely that the Government of Canada continued operations mostly unaffected.

This was of course because the federal government was already in a work-from-home posture for the past two years due to the pandemic and had the tools and processes in place to allow for the work of public servants to take place in a distributed way.

As a thought exercise, imagine what would have happened if a similar scenario had taken place two years earlier?

Given the large number of headquarters for federal departments located in downtown Ottawa and the pre-COVID requirement for public servants to have access to government office buildings to do their job, the short answer is that likely the work of government would have largely ground to a halt.

In fact, during this crisis the one government institution that did have to suspend its operations temporarily was the House of Commons (somewhat ironically during a debate on the emergency measures that they had put in place to address the ongoing protest). This is perhaps unsurprising since Parliament has stubbornly refused throughout the pandemic to evolve its operations to a fully distributed model and still relies on physical access to the Parliamentary precinct to be able to carry on its work.

The reality is that we will continue to face disasters, of both the natural and human-made variety.

In times of disaster citizens rely on government institutions more than ever to be able to serve Canadians. As governments consider their Future of Work posture, it is critical that they do not forget that government is made up of human beings, not desks inside of buildings.

Government still needs to be able to function even if public servants can’t access a government building.

Moving back to reliance once again on access to a specific physical location will not serve governments or Canadians well and will all but guarantee future institutional failures that are expensive both financially and reputationally.


In the coming months, the IOG, in partnership with a team of proven experts, will be contributing ideas, learnings and services to help organizations and their leaders work through the issues that arise in scaling up remote work or hybrid work environments.

We Need to Change Our Conversations on Societal Infrastructure – PART II

With contribution from IOG Fellow Dr. Sara Filbee. This article is second in a series considering the importance of societal infrastructure

Once we have agreed on what is essential for our collective wellbeing and interests, we need to determine how we will manage and invest in it.

This is a complex discussion as societal infrastructure spans private and public sectors as well as civil society. However, regardless of who is the ‘owner’, we all have a stake in it being accessible, inclusive, resilient and sustainable. Canadians are entitled to expect leaders in all sectors to play their part.

Sadly, on any one of these markers, we have significant work to do.

From a public sector perspective, the determination of how much we should invest has been constrained (at least in the public discourse) by two numbers from the public accounts – debt and deficit.

There is insufficient regular accounting for the health and sufficiency of our societal infrastructure – our collective assets. If we were running a company, we would be considered negligent and incompetent to base our decisions on two numbers from the financial statements. Countries are significantly more complex and such focus is accordingly even more problematic.

Such a narrow focus has led to what I describe as a propensity to define “strategic” by success in cutting costs in the public sector and a failure to invest sufficiently in the health of our infrastructure.


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The consequences are that we currently face an infrastructure gap that, depending on who you listen to, ranges from the billions to a trillion – and this is just the regular bricks and mortar physical assets. Not included are the investments required to meet the challenges of the climate emergency such as recently experienced across Canada nor to address the deficits that the Covid pandemic has exposed and indeed made worse. Much of our social infrastructure and community gathering places are run by small enterprises or civil society, often with limited fiscal capacity and ability to withstand the shock of the pandemic.

All sectors have a role to play and are subject to fiscal pressures which can prevent necessary investment.

Several decades of neoliberal orthodoxy, which prescribed privatization in order to capitalize on the real or perceived efficiencies and effectiveness of the private sector have led to the privatization of a significant proportion of our utilities and other similar essential assets. Here the risk is that in the drive to make publicly run infrastructure saleable in the marketplace, deals may not always have been carefully enough structured to ensure adequate incentives and assurances of the necessary levels of investment and maintenance for the long term, let alone for a future requiring a rethink about how we can sustainably coexist on this planet.

On the digital front, after several decades of short-term focus, governments are hampered by legacy systems and, often, a lack of investment in redundancy for the infrastructure that is in place.

Cyber-attacks increasingly pose a significant danger to the health and safety of citizens. Digital infrastructure is for the most part operated by large private sector (public) companies which are subject to shareholder pressures for short term profit maximization rather than their contribution to the public good or sustainability. Also unaddressed is the highly energy intensive nature of our digital technologies at a time when we are increasingly reminded of the need to reduce our environmental footprint – and quickly.

One small example of the unanticipated consequences of the delivery of essential services by the private sector was demonstrated during Hurricane Dorian in Atlantic Canada in 2019. There, residents struggled with insufficient cellular capacity due to a lack of adequate back-up power for cellular towers.

Today, people either don’t have landlines or if they do have them, they are electrically, or battery powered and thus not available in an extended crisis. Cellular service is thus the only way for individuals to connect and access emergency services in a prolonged loss of power leaving a significant hole in our emergency communications capabilities.

These all pose significant challenges. Having inclusive, resilient, accessible and sustainable societal infrastructure is fundamental to our nation’s social and economic success. A short-term focus which neglects 21st Century realities will not get us there.

We, and this means all of us and all sectors, need to put our shoulder to this wheel if the promise of our Nation is to be realized.

Future of Work – Talent Retention & Trust

With guest contribution from David Scouler, Managing Director at CultureRx. This blog post is part of a series from the Institute on Governance and our partners which examines the Future of Work. To stay up to date, follow along on our blog, or sign up for our newsletter to get exclusive access to posts before they go live!


The Thrill of Victory, the Agony of Defeat.

Those words stir up memories of the drama that unfolds during the game and the anticipation of how the sporting event will turn out.  There will be winners and of course the others.

This has relevance in the unfolding drama in the workplace today and perhaps more importantly, in the future.  The unquestioned goal is keeping, attracting, and growing critical talent for organizations to achieve victory in the pursuit of their mission and purpose.  

In public service the competition is fierce and getting more so as the private sector runs the ball down the field with their transformative workplace initiatives to win the battle for best talent.

Let’s draw some parallels. 

How does a team prepare for a big game and a winning season? 

How do the athletes prepare, physically and mentally?

What is seen and heard in the locker room?  What are the coaches doing and how is that impacting individual players as well as the team?  What does practice look like? What happens if a key player gets injured? 

You get the picture.

The thrill of victory in the workplace is marked by many similar elements.  Player and team productivity, their health and strength, understanding the strategies and tactics of “the game”, and the ability to stay focused on winning.

What constitutes winning? Building trust with the public and serving the customer effectively in the ways in which they wish to be served.

Today’s competition with the private sector is well underway and we see companies poaching key talent and providing a workplace culture that is very attractive and designed to treat employees in the ways that they wish to be treated – trusted with autonomy and celebrated with the achievement of the most meaningful results.  That looks a lot like a path to victory however the game is still being played.

Public service departments and agencies need to ask the question:

Are we up for the competition and if so, how are we preparing to win?


We Need to Change Our Conversations on Societal Infrastructure

With contribution from IOG Fellow Dr. Sara Filbee.

We are living in uncertain and challenging times in which sustainability and resilience are more important than ever before.

COVID-19 has shown us the gaps and fragilities – the antithesis of sustainability and resilience – in our society.

Reports on the climate emergency increasingly call for immediate and significant action. Putin’s declaration of war on Ukraine has irretrievably shattered the global order which has been the foundation of our economy and political relationships. In all of this, we need to take a critical (and I would suggest urgent) look at who we are as Canadians, who we want to become and what it will take to get us there.

And if we want something different, something better, we need to change our conversations and be prepared to challenge what we have previously taken for granted.

One area ripe for re-examination is our societal infrastructure, the basic physical and organizational structures and facilities needed for the operation of our country. While I am hopeful that the much-needed debate is happening in the back rooms of the Nation, these issues affect all sectors and all Canadians and thus are worthy of a broader discussion. The pandemic showed us that our infrastructure is insufficiently resilient – particularly as it serves the vulnerable in our society. Climate change and global political shocks will further challenge these structures.


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Before considering how we resource and invest in infrastructure, we must first define it.

The usual focus is on bricks-and-mortar such as the ports and airports, roads, highways, and bridges that connect us and the hospitals, health care facilities, universities, and schools on which we all depend. Infrastructure, however, involves much more and what is now necessary for a healthy, inclusive, and prosperous society is different from that of 20 to 30 years ago.

Digital infrastructure is the perfect example. To state the obvious, the pace of digitization in both public and private sectors has significantly increased through COVID-19 and access is now more essential than ever for individuals to fully participate in society. Its accessibility, inclusivity, resilience and increasingly, its sustainability, are now fundamental to our prosperity and social cohesion.

While the digital economy has been a lifesaver for many, the lack of broadband particularly in remote areas as well as the digital divide which disproportionately affects our more vulnerable populations has left many behind as both employment opportunities and the delivery of public and private goods and services have moved further online. 

There has been some recognition of this including a focus on increasing broadband accessibility. However, much remains to be done and what has already begun must be accelerated.

Beyond digital infrastructure, we also need to recognize the crucial importance of the social infrastructure that supports us in coming together in community.

COVID-19 has demonstrated the importance of social capital, the networks, and relationships between people in our society, in meeting the health care challenges of the pandemic, keeping the economy going and maintaining our mental health. Community gathering places such as libraries, restaurants and bars, gyms, arenas and curling rinks, cultural presentation spaces and so on are fundamental for the social relationships and interactions these places and spaces enable.

Many have been stressed and, in some cases, lost during the pandemic.

Lastly, and just as important (actually, more important) as the physical assets, are workers.

The majority are among the lowest paid in society and often lack benefits and security of tenure. The current levels of burn out and flight from the health care sector is just one indication that our social infrastructure is badly ailing with serious implications for all. It has become almost trite to say that standing on the doorstep applauding health care and other essential workers is easy to do – but we need to do much more.

If the moral imperative to make sure that all are able to participate fully in our society does not drive us, then sheer practicality should.

We can have the most up to date and beautiful buildings and yet, with no one to operate them, we are no further ahead.

None of this suggests an easy answer and we would be naïve to expect one. We do need however to re-examine what we consider to be the essential societal infrastructure needed for us to be the healthy, prosperous and inclusive country that we aspire to be. Only then can we start to discuss how it should be provided, resourced and maintained.

Future of Work – Hybrid Workplaces

With contribution from John Penhale. This blog post is the first in a series from the Institute on Governance and our partners which examines the Future of Work. To stay up to date, follow along on our blog, or sign up for our newsletter to get exclusive access to posts before they go live!


It’s been just over 2 years since the first cases of COVID-19 were appearing in North America.

At that time, some organizations were experimenting with telework, yet office space was still the primary focus of organizational structure.

In the federal government, along with a lot of other employers, employees were sent to work from home to slow the spread of the virus.

A lot of work has happened since then and working from home has rapidly become the new normal. Few could have anticipated the long-lasting, fundamentals changes organizations have felt as a result of the pandemic.

Return to the office has been a point of discussion since the offices were closed.  A lot of discussions have taken place about how to balance the new realities and priorities of today’s workers.  

The resulting default position for most is a hybrid workplace – a vague mid-point between the traditional office space and remote work. 

The hybrid workplace is a comfortable solution to an intractable problem.  Fully remote workers have a lot of flexibility, and it is difficult to “track them” in a traditional sense. 

Workers have too many work profiles and too many issues, constraints or wishes about what they would like. It is a daunting prospect to try to respond to all of this variation without having a detailed understanding of those (and other) variables that affect employees, management, and those the organizations serve.

This all leads to the hybrid workplace as the organizational response, but leaves us with an important question: 

Is the hybrid workplace really an answer? 

Some employees are thriving, and some are not.

Employees are suddenly liberated in ways they never expected. Organizations are learning work can happen at any time, in any place.  

What difference does it make if you are sitting in a room in a house in Ottawa, a cottage in P.E.I., looking at the beach in Florida, or anywhere in between? 

The answer is effectively nothing – except if you are expected to go to a specific building in a specific city on some expected schedule that may mean nothing to the employee. 

If an employee has a desire to relocate to another location but wants to continue working, it comes down to a simple question: Can the employee work remotely from a location that precludes physical entry to a site or does the employee change their employer to facilitate that opportunity? 

Once talented employees start to look at the second alternative, most hybrid workplans in the world will fail in a primordial requirement for organizations – finding, developing, and retaining talent. 

An employee, followed by more employees, will start to leave. 

Organizations will be either beneficiaries of new talent or donators of talent that organizations will find difficult to replace.

Keep in mind this outcome, all other things being equal, is a losing proposition for the hybrid workplace.

So, is it a simple fix of not enforcing the “return to office” for some workers in a hybrid environment? 

Likely it isn’t, as there are many factors that could be at play for employees not interested in physical office presence. Given management’s oversight role and responsibility for productivity and prudence, new tools are needed to manage.

Clearly, a laissez-faire approach may seem to be the only viable alternative: either employees are able to work remotely, or they can leave the employer and work where they have that opportunity.

Hybrid seems to be the only solution and not a solution at the same time.


This blog post is the first in a series from the Institute on Governance and our partners which examines the Future of Work. To stay up to date, follow along on our blog, or sign up for our newsletter to get exclusive access to posts before they go live!

The Emergencies Act: The End of the Affair?

The declaration of a public order emergency under the Emergencies Act was revoked a mere 48 hours after it was approved by the House of Commons and even before the Senate could vote to express its opposition or support. Thus, Canada’s national emergency ended just 10 days after it was declared.

So far, so good.

The most important things about the use of an emergency power are that it be infrequent, narrowly focused, and short-lived. As the IOG recently noted, the Emergencies Act includes significant accountability and oversight safeguards to help ensure that this is so – safeguards that were absent from its parent legislation, the War Measures Act.


Missed our previous blog on the Emergencies Act?


First among these safeguards is the need for “reasonable grounds” for declaring an emergency. Both national emergency and each specific type of emergency are defined in the Act, which gives content to this provision. It dovetails with a requirement that the government specify what the emergency is and what measures it expects to need to address it.

These requirements were duly fulfilled when the proclamation was set out in the Canada Gazette on February 15. In delineating the emergency, the government citied the blockades and threats of serious violence for political objectives, adverse effects on the economy and relations with trading partners, breakdowns in the distribution chain, and the general potential for increased levels of unrest and violence. 

The anticipated temporary measures included measures to regulate or prohibit public assembly under specified circumstances, measures to authorize and potentially commandeer essential services (the infamous tow truck initiative), authorization of the RCMP to enforce municipal and provincial laws, authorities for fine and imprisonment, and, inevitably, “other temporary measures…that are not yet known”.

Whether the cited conditions met the criteria of emergency, and whether the cited initiatives were both necessary and unachievable without the declaration will be contested in Parliament, the courts, and in the public realm for a long time to come.

As also required, the government consulted with provinces on its intention to invoke the Act.

This is not the same as giving the provinces a veto, as the government made apparent, but it did steer clear of emergency initiatives in provinces that didn’t want them.

In keeping with a further critical safeguard, the declaration was put before Parliament for debate and a vote within seven days. This was no formality in a minority House, as we may infer from the decision to make the vote a matter of confidence.  As already noted, the emergency didn’t last long enough to permit a vote in the Senate.

Since Parliament can revoke the declaration before the 30-day default period, Jagmeet Singh’s promise to keep the government’s feet to the fire regarding the ongoing need for the declaration was presumably not idle, and in fairness the government did keep Canadians reasonably informed of how it was using its powers.

Does the reasonable grounds requirement provide a basis for judicial review?

Both the Canadian Civil Liberties Association and the Government of Alberta evidently believe so, although it remains to be seen what becomes of the legal proceedings that they launched.  Would the courts enter into a substantive assessment of whether an emergency existed within the meaning of the legislation? Or would their focus be procedural, deferring to the political process on assessing the situation on the ground? Again, we’ll have to wait and see what if anything happens in the courts.

That said, since the Charter and other rights documents are not meant to be suspended by the declaration, it’s clear that alleged violations would be a matter for the courts. So presumably would any claims for compensation for loss as provided in the Act.  

The short duration of this emergency did not enable the operation of the renewal provisions or of an ongoing all-party Parliamentary Review Committee to scrutinize and report on actions undertaken in the name of emergency.

However, within 60 days of the end of the emergency the government will be required to hold an inquiry “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”. The Act doesn’t give parameters for this inquiry, but it is to be hoped that it will be public and impartial. This inquiry would have a year from the emergency’s end to report, so we may not get to the bottom of matters until then, if ever.

Does what we have seen enable us to say the Emergencies Act safeguards worked?

We can at least say the formalities were respected and that there was energetic scrutiny in Parliament and more broadly. On the core question of whether a declaration was necessary or overreach, it is hard to imagine such a mix of operational and values considerations being settled any other way than politically.

Leaders who invoke emergency powers should follow the example of Cincinnatus, the Roman leader who, given the status of dictator to defend his country in a military crisis, set it aside immediately following a speedy victory and returned to his humble farm.

Whether Canada’s contemporary leaders merit comparison with this ancient precedent is still too early to tell.


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REACTION – Team Canada Arrives Home

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.

REFLECTION – Co-Management Defined

With contribution from Sam Wells.

The process of reconciliation between the Government of Canada and Indigenous peoples has been characterized by a series of patchwork initiatives that have lacked integration.

While some of these initiatives may have carried positive impacts, institutional frameworks are necessary to ensure that reconciliation can be advanced in a manner that is consistent and equitable. One such institutional framework that offers strong potential is that of co-management.

In the broadest sense, co-management refers to the joint management of resources between two parties, often the State and a local community. In the context of reconciliation, co-management could refer to the collaborative management of resources between the Government of Canada and localized Indigenous communities.

Co-management bodies are often formally structured as councils or boards that provide equal membership and weight to all stakeholders.

Take, for example, the network of co-management authorities that work together under the Mackenzie Valley Resource Management Act in the Northwest Territories.

Environmental Assessments and land and water regulation are entirely managed by co-management structures with 50% of the representatives appointed by government and the other 50% either appointed or chosen by Indigenous organizations according to the land claim agreement that applies.

Co-management bodies can also feature a Chairperson that is jointly appointed by all members of the board via a defined procedure that gives everyone a voice.

Generally, the appointment of the Chair would require unanimous approval from all board members, and the individual appointed to the position would need to possess strong facilitation skills and a degree of neutrality.


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Co-management can be an effective tool to advance reconciliation with respect to land, water and resource development issues. It recognizes Indigenous authority through their representatives in the management of resources and lands in the decision-making process.  The powers of a co-management body must be clearly defined ideally in a statute. This has been federally in a number of instances to implement modern treaties particularly in northern Canada.

Co-management also allows for assessing traditional Indigenous by informing decision-making related to both renewable and non-renewable resource development.  Such knowledge is being recognized and applied in responding to remediating contaminated sites as well as pipeline proposals.

Decision-making that is based on traditional knowledge helps ensure that resources are effectively utilized with stewardship towards future generations.

Co-management ultimately provides an institutionalized approach to resource management that is both consistent and equitable, thus advancing reconciliation. The use of co-management bodies is much more effective in reconciling Indigenous, public and private rights than traditional federal or provincial regulatory authorities that rely solely on consultations to inform decision-making. 

Federal and provincial governments should adopting co-management structures as part of advancing reconciliation with Indigenous peoples across Canada.


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Canadian flags on poles on the side of a building in Ottawa.

REACTION: A Governance Lens on the Emergencies Act

When the Emergencies Act was invoked on February 14th, 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 20th century.