COVID-19 and the Cabinet’s Emergency Powers.

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March 21, 2020.  Briefing by Prime Minister Trudeau, responding to a question:

PM: “We have not removed from the table any options. We are looking at a broad array of measures that we can move forward with. At this time we do not see the federal Emergencies Act as an essential tool today, but we are continuing to look at the situation and will make decisions based on the best recommendations of science.”

Question: “What do you need to see before declaring a federal emergency?”

PM: “I think the key issue is are there things that we need to be able to do as a government that we cannot do with the very strong existing regulations that are in place and that our government has as tools.”

 

Background

 

You would have to be a hermit living in a cave not to have heard of the COVID-19 pandemic.  Governments all over the world have introduced special laws to deal with the emergency.  As the rates of infections, hospitalizations and deaths have increased, so has the severity of government responses.

But the existing legal powers of government may soon become insufficient.  Prime Minister Justin Trudeau has recalled Parliament to enact legislation permitting special financial measures to support Canadians impacted by the closing of schools, workplaces, restaurants and bars.  That is his first Parliamentary step, but probably not his last.

There are two Canadian laws that have never been used before, but may have to be if conditions worsen.  These are the Emergencies Act and the Quarantine Act.  I had not been familiar with either of these laws until this pandemic arose, but now have read them both.  Fortunately, because these laws have not been used before there is no large body of case law to wade through to understand how they have been interpreted.  Because they have never been interpreted, my interpretation is as good as, or as bad as, anyone else’s.

As between the two laws, I would expect the federal government to use the Emergencies Act first, and if it later becomes necessary, to use the Quarantine Act.  Both of these laws give the government extraordinary powers of a somewhat dictatorial nature.  Because giving a government dictatorial powers is always dangerous, these laws provide some soft safeguards which, one can only hope, will prove to be adequate.

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That Pipeline Again

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Background

In a previous blog post (The Crown’s Duty to Consult First Nations) I criticized the August 30, 2018 Federal Court of Appeal (FCA) decision quashing the Cabinet’s approval of the Trans Mountain Pipeline expansion.  Since then there have been new hearings by the National Energy Board and new consultations with First Nations, resulting in a new Cabinet approval on June 18, 2019.  That new approval was challenged again in the FCA.

On February 4, 2020 the FCA issued its decision (Coldwater Indian Band).  The FCA upheld the Cabinet’s decision as being reasonable, including the Cabinet’s finding that the consultations with the opposed First Nations had been proper.

 

Two Panels, Two Attitudes

There are some interesting differences between the 2018 FCA decision and this one. The heroes and villains have changed places.  In reading this panel’s thorough and detailed legal analysis I was struck by what I read between the lines.  The critical tone of this panel in describing the posturing in the submissions of some of the First Nations is a sharp contrast to the critical tone of the 2018 panel in describing the Crown’s consulting staff.

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Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?

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If you have not read Part 1 of this post I suggest that you read it first, here. This Part is for those interested in law and how it develops but is not a technical law journal article. For anyone wanting a detailed legal analysis I suggest reading Paul Daly’s 5 blog posts starting here.

A Bit of History

Changing Courts, Changing Attitudes

Until about the early 1980’s most Canadian judges were men, usually appointed from law firms representing businesses and governments.  Judges appeared generally sympathetic to litigants like their former clients and less sympathetic to unions, women and the less fortunate in society. As a broad generalization, judges were to the political right of the average Canadian.

Gradually, judicial appointments became more diverse and judicial attitudes evolved. The attitude change was substantially influenced by administrative law professors like Bora Laskin (who eventually became Chief Justice of the Supreme Court of Canada). Some law professors (then and now) serve as labour arbitrators or members of administrative tribunals like Labour Relations Boards or Human Rights Commissions. Unions will reject the appointment of arbitrators unless they believe them to be at least somewhat sympathetic to unions. Hence these arbitrators and labour board members led the way, both in law journal articles and as judges, to offset the perceived judicial bias against unions and labour relations adjudicators.  The attitude moved leftwards and has remained there, but whether you see this as having moved to the political centre or to the left of centre depends upon your political views.

Judges protected labour adjudicators by declaring that labour boards had labour relations expertise equal to or greater than generalist judges. In practice this was usually true.  “Expertise” became shorthand for “stop picking on them” and show some deference. Considerable respect for such decision-makers has been the judicial policy for decades.

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Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?

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Two different biblical answers:

“The Lord…visits the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.” (Exodus 34:6-7 = Deuteronomy 5:8-10)

“The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son.”  Ezekiel 18:19-20 ESV

AV

Photo credit: THE CANADIAN PRESS/Chris Young

“Alexander Foley” (above) was born in Toronto in 1994. At the time, his parents were living under false names, posing as Canadians, while being Russian citizens and undercover spies for the Russian foreign intelligence service. The child growing up had no idea that his parents were spies. He believed that his name was Alexander Foley, and that he was a Canadian citizen by birth. He lived as a Canadian child, and held a Canadian passport.

However, in 2010, after the family had moved to the United States, the FBI arrested his parents and charged them with espionage. They pleaded guilty and were deported to Russia. Alexander’s whole world as he knew it fell apart.

He was 16 at the time, and suddenly found himself living in Russia, with the strange new name Alexander Vavilov.  After his parents’ arrest, Alexander wanted to renew his Canadian passport. But in 2014, Canada’s Registrar of Citizenship cancelled his certificate of citizenship, preventing him from obtaining a passport. He challenged her decision in court.

Does Canadian law require that the innocent son (now age 25) be denied Canadian citizenship because his parents were Russian spies?  Should the court allow the Registrar’s decision to remain in force, or should it overrule it? That was the legal issue before the Supreme Court of Canada (SCC) in this case.

But the SCC went beyond Alexander’s personal issue to examine, and to try to repair, the confused state of Canadian law governing judicial review of government decisions. Was  the SCC successful? That is the subject of Part 2 of this post.

 

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Will the Paris Agreement Fix the ‘Climate Crisis’?

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Preparations are now underway for COP25, a global climate conference of thousands of politicians and observers, opening  December 2 in Madrid.  This conference was to be held in Chile, but the Chilean President cancelled hosting it because of violent riots, sparked by large increases in transit fares and electricity prices.

One COP25 agenda item is the 2015 Paris Agreement, which was supposed to fix the climate crisis. Even if there is such a crisis, the Paris Agreement won’t fix it. [But is there really a climate crisis? You may want to read my two earlier posts on that issue, starting here: The Climate Crisis: Don’t Panic, It’s Not the Titanic.]

Everyone talks about the Paris Agreement, but hardly anyone reads it. The mainstream media says it was to reduce global CO2 emissions.  But that is not what the Agreement says or does. It doesn’t require any country to reduce its emissions.  Some of the planet’s largest emitters say they will increase their emissions — not just a little, but a lot.

China, the world’s largest emitter and growing rapidly, already accounts for 29% of global CO2. (The USA represents only 13%, Canada 1.6%.)  India, with its less developed but rapidly growing economy, creates another 7%. Yet both China and India (and several Africa countries) project increased emissions with no numerical limit.

Even if all the 195 nations that signed the Agreement do what they said they will do, the net effect will be no significant reduction in CO2 emissions. There is a huge disconnect between what the Agreement is supposed to do and what the nations have said they intend to do.

The current panic over the ‘climate crisis’ makes it politically essential for most governments to respond with dramatic displays of determination to “fight climate change” and achieve carbon neutrality by 2050. Unfortunately, as Nobel Prize-winning economist William Nordhaus has written in The American Economic Association Journal of August 2018:

“The reality is that most countries are on a business-as-usual trajectory of minimal policies to reduce their emissions …. The international target for climate change with a limit of 2°C appears to be infeasible with reasonably accessible technologies even with very ambitious abatement strategies.”

The only safe political path between the panic and the possible is to pretend to do the impossible. And that is the real purpose of the Paris Agreement.

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Every Country is Warming Twice as Fast as the Average!

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If you read the recent media headlines that Canada’s temperature is warming more than twice as fast as the average, you would probably believe it, as I did at first, and fear that Canada is facing a unique climate emergency.

But the same “warming twice as fast as average” headline recently appeared for numerous other countries: Australia, Finland, China, Sweden, Russia, Britain, all of Europe, Singapore and Japan. How can all these countries be warming twice as fast as the average?

Surprisingly, these media stories are neither a joke nor a mistake. They are a trivial fact, turned into a frightening story by deceptively vague language.

 

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PROFOUND ANSWERS TO A PROFOUND QUESTION: IS THE GLASS HALF EMPTY OR HALF FULL?

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For some lighter reading than my normally intense posts, I asked some well-known people for their opinions on this profound question: is the glass half-empty or half-full? As they were all much too busy to answer my question in person I had to make up their answers myself.

 

Donald Trump: There’s no water in that glass. It’s all fake news.

Al Gore: Unless you agree with me that the glass is empty you are a denier.

United Nations Panel on Climate Change: Our scientists say with absolute confidence that climate change will cause the water in the glass to boil by 2100.

Greta Thunberg: Your house is on fire and all you have to put it out with is half a glass of water? How dare you!

Oil Industry Spokesperson: The water looks clean to me.

Greenpeace: Let’s organize street demonstrations and protest strikes until the glass is entirely filled.

WWF: Don’t worry, we will tell Trudeau to make it subject to our new environmental assessment law, for 10 years of hearings.

The Guardian: We will not stay silent on this issue.

David Suzuki: We are going to sponsor a constitutional lawsuit to obtain a judicial determination of the question.

Prime Minister Justin Trudeau: I drank the rest of the water in the glass, but I only did it to save Canadian jobs.

Environment and Climate Change Minister Catherine McKenna: The water in that glass is subject to our new “hydrogen tax” based on the polluter pay principle.

Former Attorney-General Jody Wilson-Raybould: I’ll drink the water, but I refuse to drink the Kool-Aid.

Conservative Party Leader Andrew Scheer: If it votes Tory, what do I care how much water is in it?

NDP Leader Jagmeet Singh: If the water in that glass came from a wealthy tap it will have to pay wealth tax.

Green Party Leader Elizabeth May: If the water isn’t green I’m not drinking it.

Conrad Black: The aqueous liquid in that non-crystalline, transparent amorphous solid occupies precisely half of its volumetric content.