The law of expedience

By Marc-André Séguin July - August 2012

Adopting emergency legislation in Canada is increasingly in vogue. Should we worry?

The law of expedience Photo of Louis-Philippe Lampron by Spyros Bourboulis

For Louis-Philippe Lampron, the Quebec government’s decision in May to pass an emergency law in an attempt to force the end of the student conflict was the straw that broke the camel’s back. The Laval University’s professor calls it an “unjustified and authoritarian” move for a government that had not yet exhausted all options in trying to solve the crisis.

Shortly after it passed Special Law 78, Lampron published an open letter, signed by 60 law professors, denouncing the Quebec government’s methods in trying to justify the law, as well as some of its provisions which, “on their very face, raise serious doubts as to their compatibility with the applicable charters in Quebec.” 

The law suspended the spring semester at institutions affected by the strike and imposes stiff fines on anyone who disrupts or tries blocking access to class once they pick up again. It also places restrictions on where, how, and for how long people can protest in Quebec. In June, Quebec’s Superior Court province rejected a petition to scrap two of the law’s provisions. Another petition will be heard this fall, claiming the law is unconstitutional and should be declared invalid. Prior to its adoption and before its contents were made public, the Quebec branch of the Canadian Bar Associa­tion publicly approved the adoption of a special law, given the context of unfolding events at the time. 

According to Simon Potter, a partner at McCarthy Tétrault in Montreal and a former CBA president, emergency laws are necessary under exceptional circumstances and justifiable in the case of the student protests. “Requiring eight hours notice and an itinerary before a protest strikes me as reasonable given how troubling the situation was,” he says. 

Even so Lampron and his co-signatories argue that the law should have been a measure of last resort. They argue that the government was rather too quick to pull the trigger.

Photo of demonstration by Pierre Charbonneau

Growing trend
Ever since the 1950’s, governments — both federal and provincial — have been more and more inclined to pass special or emergency laws to address social and labour crises. The trend, some observers fear, is gaining momentum. 

In the last year, Ottawa voted back-to-work legislation three times. Bill C-39, the latest to become law in May, forced workers at Canadian Pacific back to work after a one-week strike. The opposition cried foul, claiming that the government was favouring the employer over workers at the negotiating table. Before that it had passed similar legislation to force strikers at Air Canada back to work in March. In June of last year it did the same to workers at Canada Post. This wasn’t the first time the three companies had been targeted by emergency legislation.  But all three being targeted in such a brief period of time is unheard of, observers say.

The Quebec government has also resorted to emergency legislation quite frequently. Prior to the adoption of Bill 78, the Charest government forced striking government lawyers and Crown prosecutors back to work, initially ignoring their demands for a 40 per cent wage increase and the hiring of more staff. In October 2010, the government voted to expedite granting a $1.3-billion contract to a Bombardier-Alstom consortium for the supply of new subway cars to Montreal’s metro system, thereby bypassing the tender process normally required by law.

So is emergency legislation becoming the weapon of choice the state can pull from its legal armoury? Perhaps, says Lampron. Officials may have concluded that adopting special legislation no longer carries much of a political price. “They are now more in­clined to use it because it is so expedient.” 

And yet it does comes at a cost, says Simon Ruel, a partner at Heenan Blaikie and Chair of the Administrative Law Section at the CBA’s Quebec branch. “We seem to have a problem of parliamentary democracy. When procedures are rushed through, groups such as the Canadian Bar Association and the Bar cannot be as efficient in formulating their views and making recommendations. MPs in charge of studying bills, elected to do just that, then have little time to debate and reflect.”

Not-so-private bills
Privately sponsored bills present a similar set of concerns. Traditionally, their purpose was to confer special advantages to specific individuals, or to exempt them from the application of the law under special circumstances. As is the case with emergency laws, private bills should be used in exceptional circumstances, when it is preferable to exempt an individual or an entity from a general rule, rather than change the law to accommodate the beneficiary, without considering the impact on society as a whole.

Photo of demonstration by Pierre Charbonneau

But what is left of this interpretation? In 2011, Quebec’s National assembly passed a controversial private member’s bill intended to protect media company Quebecor’s interests in the building of an arena that would eventually be the home of an NHL team returning to Quebec City.  The law pre-emptively blocked any potential lawsuit against the deal granting the Quebecor media empire control over the future arena, declaring it compliant with respect to municipal contracting guidelines — this in spite of the fact that there had been no tender process as mandated by law. The CBA’s Quebec branch had, at the time, expressed concern to the effect that the adoption of particular rules to bypass generally applicable law created “a dangerous precedent which would compromise the stability of Quebec’s judicial order.” Even so, Quebec’s Superior Court has upheld the validity of Bill 204 in a recent decision.

Constitutionally, of course, Parliament is and should be sovereign. But such quick and easy legislative solutions also weaken the rule of law, some experts argue. Indeed, every time an emergency law is passed, it underscores the failure of the existing general legal framework. Ultimately, politics — and public opinion — will have to save the day. Only an electorate intent on keeping public officials in check can put the brakes on the excessive use of emergency legislative tools. “The state does not only manage individuals,” warns Ruel. “It manages a society.” 

Marc-André Séguin is a journalist and lawyer based in Montréal.
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