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It's a pandemic! Even today, Prime Minister Justin Trudeau mentioned "enforcement" as a measure to encourage compliance to social distancing and other pandemic best practices. But what are a government's emergency powers? How do they get to call them into force? And what do they let a government do? We're joined by Queen's Law PhD candidate Rory Fowler, an administrative law expert and former military officer, for our longest episode ever -- a comprehensive masterclass in emergency powers in Canada.
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Theme music for Fundamentals by Megan Hamilton.
0:00:00 Matt Shepherd: We are going to start by taking a trip back in time, I guess, to 1918.
0:00:04 Rory Fowler: I'm actually gonna take you back earlier than 1918, I'm gonna take you back to 1914. Because people start thinking about the War Measures Act and the War Measures Act was enacted on the 22nd of August 1914 for obvious reasons, Guns of August, World War One commences in essentially August of 1914, and the government enacts the War Measures Act because of the great war. Because it was a war unlike any other war that Canada or any other nation had fought, or at least that was the perspective. So enact the War Measures Act.
0:00:35 MS: Okay.
0:00:36 RF: And the anticipated use of the War Measures Act was for war, riot or insurrection, and it was in response to a war that had global consequences because even in 1914, the government saw that this was going to be a war that was different than other wars. Then after the war, in fact the... What is called the Spanish flu and I'm not gonna call it Spanish flu, because lately, there's been a certain notable individual who has chosen to refer to the current pandemic in what could be constituted as racist terms. I'm gonna refer to it as the influenza pandemic, of 1918.
0:01:14 MS: Right.
0:01:14 RF: And right there, there's a bit of misinformation, because it wasn't the influenza pandemic of 1918 it was the influenza pandemic of 1918 to 1920. It lasted almost three years. And there were crests with respect to the pandemic. It didn't happen all at once. As many people have been discussing in the media recently, it came, it left and it came back in greater force.
0:01:40 MS: Okay.
0:01:41 RF: So, let's look at what that pandemic did, just to give us the context. Certainly, the infrastructure of several countries had been adversely affected by the war, that meant their medical infrastructures, their civil response infrastructures had been adversely effected. There were large masses of people from different countries, all concentrated in Europe and certain other areas and then they went home to their home countries, taking the influenza with them.
0:02:05 MS: Okay.
0:02:05 RF: So a lot of people associate the end of World War 1 or the Great War, with assisting the spread of influenza. And that was actually the first big outbreak of H1N1. We think of the bird flew, the first H1N1 pandemic was actually in 1918. So you have hundreds of thousands of soldiers going back to places like Canada and the United States. One of the difficulties that we've got in looking at the historical context of the influenza pandemic of 1918 is that, for a variety of reasons the statistics that were gathered are adversely affected by a, the capacity to convey those statistics and to gather those statistics. Propaganda machines for governments trying to either downplay or exaggerate the influenza pandemic. And as a result, the numbers of people who died as a result of the influenza pandemic range from 17 million to 100 million. But the general figure that's associated with it is often 50 million people. Let's put that in context.
0:03:09 RF: At the time, there were slightly less than 2 billion people worldwide, or at least that's what the census has told us. So, 50 million deaths out of two billion people, that's about 2.5%
0:03:22 MS: Wow.
0:03:23 RF: Yeah, that's significant.
0:03:24 MS: Yeah.
0:03:24 RF: Here's what we have to put in the context for North America, for Canada United States. So Canada, according to various statistics I've looked at, Canada had approximately 50000 deaths attributed with... Attributable to the influenza pandemic. The United States suffered 675,000 deaths, as a result of the influenza pandemic. If we look at the populations relevant... Populations in Canada and the united States at the time, so at the time, the United States had slightly more than 100 million people, 103-106 million people, 1918-1920. So 675,000 deaths is approximately 0.6% of the overall population, the United States.
0:04:02 MS: Okay.
0:04:03 RF: Canada, had a population were around or just below 8 million, in that period of time. So 50,000 deaths again, is a fatality rate less than 1%. So, whereas the world-wide fatality rate was two and a half percent. Both Canada and United States, it was less than 1%. Just put in context, because that may be relevant to some of our discussion. The War Measures Act was already invoked in 1918 because of the great war.
0:04:29 MS: Right, right.
0:04:30 RF: So there was no invocation of any emergency legislation, because of the epidemic or the pandemic, because it had already been invoked for the purposes of the war, not for the purposes of pandemic.
0:04:40 MS: And we just hadn't revoked it yet?
0:04:42 RF: That's right.
0:04:42 MS: Okay.
0:04:43 RF: On top of that, you've got a massive response. And Canada, the United States, one thing, and I'm not a scientist, one thing that could have contributed to the fact that Canada, the United States, had a far lower fatality rate is because Canada, United States, if anything, our infrastructure had been aided by the war, because we cranked out in a total war context. We... Our industry had been oriented towards the war, the industries in Canada, United States had to a large measure, been nationalized if you will. The entire effort of the nation was toward war, particularly in Canada. And our infrastructure was not adversely affected by the war, to the same extent that France, Germany and European nations had been adversely affected. You look at the photos of World War 1 and the physical infrastructure had been adversely effected.
0:05:33 MS: Well, no one was blowing us up.
0:05:35 RF: That's right.
0:05:35 MS: Yeah.
0:05:35 RF: Well, no one was blowing up our country...
0:05:37 MS: Right, no one was blowing up Canada.
0:05:40 RF: That's right. So that puts things in context. So you've got a pandemic, a global pandemic, hence the term, "Pandemic", that is affecting a variety of countries for a variety of reasons, science was not as advanced then, as it is now, social media was not as advanced, so probably less panic, but equally there were challenges that the government faced. The government had already for four years at that point in Canada, had already been oriented toward total effort toward a particular objective. So they were able to shift gears and deal with the pandemic. I would be hesitant to suggest that that's the principal contributing factor to why the fatality rate in Canada and the United States was lower. But that certainly contributed to Canada's response.
0:06:32 MS: So you're saying that because we were coming from a place of total focus, it was easier for us to move to a place of equally total but different focus?
0:06:39 RF: That's one of the contributing factors, as well as the fact that our infrastructure had not been as adversely affected by the war as, for example, European nations, Northern African nations, areas in the Middle East. Plus Canada and the United States were technologically advanced then, we're technologically advanced now compared to many other places.
0:06:58 MS: Fair enough.
0:07:00 RF: But that is significant, because part of a government's response to an emergency is to place certain industries, certain factors, at government control. And we'll talk about that a little bit later when we talk about the Emergencies Act. So that's a good comparator historically, because it involves the use of emergency legislation, if you will, the War Measures Act was already in place. And it involves a pandemic that is not all that dissimilar from what we're facing now. There's a... We're talking about a flu-like virus, and we're talking about a pandemic, and we're talking about instead of returning soldiers bringing it back to Canada, we're talking about returning travellers bringing it back to Canada. And other reasons as well.
0:07:48 MS: So we've got the War Measures Act. What other legislation is there that deals with emergencies?
0:07:54 RF: So we no longer have the War Measures Act. The War Measures Act was replaced, and people always think of the War Measures Act. So the next time the War Measures Act was used was, obviously, World War II. And that's going to be relevant for some of our discussion down the road when we talk about the Charter, because one of the things done under the War Measures Act, for example, in World War II, was the segregation and eventually internment of, for example, Japanese Canadians or people of Japanese race, to use the terms that they used at the time. And that was a subject of review. And remember, there was no Canadian Charter of Rights and Freedoms at the time. There was no, even, Bill of Rights, which came in in 1960, but only on the federal level. There was only the War Measures Act. The War Measures Act was invoked, obviously, for World War II. Interestingly it was not invoked for Korea. It was not invoked any other time for war, and only the third time was invoked was the October crisis of 1970. And arguably that was for an insurrection as opposed to a war. So there were only three times that the War Measures Act was invoked, and two of those times were war. Under the War Measures Act in World War II, there were actions taken to restrict the liberty, significantly restrict the liberty, to the point of deportation of people of Japanese race, including people of Japanese race who were Canadian citizens or British citizens.
0:09:15 RF: And that was later the subject of a reference to the Supreme Court of Canada, which was subsequently heard by the Judicial Committee of the Privy Council, which was at the time, the highest court of appeal. And the Judicial Committee of the Privy Council upheld the decisions of... Or the judgments of the majority of the Supreme Court of Canada. But we'll get to that in a second. So what we've got now, by way of legislation is on the federal level, the Emergencies Act. And the Emergencies Act was introduced in 1988 and it can be viewed as being the successor to the War Measures Act. People think War Measures Act, and even nowadays when people talk about the governments reaction to an emergency, someone will pipe off about the War Measures Act, and it's like, "There's no such thing as the War Measures Act any more." It was essentially replaced by the Emergencies Act. That's at the federal level. But we have to remember, Canada is a federal constitutional state. They have more than one level of government. We've also got a provincial level of government, and at the provincial level, we've got the Emergency Management and Civil Protection Act under Ontario legislation. I'm an Ontario lawyer, I'm gonna talk about Ontario legislation. And up until June of 2006, that was called the Emergency Management Act, and in June... At the end of June 2006, it was amended to be called the Emergency Management and Civil Protection Act.
0:10:30 RF: The reason I mention that is, unlike the Emergencies Act, which has not yet been invoked, the Premier of Ontario has essentially invoked the Emergency Management and Civil Protection Act. And that's because we know, that in addition to the legislation I've just mentioned, under the Constitution Act 1867, which used to be the British North America Act until we patriated our constitution. Under the Constitution Act, 1867, there's a division of powers between the federal government and the provincial government. Section 91 of the Constitution Act, 1867 deals with the federal government. Section 92 deals with the powers of the provincial government. Section 91 also indicates that any residual powers, what we call residual powers: Peace, order, and good government. Any residual powers that are not expressly assigned to the provincial government fall to the federal government. So that means there are certain things that fall within the provincial realm and certain things that fall within the federal realm. And that's why we have an Emergencies Act at the federal level and an Emergency Management and Civil Protection Act at the provincial level.
0:11:33 MS: So how much of this ties into the fact that healthcare is generally something that's assigned to the provinces?
0:11:39 RF: Well, that's an important question, because it's not generally assigned to the provinces. So the Constitution Act... So if we turn to the Constitution Act, subsection 92, sub 7 expressly places the control of hospitals within provincial control. But that's not the only thing. And I know that's the first thing comes to mind, because we're talking about a medical pandemic. But consider the following. Subsection 8 of... So these were all under Section 92 which deals with provincial powers. Subsection 8 deals with municipal institutions. Can you think of any municipal institutions that might be affected? Just about all municipal institutions are currently being affected, because they're having to restrict the number of people that are actually providing those municipal services as a preventative measure. Civil rights under subsection 13, under the province. The administration of justice and the courts under subsection 14. Any local matters under subsection 60. So there's a great deal that falls under municipal control. In fact, our day-to-day lives are regulated far more by the province than they are by the federal government.
0:12:41 MS: So if we're comparing Emergency Acts, is the provincial Preparedness Act much more kind of relevant to us even than the federal one?
0:12:50 RF: Well, it's relevant, I'd suggest in a couple of ways. First off, the premier has declared an emergency. So what he's essentially done is he has triggered under... And if you give me a second, I'll give you the specific provision.
0:13:04 MS: So, you came in with a game plan and now we're jumping around.
0:13:06 RF: That's okay. As... Well, two quotes come to mind, right? One from my military background, which is "No plan ever survives contact with the enemy." Not that you're the enemy, but no plan ever survives contact with the enemy. My more favorite quote is probably from Mike Tyson. "Everybody has a plan until they get punched in the face." Which...
0:13:28 MS: Not that I'm thrilled about my part in these analogies, but yeah, we'll roll with that.
0:13:34 RF: It's a great quote. So under Section 7 of the Emergency Management Civil Protection Act, essentially, the Premier has invoked that legislation.
0:13:44 MS: Right, okay.
0:13:45 RF: And we have to remember that... And we'll get to this in a second, but the reason we've got emergency legislation is ultimately to grant the executive additional powers. Okay? So, Canada has three branches of government, most people are aware of that. Anyone who's done civil studies in high school will be aware that there's an executive, there's a legislature, and both at the provincial and federal level, and there's the courts. Those are the three branches of governments generally speaking. They will also be aware that in Canada because we are a constitutional parliamentary democracy, and that's both federally and provincially, that there's a bit of overlap between the executive and the legislature, right? Those who command the confidence of the legislature will form the executive.
0:14:32 RF: So, the Premier is both the head of government. Technically speaking, is the head of government provincially, and the Prime Minister is the head of government, he's not the head of state. Her Majesty, The Queen, is the head of state, represented at the federal level by the Governor General, represented at the provincial level by the lieutenant governors. But essentially, she takes the advice of her cabinet. So essentially, you've got the Premier, the Prime Minister, at the provincial and federal level that head both the legislature and the executive, but they have different powers.
0:15:00 MS: Right.
0:15:00 RF: And we also have to remember that because in a parliamentary democracy, because under the Constitution Act of 1867, Canada has a government much like the United Kingdom, although theirs until recently was a unitary state, meaning they only had federal levels, they didn't have provincial levels. There's been devolution, we won't get into that, that's very complex for our discussion. But essentially, we have a constitution much like that of the United Kingdom in terms of the distribution of powers.
0:15:29 RF: So, our executive is actually quite powerful. You compare that the United States where the executive is elected completely separate from the legislature. Their head of state is the President, their head of government is the Speaker of the House. And so the legislature, and particularly now where the legislature, particularly the House Representatives, is commanded by the Democrats and they've got a Republican president, if you can call him a president. Sorry, I got a little bit political there. [chuckle]
0:15:57 MS: So, we're moving around a bit.
0:15:58 RF: We're moving around.
0:16:00 MS: But have we kind of batted the circuit on legislation? There's the federal Emergencies Act, and then there's the Provincial... I don't remember the full name, but essentially, a provincial Emergencies Act.
0:16:07 RF: That's right.
0:16:08 MS: Is there any other sort of legislation extant that deals with these kinds of situations?
0:16:14 RF: Well, we have to remember those are very specific pieces of legislation that deal very specifically with emergencies, but they're not the only thing that apply to emergencies. So I've already mentioned other legislation that's relevant to emergencies.
0:16:24 MS: Yup.
0:16:25 RF: Starting with the Constitution Act.
0:16:27 MS: Right.
0:16:27 RF: So, the Constitution Act of 1867 divides powers. The Constitution Act of 1982 provides us the charter. Both of those as I've already mentioned are going to be relevant during any emergency, whether or not emergency legislation like the Emergencies Act is invoked. Because the charter is always going to be relevant to be relevant to the exercise of power by the legislature and by the executive, and the division of powers under the Constitution Act of 1867 will always be relevant.
0:16:53 MS: But it's really just those two pieces of legislation at the federal and provincial level that's kind of grant extraordinary powers in the event of...
0:17:01 RF: Those are the ones that are specifically designed to grant extraordinary powers to the executive.
0:17:05 MS: Right.
0:17:06 RF: Supervised by the legislatures at each level for the purposes of responding to an emergency, but those aren't the only pieces of legislation relevant to an emergency.
0:17:15 MS: Fair enough, okay.
0:17:16 RF: And one in particular that I'm gonna mention because we will talk about it down the road, is the National Defense Act. Now, I'm not mentioning that solely because I've been a soldier for 28 years and I've been a legal officer and I'm familiar with it, but because when people think of emergencies, one of the first things that you think of is the charter, one of the first things they think of is the War Measures Act, now the Emergencies Act, but they also automatically think of, "Well, what about the Canadian Forces?"
0:17:38 MS: Right.
0:17:38 RF: Right? Can you think of any times in the past, say, 20 years, where the Canadian forces has deployed internal to Canada? So domestically, in response to emergencies?
0:17:51 MS: Other than the October crisis which pre-dates that, I cannot.
0:17:57 RF: So, we know that the Emergencies Act has been around for slightly more than 30 years. You can't think of any other time the Canadian forces is deployed in the last 20, 30 years in response to emergencies?
0:18:06 MS: Within Canada?
0:18:07 RF: Within Canada.
0:18:08 MS: Not specifically. I can think of... There are definitely times I can think of. There was flooding in Quebec...
0:18:14 MS: There was flooding in Quebec...
0:18:16 MS: And the forces helped. I guess, I got in my head kind of a distinction between deployment and helping out, which is probably a false division. I can't think of them being militarily deployed in Canada.
0:18:29 RF: Well, and that's an interesting point because you're drawing a distinction. Most Canadians, I suggest would not. So think back to the late 1990s, in 1998. The Red River floods in Winnipeg.
0:18:39 MS: Right.
0:18:40 RF: Right? We deployed... The Canadian forces deployed two brigades. And essentially, two brigades worth of troops and the divisional headquarters to combat the floods, to assist in combating the floods.
0:18:53 MS: Right.
0:18:53 RF: Right? We had in Southern Manitoba, we had deployed probably in the vicinity... I can't remember the exact figure, but we had deployed in the vicinity of 4000, 4500 troops.
0:19:07 MS: Okay.
0:19:08 RF: At least.
0:19:09 MS: And that is a great thing to do when there is a physical thing happening that you can solve using physical means.
0:19:17 RF: Yup.
0:19:18 MS: But a virus isn't really something you can use the military against.
0:19:23 RF: And that's an interesting point, we'll get to that down the road. But would you consider the Red River floods to have been an emergency?
0:19:30 MS: Yeah, absolutely, yes.
0:19:31 RF: What about the ice storm of the late 90s?
0:19:33 MS: Yup, I was there, I was in Sherbrooke in '98 and... Yup, no, definitely an emergency.
0:19:38 RF: Right, and the Canadian forces were also deployed. In fact, more soldiers were deployed in response to the ice storm than were deployed in response to the Red River floods.
0:19:44 MS: Right.
0:19:46 RF: And I was on both of those deployments. And we've also very recently in the Saguenay floods and just this year, deployed soldiers, and that's the term that the Canadian Forces use, "Deploy soldiers."
0:19:57 MS: Okay.
0:19:58 RF: But we already know that the Emergencies Act has never been used by the Federal Government. It's never been invoked. So that wasn't by virtue of the Emergencies Act, that was by virtue of a specific provision under the National Defense Act.
0:20:10 MS: So, and just to round that out, you were saying the federal government's never invoked the Emergencies Act. You mentioned earlier that the Premier has kind of invoked...
0:20:18 RF: No not kind of...
0:20:19 MS: He is absolutely...
0:20:21 RF: By declaring an emergency, that is necessary under Section 7 of the Emergency Management Civil Protection Act.
0:20:26 MS: So chapter inverse, we can say he absolutely has invoked it at this point?
0:20:30 RF: That's right.
0:20:31 MS: Okay.
0:20:31 RF: So all of these other emergencies where the Canadian Forces come out. What about Oka? That was one. And that's distinction. That's a distinct deployment from, say the Red River floods and the ice storm and the Saguenay floods.
0:20:48 MS: Right.
0:20:48 RF: Right? An entire brigade of the Canadian forces was deployed and the troops were deployed with weapons.
0:20:56 MS: And that definitely crosses my mental line into... Yeah, that's a militaristic one that I hadn't thought about.
0:21:00 RF: Right? And that was a domestic deployment.
0:21:01 MS: Right.
0:21:01 RF: Not under the Emergencies Act.
0:21:03 MS: Okay.
0:21:04 RF: So what we've got is a distinction between public service, which the Canadian forces can perform by virtue of Section 273.6 of the National Defense Act. And aid of the civil power, which is covered under Sections 274 to 285, National Defense Act, not to be confused, two very distinct circumstances.
0:21:23 MS: Right.
0:21:24 RF: So under Section 273.6 of the National Defense Act, the Public Safety Minister can request the Minister of National Defense to provide Canadian forces in assistance for aid to the civil power.
0:21:37 MS: Okay.
0:21:39 RF: Equally, attorneys general or solicitors general of provinces can make the request through the federal government.
0:21:45 MS: Right.
0:21:45 RF: Equally, but distinctly, provinces or even the federal government, can request from the Minister of National Defense that the Canadian forces perform a public service under Section 273.6 of the National Defense Act. Public service is not aid to civil power, aid to the civil power. Aid to civil power is when the troops come out like Oka. When they're armed, when they're assisting with... And the October crisis would be another example of aid to the civil power, but it was done under the War Measures Act. Canadian forces is often called upon to provide public service.
0:22:20 MS: Right.
0:22:20 RF: Where... And if you look at, for instance, and I'll use the floods in... The Red River floods in the late 90s as an example, because it was a highly successful operation and it's because there were certain skill sets of the Canadian Forces bring the bear. People made jokes about when the mayor, the former mayor of Toronto called out the troops because of the snow storm.
0:22:42 MS: Right.
0:22:43 RF: The Canadian forces is not there to perform public service that can be performed by a municipal or provincial institutions.
0:22:49 MS: Yeah.
0:22:50 RF: That's a waste of time, it's a waste of effort and that's a waste of a fairly limited resource. But there are certain skill sets that the Canadian forces have and certain equipment that the Canadian Forces have, that assists with a public service. One of the big things that the Canadian Forces brings to bear is planning. We train our officers, predominantly officers, but not just officers in planning, we do a lot of training in planning. And so, during the Red River floods, one of the main purposes of deploying the first Canadian division headquarters, was to plan for the eventual evacuation of Winnipeg, we came to that. That's one of the main efforts that they put into it. And having seen how municipal organizations and provincial organizations do their planning, it's not a bad thing that they bring out headquarters from the Canadian Forces to assist with planning, in fact, a great many of my former colleagues who have also retired from the Canadian Forces, who were senior officers, have gone into emergency preparedness or other jobs, because they possess those skills for planning. Okay.
0:23:47 RF: Equally, large number of troops, who can work in a concerted manner, who can work in an organized fashion, who have access to vehicles that assist them in doing that, made the response to the Canadian Forces to the floods, a very successful operation. So that's one of the reasons why a provincial government or municipal government through their provincial government, might turn to the Canadian Forces for public service. But those are examples of the response to an emergency, often a localized emergency, under legislation, other than what would be characterized as emergency legislation.
0:24:22 MS: Okay.
0:24:25 RF: So, we've talked a little bit about relevant legislation. And so there's a higher review of legislation. Obviously constitutional legislation is involved, so the Constitution acts 1867-1982, including the Charter. The Federal and provincial legislation, Emergencies Act, the Emergency Management and Civil Protection Act, and even federal legislation like the National Defense Act can come into play when you're dealing with an emergency. But then we have to ask ourselves, what constitutes an emergency? So we can look at the normative definition of an emergency. So, a normative definition is a serious unexpected and or dangerous situation requiring immediate action.
0:25:07 MS: Right.
0:25:07 RF: When we think emergency, that's generally what we're gonna be thinking about.
0:25:11 MS: Okay, yeah.
0:25:12 RF: But of course legislation will have its own definitions, will have its own provisions. So let's look, because most people think of the Emergencies Act, although as I've already said, provincial legislation is at least as important and quite frankly, is more likely to be invoked than the federal legislation, and I would also suggest that legislation will be invoked, when it needs to be invoked. Because as we already know, the federal government, the executive branch of the federal government, already has significant powers under existing legislation. They don't need to invoke the Emergencies Act to do a variety of things that they've already done. For example, one of the things that they've done to relieve pressure on people is they've indicated that they will delay the deadline for submission of income tax returns to use button example. They have delayed that by essentially an additional three months. And they've done so, arguably, directly because of the COVID-19 crisis.
0:26:10 MS: Yup.
0:26:11 RF: They didn't need to invoke the Emergencies Act to do that. They've got the power to do that themselves.
0:26:15 MS: So what is the Emergencies Act for, then? What does it let them do that they don't already have access to?
0:26:22 RF: Well, there's four types of emergencies that are expressly identified under the Emergencies Act. And in a lot of ways, the Emergencies Act represents an evolution from the War Measures Act, right. The War Measures Act in 1914, was conceptualized as legislation allowing the government to deal with total war.
0:26:41 MS: Right.
0:26:42 RF: A lot of people criticized Trudeau, Sr. In invoking the War Measures Act in the October crisis because it wasn't really designed for that, although, there's arguments that it was designed for not just war but war, riot and insurrection. And it was a crisis in 1970, but it was not particularly agile legislation with respect to responding to the types of emergencies that we could anticipate in a modern sense. And so, the Emergencies Act represents an evolution in emergency legislation and it identifies... It's got six sections, obviously for six parts. Part 1 deals with sort of introductory clauses including definitional clauses, but it identifies four types of emergency and each one has its own part. So, under Part 2, it deals with Public Welfare emergencies. And we'll be getting back to that, because that's what we're dealing with, with COVID-19, I would suggest.
0:27:37 MS: Yup.
0:27:37 RF: Part 3 deals with public order emergencies.
0:27:40 MS: Okay.
0:27:40 RF: One, if we're looking historically, the public order emergency could be characterized... The October crisis would have been a public order of emergency, if that legislation had existed. Oka could have been characterized as a public order emergency. Part 4 deals with international emergencies. Not war, because Part 5 deals with a war emergency.
0:28:00 MS: Okay.
0:28:00 RF: Okay, so an international emergency and arguably COVID-19 is also an international emergency. Equally, the global war on terrorism could have been characterized as an international emergency, but remember, the Emergencies Act was not invoked for the global war on terrorism or the global war on terror.
0:28:20 MS: Well, none of this.
0:28:21 RF: None of this was invoked. This has never been invoked.
0:28:23 MS: Right.
0:28:24 RF: So right now, and I would suggest the main reason the Prime Minister has responded saying that well, they're looking at whether or not they need to invoke the Emergencies Act is because A, they anticipate the people are gonna ask about it and people have been asking about it. The minute this happened, people start asking about, "Well, you gonna invoke the Emergencies Act?" So if we look at the structure of the Emergencies Act 'cause it's a useful point of discussion, there are significant similarities between each of those four parts. So, parts two, three, four and five. They all have the same structure. They all have provisions dealing with interpretation. Provisions dealing with the declaration. Provisions dealing with the orders and regulations that may be made under that part. Provisions dealing with the revocation, continuation and amendment of the declaration. The need for consultation both provincially and with parliament or with their legislatures and the expiration and revocation of the declaration. So they all mirror each other with very nuanced differences.
0:29:24 RF: And if we look at the legislation... So, I've already mentioned that if the Emergencies Act were invoked by the federal government, by the Prime Minister, by the executive at the federal level, it would more than likely be under Part 2 as a public welfare emergency. I would be extremely surprised if they invoked it under any of the other parts. So if we look under Section 8, for example, of the Emergencies Act. Section 8 deals with the various additional powers that are granted to the executive. If a declaration of a public welfare emergency is in vote. So, for example it permits the executive to regulate or prohibit certain types of travel.
0:30:05 MS: Okay.
0:30:06 RF: It empowers the executive to essentially compel evacuation from certain areas. And remember, I've already mentioned that there is other legislation that's relevant, including the Constitution Act of 1867. In a lot of these cases there's going to be potential either conflict or overlap between the exercise of federal powers and the exercise of provincial powers, which is one of the reasons why each of those parts of the emergency at each type of emergency requires consultation between... And the way it's characterized, between the Governor and Council, which is the executive at the federal level, and the left tenet Governor in council, which is the executive at the provincial level. What it's really saying is the federal executive, if it's going to do certain things under the Emergencies Act that are going to overlap or impinge upon the exercise of the authority by provincial legislation or provincial executive, they need to consult with them. And frankly they're doing that now.
0:31:01 MS: In theory. They're gonna overlap, right? What you're describing doesn't sound like there's any chance it wouldn't overlap.
0:31:07 RF: Absolutely. And this is common in Constitutional Law. There's always going to be overlap, and that's one of the reasons why it's important to remember that at the end of the day, the residual power, particularly peace, order and good government falls to the federal legislation. At the end of the day, the protection of the health of the state of Canada falls to the federal government, but the Emergencies Act, which we have to remember any legislation passed by the federal government has to be consistent with both the Constitution Act 1867 and the Constitution Act 1982. Broadly speaking, what most people are gonna focus on in terms of the Constitution Act 1867, it has to be consistent with the division of powers.
0:31:45 MS: Right.
0:31:45 RF: In other words, the federal legislature, Parliament, can only enact legislation within its scope of authority, pardon me, scope of authority under the Constitution Act 1867. Additionally, any legislation that passes has to be consistent with the charter under the Constitution Act 1982.
0:32:01 MS: Right.
0:32:03 RF: So we look at Section 8 of the Emergencies Act, and we see that the federal government or the federal executive upon invocation, of an emergency can regulate or prohibit travel. It can compel evacuation. It can regulate the distribution of goods, which is vital in a pandemic. It can make emergency payments. It's not always bad. So the invocation of emergency legislation is not always about doing things and inhibit people's liberty, inhibit people's freedom that can be viewed as being an infringement of our rights. It also empowers the executive to make emergency payments.
0:32:38 MS: What's a payment?
0:32:39 RF: So it's very broad legislation. But for example, if they're going to regulate the distribution of goods, it also empowers them to ensure that there's proper compensation for anyone adversely affected by the compulsory distribution of goods.
0:32:53 MS: Okay.
0:32:53 RF: It can make emergency payments to organizations, to people, to provincial governments to assist with the response to the pandemic.
0:33:01 MS: Right.
0:33:03 RF: It gives them emergency powers to create shelter. Now a lot of these things can already be done by the executive right? Both at the federal level and the provincial level. They can create shelters. They can make payments anyway. But in addition to the existing powers that are granted to the federal executive, what the Emergencies Act also does under Section 8 is it uses punishment to enforce compliance. Right? So for example, right now the federal government has said, "We're gonna limit... We're gonna limit cross-border travel." They don't need the Emergencies Act to do that, because they also have the Canadian Border Services to do that. But if Section 8 is applied, if the Emergencies Act is invoked at the federal level, all of these powers and all of these prohibitions that can be placed by the government under Section 8, because we're dealing with a public welfare emergency or potential public welfare emergency, what it also does is it allows them to use coercive powers, right? Punishment either by prosecution, for a summary offense of prosecution, by indictment for contravention of those. So right now, a lot of the restrictions that are being put in place are either permissive or are recommendations.
0:34:24 MS: Right.
0:34:24 RF: Right? So the Emergencies Act is a hammer at the end of the day. But it's a hammer that also has certain aspects of benevolence. But it is not necessarily legislation that must be invoked for the governments to do their job. And that's why I'd suggest that it's... That's why within this context, the provincial government has seemingly invoked the Emergency Management and Civil Protection Act because a lot of what is being done right now is... Are measures that fall within the provincial scope of authority. For the federal government to get involved, they're gonna be focused on the welfare of the nation as a whole. And in fact it would be problematic, for the federal government to focus on individual provinces. That's why there are provincial executives, that's why there are provincial legislatures. So what the federal government must look at is What do we need to do to protect the life of the nation as a whole? What do we need to do to support the provincial governments in providing their services, right? Because if we look at healthcare, we have to remember that healthcare by virtue of the Constitution Act 1867, some section 92 sub 7 places the control or the management of hospitals and medical administration in the province's hands.
0:35:46 MS: Right.
0:35:46 RF: Right? But there is federal legislation that deals with health care, Canada Health Act. That's about money. Canada Health Act is all about the money.
0:35:54 MS: Does anything in the Federal Emergencies Act allowed them to claw some powers back from the provinces?
0:36:00 RF: No. Because it's ordinary legislation, right?
0:36:01 MS: Right.
0:36:01 RF: So the powers of the provinces are vested in the Constitution Act 1867, the supreme law of Canada.
0:36:08 MS: Right.
0:36:08 RF: Right? So with or without the emergencies Act, the federal government and the federal executive could never infringe on the authority of the provinces. Right?
0:36:20 MS: So hospitals...
0:36:21 RF: They couldn't pass legislation that would permit them to do that because it would be contrary with the Constitution Act 1867.
0:36:26 MS: So in Ontario, regardless of what the federal government does within Emergencies Act, the administration of healthcare is gonna remain Ontario's responsibility.
0:36:33 RF: That's right.
0:36:33 MS: As a for instance.
0:36:34 RF: That's right.
0:36:34 MS: So essentially, the Emergencies Act kinda gives the Federal Government the ability to super power its existing powers, but it doesn't actually take anything away from the provinces except when they overlap, and even then the federal government has to consult with the provinces first.
0:36:50 RF: Yeah, the best way to look at emergency legislation, not just at the federal level but federal and provincial level is that legislation... Remember legislation or enactment of statutes falls to the legislatures. Whether it's parliament at the federal level or the provincial legislatures, right? The sovereign entity that enacts laws in Canada is the legislative branch of government.
0:37:14 MS: Right.
0:37:14 RF: The executive is often empowered by legislation, to make regulations or to regulate, but they don't... The executive whether it's at the federal or provincial level, does not make laws. Right they make subordinate laws, regulations, orders in council. But they don't make statutes. Statutes are enacted by the legislatures. So the best way to look at emergency legislation is it grants powers to the executive, it is an enactment by the legislature, whether it's federal or provincial that grants powers to the executive that the executive would not otherwise have. It's about transferring a degree of power to the executive that would normally fall to the legislature, to exercise by enactment and that's why it's important to remember that, and again, using the Emergencies Act as an example, there are certain provisions that are vital within that legislation to remind us that at the end of the day the ultimate sovereign power... Now the ultimate sovereign power people would argue is the people, but through representative democracy, the legislatures.
0:38:21 MS: Right.
0:38:22 RF: So this Part 6 of the Emergencies Act. So we talked about Part 1 was the introduction, parts two, three, four and five deal with the four types of emergencies that we've discussed. Part 6 deals with parliamentary supervision of an emergency. And that's important because under the legislation, the executive, it's not a carte blanche for the executive. At the end of the day, the executive or the governor and council, can invoke the Emergencies Act by declaring an emergency, but at the end of the day, Part 6 deals with parliamentary supervision.
0:39:00 MS: It's worth pointing out, you've got a copy of this in your hands, right now.
0:39:02 RF: I do.
0:39:03 MS: And it's always worth mentioning that this stuff is not a mystery. Anyone can find and download and read these documents.
0:39:09 RF: The beauty of legislation both federally and in Ontario is it's publicly available on the internet. And God knows everyone's stuck at home on the internet, watching YouTube videos of Jimmy Fallon and Jimmy Kimmel, in between those of watching Jimmy Fallon awkwardly deal with his children on a YouTube video, people can check out Provincial and Federal Legislation Online and it's worthwhile them checking it out and there's a lot of news releases to deal with it.
0:39:34 MS: As I'm fond of saying it's surprisingly readable stuff. It's not impenetrable gobbledygook, it's actually pretty comprehensible, if you wanna just sit down and spend some time with it.
0:39:45 RF: And it's worthwhile, because people will... People'll go to Reddit, or they'll go to other areas and try and get information; it's far more valuable to go to the source. So if you wanna know what the Emergencies Act says, go to the Department of Justice Laws website, which is quite easily navigated on the Internet, provided you've got an Internet connection, and take a look at what the Emergencies Act says.
0:40:11 MS: So you've now got Part 6, I'm assuming.
0:40:14 RF: Well, I've got the entire act printed off before me, but what I want to do is take a look at Part 6, which deals... It's actually entitled, "Parliamentary Supervision." And one of the first provisions that you find within Part 6 is section 58, which deals with the consideration of declaration of an emergency by Parliament. And it's worthwhile reading out certain provisions, because I'll take a look at subsection 58 sub 1 which says, "Subject to subsection 4, a motion for confirmation of a declaration of emergency signed by a minister of the Crown together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces with respect to the declaration shall be laid before each House of Parliament within seven sitting days after the declaration is issued." "Shall," that's an obligation placed upon the executive.
0:41:09 RF: So remember, under each of those parts that deal with an emergency, so Part 2 that deals with a Public Welfare Emergency, as I mentioned previously, there's a provision under there that deals with compulsory consultation between the federal executive, represented by the Governor in Council and the lieutenant governors in council. And what we're talking about, if this were invoked, if a public emergency because of COVID-19 were invoked at the federal level, that is consultation with all of the executives, all of the lieutenant governors in council of all of the provinces.
0:41:42 MS: And you got a week.
0:41:43 RF: And you got a week.
0:41:44 MS: Is... What's that say? .
0:41:44 RF: And... But you've got a week after the declaration is invoked for that consultation, for that motion, to be placed before the Houses of Parliament; we've got the Senate, and the House of Commons, so there's two Houses of Parliament. But that doesn't mean there isn't consultation going on right now, in fact, the consultation that is anticipated within the legislation is consultation in advance of the declaration, and we can bet that for the past week or two, at the very least, there's been consultation between the federal executive and all of the provincial executives. They'd be fools not to, quite frankly, but even without the legislation... But that's what's anticipated within the consultation.
0:42:23 MS: Just for the sake of completeness, when we say, "provincial," we mean provincial and territorial, correct?
0:42:29 RF: We do, but we have to remember that the territorial governments are a little bit different than the provinces. They're not exercising section 92 powers, because they're not provinces.
0:42:42 MS: Oh, I did not know that.
0:42:44 RF: So it would probably be a bit of a tangent, one tangent too many. But the territories ultimately fall under federal legislation, ultimately.
0:42:55 MS: Okay, I've learned something... I've learned many other things today, that is one thing among them.
0:43:00 RF: So subsection 2 of section 58 says, "If a declaration of emergency is issued during a prorogation of Parliament or when either House of Parliament stands adjourned, Parliament or that House, as the case may be, shall be summoned forthwith to sit within seven days after the declaration is issued." And the... Probably one of the questions you'll ask me is, "Does that mean everybody?" No, not necessarily. Here's what... And in preparation of this, here's one of the things that I learned that I was not acutely aware of; to have quorum in the House, you only need 20 sitting MPs.
0:43:36 MS: That's not very many MPs.
0:43:37 RF: That's not many at all. But we have to remember we've got a minority government.
0:43:40 MS: 20?
0:43:42 RF: 20.
0:43:43 MS: 20?
0:43:43 RF: 20.
0:43:43 MS: Do they have to have representation from across the country in a certain way or...
0:43:49 RF: That's not something I feel qualified to comment on, but...
0:43:51 MS: Bang out the GTA members and call it a day. Wow. Okay.
0:43:55 RF: But we have to remember we're dealing with a minority government, and we're dealing with a government that's gonna be sensitive to the need to consult broadly.
0:44:03 MS: Yeah, absolutely. Yeah.
0:44:04 RF: So I would anticipate that if Parliament were convened, that the executive would make sure that they had representation across the country, from across the country, and from across the pro... The political spectrum.
0:44:17 MS: From a re-electability standpoint, you wanna be the guy that's not there? I mean...
0:44:22 RF: Or do you wanna be the guy that tries to sneak it by?
0:44:25 MS: Yeah, no.
0:44:25 RF: No. Because, let's face it, from a political perspective, the current government is being judged by the Canadian people on how they handle this. So section 58 deals with the summoning of Parliament and placing the motion before Parliament. Because at the end of the day, under the Emergencies Act, Parliament in its supervisory role can revoke the declaration. So the declaration can be made by the executive, but Parliament does have the power to revoke it. Remembering that if we were dealing with a majority government... So think back to a majority government, saying that Parliament can supervise the executive is a bit like saying within a household, when the parents are telling the kids how it's time for bed, that's like saying the mother supervises the father. If you've got an executive that commands the majority of the House, the majority of the House is probably going to do what the executive wants to do. That's not what we're dealing with right now, but we're also dealing with a Parliament that I suspect would understand the importance of dealing with an emergency. But certainly, the difference for this Prime Minister Trudeau compared to his father is he's not commanding a majority of the House at a time when he's contemplating using the Emergencies Act.
0:45:51 RF: And so at the end of the day, Parliament can be... Or the House of Commons can be reconvened, but it's up to the individual party caucuses to determine whether or not they're going to be present. You can't have a prime minister who engineers a circumstance where the majority of those MPs that are in the house are from his party, because he doesn't control the caucus of another party.
0:46:21 RF: So what we've got here is... And one of the things that the executive is going to consider is, if we do invoke this, first, we have to consult with the provinces, we have to have a plan. And we have to have consulted with the provinces in the development of the plan. And we have to make sure that if and when we invoke the Emergencies Act, A, that we actually need to. Because thus far, they've been able to react without having to invoke the Emergencies Act. And if we deem that it is necessary, we have to do so in a fashion that allows Parliament... Allows us to comply with the obligations under the Emergencies Act to have Parliament authorize to contain an emergency.
0:46:58 MS: Right.
0:47:00 RF: Now another thing to bear in mind is, under the Emergencies Act, there's a sunset clause. An emergency declaration or a declaration of an emergency only last for 90 days. Now, that can be renewed and it can be renewed indefinitely. But there is a sunset clause which forces ongoing consultation, which forces ongoing supervision of Parliament, and that's there for good reason.
0:47:19 MS: Yeah.
0:47:19 RF: Right? Because we don't elect dictators.
0:47:22 MS: Right.
0:47:22 RF: Right? And so, that gives you a general overview on how the legislation works, we're not gonna go in depth into it. There's actually an annotated text book that deals with the Emergencies Act, which I imagine many people in the Department of Justice now are looking over in great detail. And we have to remember that both at the federal and provincial level, there's large numbers of lawyers that work for the government that are gonna be examining this as well to make sure that there's compliance, right?
0:47:50 RF: Because at the end of the day, despite some of the criticism that public commentators like myself might make about whether or not the rule of law is being respected, and God knows I've done that from time to time, whether or not the rule of law is being respected by the executive, there's going to be efforts made both at the federal and provincial levels to ensure that there's compliance with the rule of law. And since we're talking about the rule of law, we can go to the fifth point that I mentioned which is the impact of the charter, which is where everybody's mind immediately goes when they think of an emergency. But as I hope I've demonstrated, you need to first consider a bunch of other factors before you go straight to the charter.
0:48:26 MS: Right.
0:48:27 RF: So, here's what's interesting about the charter, right? The Canadian Charter of Rights and Freedoms was created by, again, the first Prime Minister Trudeau, the same guy who invoked the War Measures Act in 1970, amid a great deal of criticism. Those of us that remember it think back to, "Yeah, just watch me.", right?
0:48:48 MS: Yup.
0:48:48 RF: This is a guy who was bold in his action, this was a guy... He was the father of the Canadian Charter of Rights and Freedoms, as well the Patriation of the Constitution. In the same breath, we was the guy that invoked the War Measures Act during something other than war, amid much controversy and criticism. We have to remember that the Canadian Charter of Rights and Freedoms does not include an express provision dealing with derogation from the rights during an emergency. And I mention that because one of the inspirational pieces of legislation on the global stage upon which the Canadian Charter of Rights and Freedoms was based was the European Convention of Human Rights, which is now 70 years old.
0:49:30 RF: And the European Convention on Human Rights was generally a brainchild of British jurists, although there were others involved as well. But after World War II, there was a view that maybe we should have something that will govern human rights in Europe since there were some human rights violations during World War II. And certainly, the European Convention on Human Rights, not solely the European Convention on Human Rights, was an inspirational piece of legislation for the Canadian Charter or Rights And Freedoms.
0:49:57 MS: But it does have some sort of a emergency escape hatch.
0:50:00 RF: Not some sort of an emergency, it's got an express provision the deals with emergencies. Article 15 of the European Convention on Human Rights is entitled derogation in time of emergency. In time of war or other public emergency threatening the life of the nation, any high contracting party, and a high contracting party, for those that are unaware, means a country, a sovereign state. So, Canada is a high contracting party, not a high contracting party of this legislation, but for example, the United Kingdom is a high contracting party for the European Convention on Human Rights.
0:50:30 RF: So in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. And it goes on.
0:50:51 MS: Huh.
0:50:51 RF: There are some exceptions, right? So, there is no right of derogation from Section 2, which is the right to life. There is no right of derogation from... Sorry, not Section 2, Article 2, there is no right of derogation from Article 2. There is no right of derogation from Article 3, there is no right of derogation from Article 4, Paragraph 1, and there is no right of derogation from Article 7.
0:51:21 MS: So there's certain inviolable rights, but there's others that maybe we can get a little fuzzy on if there's an emergency.
0:51:26 RF: That's right, those are important. So, Article 15 generally permits derogation of certain rights during war or other public emergency threatening the life of the nation of the high contracting party.
0:51:39 MS: But the key point you're making is our charter doesn't do that.
0:51:42 RF: That's right. But since our charter was influenced significantly by the European Convention of Human Rights, from time to time, the Supreme Court and they're selective about this, but if we look at what those non-derogable rights are under Article 15 of the European Convention on Human Rights, so even though they can derogate from certain rights, they cannot derogate from Article 2, which is the right to life. There is an exception under Article 15, and that's except death resulting from lawful acts of war.
0:52:12 MS: Okay.
0:52:12 RF: For obvious reasons, because Article 15 is... Is dependent upon whether there is an emergency or war. So, obviously people do lose their lives in war, and there's a whole regime that deals with when that's lawful, but just because you're in a war doesn't mean you can smeary execute people who you don't like. Right?
0:52:34 MS: Right, yeah.
0:52:35 RF: That's one of the protections. Nor can you derogation from Article 3, which is the prohibition against torture. There's a non-derogation from paragraph one of Article 4, which is the prohibition against slavery. We have to remember that Article 4 of the European Convention on Human Rights deals with slavery and forced labor. So, Article 15 says there's no derogation from paragraph one, which deals with slavery, but there can be compelled labor during times of an emergency. And Article 7 which deals with probation against punishment without law. And so, if we look at the Canadian Charter of Rights and Freedoms, there is no express provision like Article 15 under the Canadian Charter of Rights and Freedoms, but there is Section 1, which states that certain rights in fact, any of the rights under the Canadian Charter of Rights and Freedoms is subject to limitation. So there are no absolute rights under the Canadian Charter of Rights and Freedoms because Section 1, which applies to all of those rights, states that limitations can be placed on those rights that are reasonable within a free and democratic society.
0:53:43 RF: And again, we get back to that context, because the limitation of rights in a free and democratic society will often be dependent upon the context in which those rights are being applied, as we know from Thomson Newspapers from over 20 years ago, Justice Bastarache tell us, "That context is the indispensable admin to the proper characterization of the objective of impugned legislation in determining whether or not it's justified. And that dealt with." So that quote from Justice Bastarache dealt with the application of Section 1 in Thomson Newspapers from 1998. So, even though there isn't an express emergency derogation provision under the Canadian Charter of Rights and Freedoms, generally speaking, you're gonna turn this to Section 1. But before you turn to section 1, certain rights have their own internal test. So Section 2 which deals with freedom of expression, freedom of assembly has its own internal test. Section 7, the right to life, liberty, security of the person, not to be deprived thereof, except in accordance with principles of fundamental justice.
0:54:49 RF: So, to use that as an example, people are deprived of liberty all the time, right? They're deprived of security of the person, from time-to-time. I served nearly 28 years in the Canadian Forces from time-to-time, her majesty required me to deploy overseas on operations. Was my liberty infringed on the fact that Her Majesty ordered me to deploy to Afghanistan? Yeah, I didn't have the choice I was ordered to deploy. Do you think my security, the person was adversely impacted by my deployment to Afghanistan? I would say yes. But I would not suggest that my section 7 right was infringed, and that's because I was deployed in a manner that was consistent with principles of fundamental justice, starting with the fact that I voluntarily joined the Canadian Forces.
0:55:35 MS: Right.
0:55:36 RF: Knowing what I was getting into. So, when you serve in Her Majesty's Forces, raised for the defense of Canada, you are subject to unlimited liability, or at least in the regular force... Always subjected to unlimited liability. That means, I can be deployed where Her Majesty requires me to be deployed, I can be required to use lethal force, and I can be required to be vulnerable to the use of lethal force against me, but I did so voluntarily. So there are internal tasks, applicable to rights under for example, Section 2 and Section 7.
0:56:10 RF: The way that the charter works is, if there is an infringement of a right, it is incumbent upon or the illness is placed upon the applicant or the right holder to show how the government, and it has to be the government. So the executive, the legislature, federal provincial has infringed that right. Whether it's right of assembly, right of freedom of expression under section 2, right to liberty or security of the person under Section 7. First, that right holder has to prove on a balance of probabilities, that that rate was infringed.
0:56:43 RF: Once the applicant proves that, then the owner shifts to the government to prove under Section 1, whether that infringement was consistent with principles under a free and democratic society, and that's where that context is gonna come in. That's what Justice Bastarache was talking about in Thomson Newspapers that context is gonna dictate that, right?
0:57:07 RF: So, the derogation or the infringement of charter rights may or may not be defended under Section 1, depending upon the context. And that Section 1 task for those people who are not indoctrinated in the law, goes back to an Oakes case and a little bit of a derogation on this topic. Everybody remembers case law, based upon... Particularly when it comes to the criminal code-based upon the accused or based upon the parties. So, any Canadian lawyer is aware of the Oakes Test.
0:57:41 MS: Right.
0:57:42 RF: If I were to ask even a law student who's completed first year here at Queens, "What is the test for determining whether or not an infringement of a right is consistent with a free and democratic society?" They'll tell me, "The Oakes test." Then if I ask them, "Who is the lawyer?" Most people won't be able to tell me that. So we remember the accused, we don't remember the lawyer. The lawyer was a guy, with name of Geoff Beasley and I know that because I know Geoff Beasley. I encountered him later on in his career, when he was a deputy current attorney. An outstanding guy, an outstanding lawyer. Here's the interesting thing, so probably the most fundamental case, and I mentioned this to show law students, what their future can be like? One of the most fundamental charter cases in the history of charter law. The Oakes test, was decided back in 1985, started back in 1983, soon after the charter had been an Act and introduced and entrenched in the Constitution Act 1982. Geoff Beasley started that case when he was a JD student.
0:58:49 MS: Really?
0:58:50 RF: He's representing... And before the Supreme Court of Canada, it was the Crown appealing a judgment of the Court of Appeal of Ontario. So Geoff Beasley was I think a second year call, maybe? Maybe approaching his second year as a lawyer, appearing before the Supreme Court of Canada, and successfully defending a principle that had been upheld by the Court of Appeal for Ontario, that has now defined Charter interpretation for the last 35 years.
0:59:19 MS: Wow.
0:59:21 RF: So you never know when you're going to get an opportunity like that. So the Oakes test, the deals with balancing the infringement of a right has essentially three parts to it. So first, there has to be... And this onus is placed on the Crown, there has to be a pressing and substantial objective, whether we're dealing with a legislation that's enacted or the actions of the executive under legislation. There has to be pressing and substantial objective identified with the infringement of the right. And that response must be proportional in the three-part test for proportionality. There has to be a rational connection between that pressing and substantial objective and the infringement, the action taken under the legislation or by the legislation must represent minimal impairment of that right in achieving that pressing and substantial objective, and there must be proportionality. And we get that largely from European case law. So any time in an emergency, the Crown purports to infringe a right. There's going to be that question of whether that can be justified under that test. And there's nuances to that test that have been refined through other cases, but that's what Oakes sets up for the test.
1:00:48 MS: Right.
1:00:48 RF: And here's where context is important. So I mentioned earlier in our discussion, the internment of Japanese-Canadians during World War II. And that was done under the War Measures Act. After World War II, there was a reference made to the Supreme Court of Canada, which was later upheld by the Judicial Committee of the Privy Council, but a lot of people like to focus on the actual judgment from the Supreme Court of Canada because there were several different judgments written by different judges. And it actually upheld the actions under the War Measures Act. And that's one context where during an emergency, one group of people is treated differently than another group of people. That's where that proportionality comes out. And a lot of people when they think about emergency legislation, they think in a modern sense, how the government treats people who are suspected of terrorism. And that proportionality balancing is about balancing the good of the state, the public good, against an infringement of rights of a very select group of people.
1:01:56 MS: Right.
1:01:56 RF: And often people who are racially identifiable. That's a different context than, for example, what we're seeing largely now, which is a potential infringement of rights of everybody and weighing that on a proportionality basis for the public good. And that changes the context I had suggested significantly because if the government comes out and says, "We're going to segregate these people who look different than everybody else because we doubt their loyalty to the Crown, because they have Japanese ancestry, because they have Japanese ethnicity, and we're gonna set them in internment camps." That's an infringement of liberty that's markedly different than saying, Right, we want... We're going to order all Canadians to do X, Y or Z."
1:02:50 MS: So suspending all travel.
1:02:52 RF: Suspending all travel.
1:02:53 MS: That's an infringement of our rights.
1:02:55 RF: Absolutely.
1:02:55 MS: We should have the right to move freely and the government can, under the Emergency Act say, "We're pushing pause on that."
1:03:01 RF: Well, actually, it's not that we should have right to move for freely. The Charter of Rights and Freedoms has actually gives us that right, a freedom of movement.
1:03:08 MS: Oh, yeah. No, no.
1:03:08 RF: But that's important because people don't realize that.
1:03:10 MS: Yeah.
1:03:10 RF: People, when they think about the Charter of Rights and Freedoms and they think about, for example, Section 2 they think about freedom of expression, they think about freedom of assembly. But it also includes freedom of movement. I can move anywhere in Canada, that's my right as a Canadian citizen, that's my right as a person in Canada. I can move anywhere in Canada. And so, if they're going to infringe that right, that is a deprivation of not only my liberty under Section 7, but also my right under Section 2. But we have to bear in mind that the context is such... That they're not limiting Matt's right, or Rory's right, or people who live in Kingston. The likelihood is that they will limit the freedom of movement on a great many people, and that changes the context. It's one thing to say, "Well we're not gonna let people of a particular race." Try defending that. Where's your rational connection? Where is your minimal impairment? But if they say, "Well, if you have tested positive for COVID-19 or you demonstrate the following symptoms, we are gonna prohibit you from going to a public place, is that infringement of your liberty? Yeah. Is that infringement of your Section 2 right? Yeah. Is it defensible within a free and democratic society? Well, in the context, quite possibly.
1:04:25 MS: That's where we have the Oakes test.
1:04:26 RF: That's where we have the Oakes test. So we don't really need an Article 15 under the European Convention on Human Rights. We've got a slightly different mechanism for derogation.
1:04:35 MS: Gotcha.
1:04:36 RF: And it's actually a much more flexible derogation it implies. During, in an emergency, there's going to be... That's going to alter the context. But it also ensures that the Crown, whether it's federal or provincial, because their actions that can be taken by the provincial government that could inhibit our rights under the Canadian Charter of Rights and Freedoms, which are still an infringement of those rights under the Canadian Charter of Rights and Freedoms where they have to consistently think of, "Well can we defend this? What is our pressing and substantial objective? That's rather obvious. Does this represent something that is rationally connected to that objective? Is it a minimal impairment? It doesn't have to be the least possible, but within a scope of the least possible impairment. And finally, is it proportional? And when you're dealing with a pandemic, I would suggest meeting that obligation, meeting that test is going to be easier than when say, you're singling out people because of a "global war on terror."
1:05:38 MS: Right.
1:05:39 RF: Or singling out people because by virtue of their ethnicity, you doubt their loyalty to the Crown. And so as a result, we may well see infringement of charter rights during the governmental response to the pandemic, whether it's the provincial, federal, or both responding to the pandemic. But just because they're presumptively infringing a right doesn't mean it's not defensible in a free and democratic society, provided they can establish that pressing and substantial objective and meet the three-part test under Oakes.
1:06:12 MS: Right.
1:06:13 RF: So that's very much a wave top discussion about this issue. And about an hour long, there's a little bit more than an hour long we've talked discussion.
1:06:22 MS: But by the standard this podcast, this has been extraordinarily comprehensive. It's been fantastic. Thank you so much, Rory.
1:06:28 RF: You're welcome.