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The declaration of a public order emergency under the Emergencies Act was revoked a mere 48 hours after it was approved by the House of Commons and even before the Senate could vote to express its opposition or support.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: Convoy of Confusion

During the last weekend of January 2022, a convoy descended on Ottawa to protest mandatory vaccinations for truck drivers travelling across the Canada – United States Border.

The most troubling aspect of the “Truckers Convoy” for Canada and its democratic institutions is the potentially long-lasting effects of declining confidence in public institutions ability to respond to health and safety challenges and civil disobedience under the rule of law.

The Ottawa Police services are working to reassure the public that there have been no fatalities, injuries, or significant damage to property.

However, residents continue to be “under siege” and downtown business, already burdened with the stress of the pandemic, are forced to close.

Emerging evidence of foreign money and coordinated blockades disrupting trade and public services to citizens are creating a highly flammable environment.

With no visible end in sight, provincial and federal politicians continue to take to the microphone with calls of both support and condemnation of the actions of the protestors.

The public remains dissatisfied – why?

What we are seeing is a visible lack of coordination among law enforcement agencies and their elected leaders.  Public trust comes with public confidence.

As a public, we assume enforcement agencies are preparing their operational plans and understand why details of such plans are not public.

We also assume that all orders of government are working together to ensure a peaceful and permanent end to this occupation.

However, public officials at any level of government have not referred to any semblance of a plan. Further troubling is that the Ottawa Police Service seems to be on their own with no obvious evidence of others standing by to assist in a coordinated fashion. Seven days in, there is a growing unease that these assumptions may be misplaced.

It remains unclear whether, when and how the occupation will end. 

The mayor points to the police. The police are now signalling the situation is escalating in its complexity to resolve with each passing day.

With no sense of ‘what comes next’, growing anxiety among citizens and the business, community is beginning to erode trust in our institutions.

With an already growing erosion of public trust in western democracies, what are the operational leaders doing to assure the public that there is an end in sight?

Without a public plan, we must ask ourselves – what is happening in the background?

To re-establish trust and confidence, there needs to be a sense of organization and structure among public officials.  This could involve the mayor asking the Chief of Police to work with federal and provincial law enforcement agencies to establish an inter-agency working group. The working group would help ensure information, planning and coordination among these agencies was clear, efficient, and timely.  The details of such need not be communicated but the request to ‘organize’ should be.

The mayor could also call on the other levels of government to support the inter-agency working group by forming an ad-hoc intergovernmental committee involving himself, and relevant federal and provincial ministers. 

Typically, this body would ensure elected officials both receive the same information at the same time as well keep their internal decision-making processes engaged as necessary as the issue evolves.

Next, there needs to be one official spokesperson. Support spokespersons can be designated from each level of government to speak on specific aspects, but it needs to be coordinated.

It’s important for elected leaders to know who’s on first and who gets to speak to what and on what issues.  For the most part, this often results in a boring talking point that “I am aware of the issue and my officials are monitoring closely and we have assured local law enforcement that we are ready to support as circumstances warrant.”

Daily briefings to the media and public would be coordinated. In this scenario, the Prime Minster would repeat this message and possibly refer all matters to his appointed Minister who would coordinate with the mayor and provincial representative.

Plans can change with circumstances but with the right systems in place intelligent adjustments can be made and communicated effectively.  This is essential in maintaining public trust.

While the underlying issues that gave rise to the protest will likely require significant debate and policy discussions among the politicians over the medium to longer term, the respect for the rule of law and dealing with civil disobedience need to be handled lawfully by the enforcement community guided by an informed plan with an engaged elected leadership. 

At the end of the day, this is an issue of public trust.

Transparency and clear accountability are two defining factors of good governance, which ultimately contributes to this trust.

Regardless of what comes next, officials need to prepare the public for enforcement actions that are necessary and legitimate.  Failure to do so will further undermine trust in government, as well as trust in our democracy, and give the protestors an even greater advantage.

More than ever, our society needs strong leaders to make hard choices under even tougher circumstances. Our Leadership and Learning Courses can help you prepare for those decisions.

Government of Canada office building

REACTION: 2021 Mandate Letters

Governing Liberal Style

In late December 2021, the Prime Minister’s Office released the collection of ministerial Mandate Letters. These documents outline departmental and ministerial priorities for the mandate ahead.

The letters reflect the government that produced them. There is no shortage of ambition, even audacity.

The prime minister has remained true to the focus of his election campaign and Throne Speech, focusing on pandemic management and recovery, reconciliation and social equity issues, climate change and the environment, and improved access to housing.

The mandate letters set out an agenda that is heavily oriented towards social rather than economic policy; even the equity the government seeks to deliver is more social than economic.

Spending to Fix

A good portion of the economic policy in the letters relates to transitioning a net-zero emissions economy – albeit with a respectable measure of pro-innovation and technology initiatives in the mix.

The Deputy Prime Minister and Minister of Finance is admonished to keep an eye on the government’s fiscal health. There are few measures to significantly raise revenues and even fewer to reduce expenditures.

This is not an austerity agenda: many initiatives explicitly call for additional spending and even those that don’t will in many cases require it. Presumably a day of fiscal reckoning will come, but this is not that day.

A Reworked Rewind

Even aside from the fiscal mindset, we see multiple inversions of a conservative agenda, at least as manifest by the previous government.  Net-zero has plainly supplanted the ambition to become an “energy superpower”.  Law-and-order, pro-gun policies have yielded to “justice strategies” aimed at removing cultural and gender biases in the police and courts, increased funding for the Court Challenges Program, and confiscation of guns where “red flags” arise.

Efforts to keep the public service, and its scientists, focused on operations and implementation have yielded to a supposedly science and data driven approach to analysis by a diverse, digitalized workforce that benefits from flexible and equitable working arrangements.

A Renewed Public Service Relationship

While directed at their political leaders, these mandate letters direct Deputy Ministers, Assistant Deputy Ministers, Directors General, and the rest of the public service in, well – their direction. Coupled with fiscal updates, these are the marching orders of the public service.

However, how do you implement vast change, in a changing landscape, with a static public service? 

You don’t. 

The public service must constantly renew itself – a notion which has been evoked in throne speeches for years to help Canadians enjoy a quality of life envied by other countries.

Surely, there are nods to this within the letters. Striking a cooperative tone is a start, as is the recent report by the Clerk of the Privy Council [HYPERLINK] and its focus on the future of work.

Digital efficacy, replacing systems, improved service capacity – all of these remain components of a renewed public service.

But is this enough? Is it a complete vision of a 21st century public service? Arguably, it misses the mark. 

To meet the challenges of declining trust in government and colliding forces of globalization and disruption, a responsive public service requires structural changes that are far more reaching than outlined in this batch of letters.

Our Problem or Theirs?

Much of this agenda has been in place, with mixed success, since 2015 – but a few things seem to have gone by the wayside.

Direct links to the infamous “deliverology” approach have been quietly dropped. Not much remains of the democratic reform agenda – although the Intergovernmental Affairs Minister is tasked with some open-ended efforts to improve the electoral system.

The enhancement of Canada’s parliamentary democracy looks to be limited to better digital connectedness by parliamentarians, renewal of the perennial promise of more free votes, and undisclosed updates to the Parliament of Canada Act to reflect the Senate’s non-partisan role.

Overall, the government appears more concerned with the democratic shortcomings of others than of itself.

Reflecting on the 90th Anniversary of the Statute of Westminster

REFLECTION: Reporting on Reports

With contribution from Shelby Torres.

What’s To Report?

Last week, Canadians saw seven parliamentary reports by Agents of Parliament on various department’s activities tabled within the House of Commons. While these kinds of reports graze the parliamentary table with relative frequency, their importance to governance and benefits to Canadians are seldom emphasized or appreciated.

So what exactly do parliamentary reports do and why should we pay attention to them?

Accountability by Informing.

Parliamentary reports are an essential accountability tool used by both government and opposition parties.  For governments, parliamentary reports communicate important information to the public and promote transparency. 

The Government of Canada is Canada’s largest employer with thousands of entities with varying mandates serving citizens. Parliamentary reports provide a key role in consolidating information from across institutions and communicating it back to the public. 

Canada’s Auditor General Karen Hogan’s recent Reports entitled Regional Relief and Recovery Fund and Enforcement of COVID Quarantine and Testing Orders respectively, are great examples of both keeping Canadians informed and a window into internal activity and resource decisions using public funds.

Improving Service Delivery.

Parliamentary reports, particularly from the Auditor General, also provide decision-makers and governing institutions recommendations on how those institutions can improve program delivery and service to Canadians. You can’t improve a program or fix a problem if you don’t know it’s needed – and you cannot mark your own homework so to speak. 

Reports such as Parliamentary Budget Officer Yves Giroux’s Family Wealth Distribution in Canada provides insight into wealth distribution inequality that Canadians may not otherwise be unaware of. An informed public is essential in a healthy representative democracy. 

Politicians are generally attuned to an informed and engaged public, and usually appeal to their citizen’s sensibilities at least every four years.

A Demonstration of Progress – or a lack thereof.

Ministries also release annual reports on important priorities in order to highlight actions and ideally progress.

Women and Gender Equality Canada releases an annual report on Canada’s National Action Plan on Women, Peace and Security, highlighting the government’s efforts to support causes that Canadians have deemed important, such as gender equality. Reports such as these let Canadians know public institutions are performing as they should or not.

Other reports such as Commissions of Inquiry, provide the public with a deeper understanding of controversial issues of the day. Both the Final Report from the National Inquiry Into Missing and Murdered Indigenous Women as  well as the Calls to Action by the Truth and Reconciliation Commission of Canada legitimized Indigenous Voices.

These reports demonstrated the need that the government must address societal inequities that span decades if not generations. While some may believe these reports have been relatively ineffective at providing timely solutions, they have informed Canadians on the inequalities faced by marginalized communities and provide non-Indigenous citizens knowledge to demand better from their government. 

Good Governance means Good Reporting.

While parliamentary reports pass through the House of Commons frequently and seldom garner notoriety amongst the general public, they are nevertheless a staple of good governance that should not be discarded.

Once published or tabled, parliamentary reports help hold Canada’s institutions and political actors to account through increased transparency and sometimes the legitimization of voices of those who have historically not been heard. 

Without them, Canadians would be ill equipped to hold their representatives and public institutions into account.

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Reflecting on the 90th Anniversary of the Statute of Westminster

REFLECTION: The Statute of Westminster

With contribution from Karl Salgo and Stephen M. Van Dine.

Autonomy? Not Yet.

December 11th will mark the 90th anniversary of the British statute to which Canada owes its autonomy as a nation. This refers not to what was once known as the British North America Act (BNA) and is now the Constitution Act, 1867, but to a (yet) less well-known act entitled the Statute of Westminster – a crucial piece of legislation.

While Canada did become a country in 1867, it’s a common misconception that we gained our independence at the time.

Britain mostly left us to our own devices on domestic matters but played a not-always-helpful role in our international affairs. They sided with the United States on such significant matters as the Alaska boundary dispute of the early 1900s.

The right to appeal to the Judicial Committee of the Privy Council (JCPC) had a significant impact on Canada’s constitutional jurisprudence. Perhaps even more to the point, the British Parliament retained an ill-defined right to legislate for Canada.

The Path to Sovereignty.

Fast forward to the Imperial Conference of 1926 and the Balfour Declaration that came out of it.

The Balfour Declaration stated that “autonomous communities within the British Empire” were equal and “in no way subordinate to one another”. In other words, Britain was no longer in charge.

It’s important to appreciate that the Declaration had been proposed by Canada’s own Mackenzie King. King was a far stronger and more effective champion of Canadian sovereignty than is sometimes recognized. 

King had famously struggled with Governor General Byng earlier in 1926, so it’s interesting that the Declaration recommended that Governors General cease to be representatives of the British government to the dominions.

Legislative Loopholes.

The provisions of the Balfour Declaration were enacted in legislation as the Statute of Westminster in 1931. The Statute of Westminster declared that no act of the British Parliament would have any impact on a dominion without the dominion’s express desire and consent.

This was a profound moment of maturation in Canada’s history, not least because we had shown leadership in bringing it about.

In fact, ties were not severed all that cleanly. Canada continued to allow appeals to the JCPC until 1949 in civil matters. Our written constitution, the BNA, remained a British statute until 1982 essentially because we couldn’t agree on an amending formula.

Canada’s Constitutional Consent.

Even that was not quite the end of it.

The nations affected by the Statute of Westminster remained subjects of the Crown – their consent was required for any amendments to the law of succession.

Before passing the Succession to the Crown Act in 2013 , the British government made a point of securing the approval of the Commonwealth – Canada included.

After some hand wringing about whether this triggered the amending formula under our own constitution, Canada’s government gave its consent to bringing the monarchy into the 21st century.

December 11th is also the anniversary of the 1997 Supreme Court of Canada decision referred to as Delgamuukw v. British Columbia, where Aboriginal title over traditional use and occupancy of lands was recognized and defined by the court. This paved the way for land claim settlements across Canada. 

Sharing the anniversary date with the Statue of Westminster, while coincidental, is nevertheless symbolic of a special day of the Crown recognizing the rights of Nations.

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REACTION: Speech from the Throne

As originally published in iPolitics Wednesday, November 25th 2021.

With contribution from Karl Salgo and Rhonda Moore.

A time-honoured tradition.

A Speech from the Throne or Throne Speech is a highly ceremonial element of the parliamentary process, the centerpiece of the opening of any new session of Parliament following an election or a prorogation. The Governor General, as the representative of the Queen, reads the speech on behalf of “her” government, in which the latter seeks the support of parliamentarians for its legislative agenda for the session.

Parliament debates and votes on the throne speech, which is a matter of confidence, meaning that it must receive majority support if the government is to continue in office.

Canadian throne speeches tend to differ somewhat from their British counterpart, the Queen’s Speech, most conspicuously in length. In recent times the average duration of the Queen’s Speech is about 10 minutes, which means about 1000 words or less.

Our throne speech tends to be much longer – typically in the 3,000 word range (Tuesday’s speech being a bit over 2,700). Arguably, that reflects a greater tendency for Canadian governments to use the speech as a communications tool. Or perhaps it’s just that no one dares to tax Her Majesty with the additional verbiage.

The need for a public statement of strategic direction.

From a governance perspective, the throne speech is one of the more significant manifestations of a core principle: the need for public statements of strategic direction. By strategic direction we mean that specific government initiatives should be part of a broader, coherent agenda.

Such forward planning contributes to effective performance, while the public nature of the plans contributes to accountability, two other core governance principles. Canadian governments have a relative handful of comprehensive strategic statements – electoral platforms for those who have recently been to the polls, throne speeches which often and justifiably resemble electoral platforms, or the federal budget, to name a few.

What’s at Stake?

The Governor General’s concluding remarks gave clear marching orders to Parliamentarians when she said “[the] priorities for this 44th Parliament are clear: a more resilient economy, and a cleaner and healthier future for all of our kids.”

In a mandate that will be marked by an aggressive push for a “return to normal” and “building back better”, we see rich opportunities for action informed by scientific evidence and innovation. 

Emerging from the pandemic will require vaccines for children, COVID-19 “booster shots” for the rest of us. “A cleaner healthier future” is undeniably a reference to transitioning to a low carbon future and investing in measures to adapt to or mitigate the impact of climate change. Science and innovation have key roles to play to achieve these visions. 

But science and innovation alone will not deliver the government’s new mandate. Progress requires the willingness of society to accept the knowledge science provides, and to act on that knowledge. That requires trust. Her Excellency gave a clear directive on that topic, too, when, in her concluding benediction she said: “may you be equal to the profound trust bestowed on you by Canadians, and may Divine Providence guide you in all your duties.”

Accountability comes next.

These points considered, it would be surprising if this throne speech did not resemble the government’s recent campaign platform, which is arguably a reflection of its accountability (i.e., is the government doing what it said it would?). The next step in accountability will be the debate and confidence vote, and the longer term manifestation will be how well the government delivers on this agenda.

When it comes to accountability for public statements, leaving themselves a bit of wiggle room is a time-honoured tradition among Canadian governments.

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