Philippe Lagassé: POEC and the primacy of the executive
Hard cases make for good constitutional theory, and the use of the Emergencies Act has clarified the fundamental place of the executive in our system of government.
By: Philippe Lagassé
Hard cases make for bad law, the saying goes. That’s no doubt true. But hard cases do make for good constitutional theory. They shed light on our unstated constitutional precepts, things we don’t really talk about but are fundamental to how we govern ourselves. One hard case is the federal government’s invocation of the Emergencies Act to deal with the “Freedom Convoy” that plagued Ottawa in the winter of 2022. In particular, this case exposes things we don’t usually acknowledge about the executive in our system of government.
The executive doesn’t just enforce and uphold the law. It also interprets law. There’s a reason that the federal government employs large number of lawyers in the Department of Justice and across various departments. Yes, the executive is primarily there to act, but it needs to be sure it is acting according to legal authority, be it parliamentary statute, government-issued regulations, common law powers, Crown prerogative, or the constitution. Most of the time, this isn’t controversial. Laws can be fairly clear and tell executive actors what they can do, may do, must do, or can’t do.
In a lot of cases, though, the legal basis of action can be murky. There can be varied ways of understanding legal authority or the lack thereof. There are also rare cases where a plain reading of the law says one thing, but the executive takes a different view because ministers believe they need to act to deal with a pressing problem.
Last year’s declaration of a public order emergency by the federal government under the Emergencies Act is a good example. As Leah West and David Schneiderman have argued, the Act includes three criteria that must be met before a public order emergency can be declared. One of these is that the emergency must met the definition of a “threat to the security of Canada” under the Canadian Security Intelligence Services (CSIS) Act. As part of the commission into the public order emergency, however, government ministers and officials testified that the government lawyers interpreted “threat to the security of Canada” to be broader than the definition found in the CSIS Act. Witnesses testifying at the POEC further emphasized that the Emergencies Act allows cabinet to make a reasonable judgment about whether a threat to Canada exists.
The POEC commissioner, Justice Paul Rouleau, will report on the government’s decision in due course. Whatever he finds, though, the government’s public order emergency declaration tells us something important about the executive and the law. West and Schneiderman are probably correct that the Emergencies Act was meant to be interpreted in a specific way when it was drafted in 1988. But the federal government has likely convinced a majority of people that they acted according to necessity and that the Act provides flexibility. In making this point, the ministers and officials echo Cicero’s observation that salus populi suprema lex esto: the safety of the people should be the supreme law.
Public acceptance of this rationale will rightly make some nervous. This reasoning grants the executive notable discretion in an area where Parliament apparently sought to limit it. Yet it exposes an underlying part of our constitutional order, one we usually don’t like to acknowledge: when the executive believes that necessity requires it to act in the public interest, the government will find legal basis to do so, subject to judicial review and political accountability after the fact.
A number of people who agree with this idea in the context of the “Freedom Convoy” would be horrified if it was invoked against causes or protests they believe in. This highlights another aspect of our subconscious constitutional thinking: we tend to be inherently skeptical of the executive, except when we suddenly want it to protect us.
The executive has been labelled the “most dangerous branch” of the state for a reason. Depending on the circumstances, executive agents have the power to arrest and detain, use force, engage in surveillance, look into our personal affairs, and so forth. Chances are, if your rights are violated by the state, it will be by an executive actor and the discretionary authority they have over you.
In light of this reality, our constitutional history evolved slowly but surely to control the executive. Habeas corpus developed in the middle ages to limit the Crown’s ability to detain and imprison. The Glorious Revolution of 1689 ensured Parliament’s supremacy over the Crown, meaning that the legislature ultimately decides what authority the executive can exercise. The seminal English case of Entick v. Carrington established that the executive must have an express legal basis for its actions. Judicial review of executive action expanded over the centuries until it was established that all activities of government are reviewable for constitutionality. An important part of our constitutional story, then, is about constraining the executive through the rule of law.
But the story has another side. Less discussed is the fact that executive power expanded as the expectations and demands of the state grew. Legislation now empowers the executive as much as it controls or limits it. Indeed, in a national security context, Parliament can allow the executive to act contrary to other laws, subject to the reasonable limits clause of the Charter of Rights and Freedoms. While the Crown’s royal prerogatives have been narrowed and displaced in many cases, the executive now enjoys important “statutory prerogatives”: significant grants of discretionary and regulatory authority provided by legislation.
The courts, of course, can review the government’s actions and politicians must ultimately answer to the people for their decisions in our democracy. But the judiciary can only review so much and the public’s attention span is only so wide. Our motto when it comes to executive power is “trust but verify… in a few cases.”
Our Janus-faced approach to the executive was well captured when the justice minister testified before the public order commission. Part of the evidence dealt with text messages where he joked about how many tanks could be called into the deal with the “Freedom Convoy.” While he was jesting, his comments suggest that involving the military to help deal with the problem wasn’t entirely out of the question. The armed forces, after all, have been asked to deal with all sorts of internal crises since Confederation, and Canadian law includes various mechanisms for military assistance to law enforcement. Those who support the government’s decision to invoke the Emergencies Act, moreover, would likely have accepted a military role, too.
Yet, as any seasoned observer of Canadian politics will recall, in 2006 the Liberal Party warned Canadians that there could be an increased “military presence in our cities. Canadian cities. Soldiers with guns. In our cities. In Canada. We did not make this up.” Soldiers in the streets with guns are indeed something we should try to avoid at all costs. In certain circumstances, however, we’re willing to quip about soldiers in the streets with tanks.
Executive power is either dangerous or necessary, depending on the situation we finds ourselves in, and what we see as threats to our state and society. It's hard cases such as the Emergencies Act that lay bare the role that executive discretion plays in our constitutional system.
Philippe Lagassé is associate professor and Barton Chair at Carleton University.
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