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?

Our course registration for Winter 2022 is now OPEN! Continue your learning plan with the IOG today!

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.

The Treasury Board got a new Secretary.

Graham Flack comes to Treasury Board via Employment and Social Development Canada, where he’d been Deputy Minister since 2018. Flack was previously DM of Canadian Heritage, following a career that included several senior positions in the Privy Council Office, and is widely considered one of the more thoughtful members of the senior public service.

He will need to put that thoughtfulness to use to support the many demands the Prime Minister has made of Treasury Board President Mona Fortier in his December 2021 mandate letter. Many of these expectations – and many more challenges besides – relate to the governance issues under TB’s purview.

Treasury Board has several key responsibilities, including its roles as the government’s management board and as the employer for most of the public service.

In those capacities, it has a lead role for both how the government operates and how the public service does its job. You can’t effect vast change in a rapidly evolving landscape with a static public service.

The good news begins with what sounds like a positive tone with public sector unions, as Minister Fortier is called upon to negotiate with unions in good faith and to work with them on a coordinated plan for the future of work within the public service.

This would include a Public Service Skills Strategy, among other efforts to modernize the public service for the 21^st century. What that workforce will look like is not specified, although there will be heavy emphasis on diversity and inclusion as well as improved data, IT, and digital capacity. This meshes well with the Clerk of the Privy Council’s recent report on the public service, which called for precisely such a skills strategy, as well as “flexible and equitable” post-pandemic work arrangements.

All this is fine and needful, but it doesn’t amount to much more than a start on public service reform and the broader matter of better public sector governance for the 21^st century.

First, we might ask what is meant by flexible and equitable work arrangements.

So far, TB has opted against a one size fits all approach, leaving individual organizations to sort out what works for their mandates and needs. That is at least a little shrewd, since TB would hardly want to own a definitive model at this point in the game.

But this is the Government of Canada we’re talking about: TB will certainly keep a close eye on what is going on and won’t hesitate to intervene if it doesn’t like what it sees.

Frankly, the country’s industrial age, hierarchical, and rules bound work force needs a lot more than the capacity to work virtually. The normative mindset of the public service is still defined by the culture of compliance that was denounced by, of all people, the late Auditor General Michael Ferguson.

Ferguson wasn’t against compliance – what accountant is? He was referring to a culture of sticking to the blame-avoiding safe harbor of following rules rather than innovating and taking rational risks. This culture was epitomized by the Federal Accountability Act, which addressed a host of behavioral problems that didn’t exist, and which the Trudeau government has never lifted a finger to dismantle.

It is a culture reinforced by inadequate performance metrics and the fact that public servants are not accountable for results, nor could they be given the limited trust and authority that’s given to most of them.

Remote working arrangements may help to push long-overdue changes, like faster, flattened decision making and performance assessment that turns more on genuine productivity as opposed to just showing up and participating in processes.

Significant governance changes are also needed to fully unleash the capacity of digital technology to meet evolving citizen expectations.

Politicians and public servants have been talking about improved horizontality and “whole-of-government” approaches for decades, but we still struggle to dismantle or work around the silos of the classic Westminster system.

This is not to be dismissive of the rules around reporting and accounting to Parliament, or the broader principle of ministerial responsibility. And digital and data governance raise privacy and security issues that aren’t easy to address. While successive governments have made progress, including through the appointment in multiple departments of chief data officers, there is a long way to go.

In practice, horizontality has been approached largely through a more powerful center. And the impact of 24/7 media and a hostile twitter mob have gotten in the way of efforts to be more open with information and less hierarchical in decision making.

The bottom line is that for government to evolve it needs to be less self-regarding and more focused on the citizens it is supposed to serve.

It’s a tall order, Mr. Flack, and we wish you and Minister Fortier the very best.