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The declaration of a public order emergency under the Emergencies Act was revoked a mere 48 hours after it was approved by the House of Commons and even before the Senate could vote to express its opposition or support.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

Interested in reading more from the IOG? Check out our most recent blog posts:

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.


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.

NEWS: IOG Welcomes Owen Charters to Board of Directors

Ottawa, ON – The Institute on Governance is proud to announce the addition of Owen Charters to our Board of Directors. Owen Charters is CEO of BGC Canada (formerly Boys & Girls Clubs), the country’s largest child- and youth-focused charity. Former Chair of Imagine Canada and the Human Resources Council on the Nonprofit and Voluntary Sector, Owen is also faculty for the Social Sector Leadership MBA at York University’s Schulich School of Business.

The Institute on Governance is excited to have Owen serve as a strategic voice on our Board of Governors. His commitment to people, passion for nonprofit sector work, and dedication to colleagues will serve the IOG as we move towards our future.

Presently, the Board of Governors of the Institute on Governance is comprised of:

Aurèle Thériault, Chair – Co-President, Interlocus Group.

Sarah Paquet, Vice-Chair – Director and CEO at FINTRAC.

Aneeta Bains – Partner, Public Sector at IBM Canada.

Brian Bost – Partner, Advisory Services, KPMG.

Malcolm Brown – Senior Strategic Advisor, PricewaterhouseCoopers LLP.

Julie Di Lorenzo – President, Diamante Urban Corp.

Martine Durier-Copp, M.A., M.Mus., PhD. (she/her/elle) – Academic Dean, NSCAD University

Shingai ManjengwaChief Executive Officer of Fireside Analytics Inc.

Colin McKayHead, Public Policy and Government Relations, Google Canada.

Owen ChartersCEO of BGC Canada.

The Institute on Governance is a Canadian non-for-profit focused on working to advance governance through research, learning, advisory services, and more. Over our three decades, we have worked with federal, provincial, municipal, and Indigenous governments, and not-for-profit organizations. Our networks have taken us to three dozen countries worldwide, including with recent projects in Iraq, and Botswana. Today, we are focused on the 21st century challenges to good governance that governments and their citizens face.

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