Thank you.
My presentation will be broken down as follows: First, I will briefly share my interpretation of the bill. Then I will identify some of the bill's shortcomings, keeping in mind best practices from around the world. Lastly, I will touch on some amendments that I think would help.
I won't be able to discuss the amendments in detail, but I will explain the idea behind them.
In short, the bill under consideration, Bill C‑5, the building Canada act, gives the executive the power to largely circumvent ordinary federal legislation—whose purpose is to protect the common good or public interest—in order to carry out projects of its choosing. That means the executive can allow projects it selects to circumvent legislation that would normally apply. My point is that this bill grants an exemption power. General law is being disregarded. The bill provides for the use of exceptional measures and vests the executive with that exemption power in relation to general law. That is the first clue.
Furthermore, the bill contains a sunset provision. I'll talk more about it later, but what that unfortunately means is that the five-year limit applies not to all the powers provided for in the legislation, but perhaps to the main power, the government's power to deem a project to be in the national interest. There is a sunset provision. That is the second clue.
The third clue is the current process. The bill is being fast-tracked, under time allocation.
The bill provides for the use of emergency measures. It's an emergency bill. It is not a bill that provides for the use of federal emergency power as the power that the one central authority has to intervene in areas of provincial jurisdiction.
I had a chance to hear a bit of what my colleague Professor Robitaille said earlier. In my view, the current bill provides an exemption from federal legislation, but it does not explicitly provide for federal intervention in areas of provincial jurisdiction, as the federal emergency power does. Nevertheless, it does contemplate a number of emergency measures, since it is possible to disregard laws that normally seek to protect the public interest.
Countries governed by the modern democratic rule of law need to be able to respond to emergencies. That is true. It is also true that those decisions are up to the executive. Doing so usually comes with a political cost, but deciding whether a situation constitutes an emergency is an executive decision.
Canada's constitutional jurisprudence recognizes, as do many other countries, that an economic situation can constitute an emergency. That is true. Here, that has been the case since 1976.
That said, to my mind, emergency best practices in countries governed by the modern democratic rule of law are understood to mean that the use of emergency powers comes with rigorous parliamentary scrutiny. The idea is this. Certainly, a government needs to be able to respond to an emergency by invoking exceptional powers. Certainly, judicial oversight decreases in such a situation. Conversely, the notion that the emergency can remain within the confines of the law rests on the parliamentary oversight of the use of emergency powers.
For example, the federal Emergencies Act is a model in that regard. Had it been invoked during the last major emergency, the government could not have governed as long without Parliament.
That is the paradox: The use of emergency measures usually comes with robust parliamentary oversight. That is the idea behind the amendments that I wanted to recommend or that I would like to see proposed. A bit like Canada's Emergencies Act, this bill should stipulate, to begin with, that all exceptional powers being conferred upon the executive cannot be exercised for more than five years. I believe it should also stipulate that the powers cannot be exercised when Parliament is dissolved or prorogued.
Second, the use of emergency measures must be transparent. That means being more open about the fact that these are emergency measures. One of the problems modern liberal democracies have is allowing the emergency to go on and the exception to become the rule. The line tends to be blurred. Governments tend to blur the line between the rule and the exception.
In my eyes, this bill is being presented as an emergency that is unstated or hidden. It's normal for a government to think that there is an emergency. That is for elected officials to decide. A political debate needs to be had, but for that to happen, designating the situation as an emergency needs to be done transparently.