Ottawa and the Emergencies Act: A Big Round Table

Name: Ottawa and the Emergencies Act: A Big Round Table
Start: 2022-02-23
End: 2022-02-23
Location: Online

Sponsored by Osgoode Hall Law School and the Nathanson Centre on Transnational Human Rights, Crime and Security of York University

Moderators/Hosts:

Craig Scott, Professor of Law &

Associate Dean (Academic), Osgoode Hall Law School

and François Tanguay-Renaud, Associate Professor &

Program Director, Osgoode Certificate in the Law of Emergencies

This event is organized as a wiki-style round table with a range of analysts contributing 5-minute interventions on various legal and law-informed policy aspects of the invocation of the Emergencies Act by the Federal Government. Intervals for cross-comment and considerations of questions or comments from the audience in Chat will be inserted at a couple of points in the proceedings.

Consideration will be given, inter alia, to:

the structure and procedures of the Emergencies Act itself, including its various safeguard provisions (including parliamentary vote, judicial review, and post-emergency inquiry) and including the significance of the Act’s normative references to the Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights;
what “precedent” has been set by the invocation, including for the methods and longevity of other reasons for and forms of protest, and what future use may yet be made in the present crisis or its immediate successors;
whether and how these protests and the state response reveal much deeper issues than the Emergencies Act,including with respect to how racialization and forms of policing in the present relate to other patterns of ‘race, law, protest and policing’ – especially as revealed by an understanding of legal history of the Canadian administrative state’s general and ‘emergency’ interactions with Indigenous peoples, with other racialized communities such as Black Canadians and Japanese Canadians, and indeed with French-Canadian Quebeckers in the era of the War Measures Act’s use;
administrative law standards of lawfulness and standards of judicial review, and the interrelationships between administrative law and Charter review;
the basis for Charter challenges to the baseline proclamation of the existence and scope of an emergency, to specific measures taken or contemplated, and to the Act itself, including querying how section 1 functions if the threshold characterization of an “emergency” is accepted by the judiciary;
division of powers rationales, and constitutional complications, for both the Act and its present invocation;
relevance of statutory interconnections between the Emergencies Act, the CSIS Act, the Criminal Code and various law federal, provincial and municipal statutes and by-laws related to policing and law enforcement, including with respect to whether there is any policing ‘gap’ that the Emergencies Act could lawfully fill;
approaches to statutory interpretation including when a factual determination is central to the triggering of the Act and in light of the relevance or limited relevance of previous Supreme Court of Canada doctrine on deference to a parliamentary determination that an emergency exists;
a variety of evidentiary and forensic dimensions, including the extent to which evidence-based apprehendedweapons violence, trauma for or harm to children, or follow-up protests can be the basis for declaring an emergency in order to have more tailored and ongoing measures available and the extent to which the crisis is a transnational one involving “foreign interference” whether by non-state or state actors;
what obligations of divulgence and transparency exist at varying stages (parliamentary and public debate; judicial proceedings; Emergencies Act inquiry; access to information requests; and so on) for public access to evidence that was considered by the government in determining the existence of an emergency and the measures justified – especially when sections 38 and 39 of the Canada Evidence Act may be invoked by the government to attempt to maintain secrecy; and
whether the Emergencies Act needs to be amended or overhauled.

The discussion will also ask how the Emergencies Act’s invocation and measures relate to associated developments: administrative and constitutional challenges to the invocation and/or the Act by civil society actors and by two provinces; the prior declaration of an emergency by Ontario; the Ottawa residents’ lawsuit against protesters in Ottawa (and the resulting injunction); the City of Windsor injunction obtained against the Canada-US bridge blockers; RCMP enforcement actions in other provinces; the contributions of US media and alt-Right forces to the crisis; and the request by the US Senate to Facebook for information on whether any accounts related to the Canadian protests were false fronts for Russian actors.

Confirmed participants include: