Legal Education in Times of Emergency – Some Reflections

It seems almost trite to say that we are living in strange times. One ‘emergency’ seems to follow another. Indeed, as normalcy recedes in our memories we now seem to have trouble determining if the strange events we confront really are ‘emergencies’ or just some kind new normal.

In Ontario, special measures made under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, to address the worldwide pandemic have been in place for almost two years. Under the British Columbia Emergency Program Act, R.S.B.C. 1996, c. 111, not only have similar COVID measures been introduced, but recent emergency orders have been made to address natural disasters, including wildfires and floods, that seem to be inceasinig in frequency and severity as our planet warms. These events have produced political instability. The debate will soon shift from Parliament to the courts on whether the federal government was legally justified in declaring of a ‘public order emergency’ under the Emergency Act, R.S.C. 1990, c. 22 (4^th Supp.), in response to the seizure of parts of the country’s capital city by occupiers whose leaders included those who wished to impose their own system of government on Canada. In the last few weeks, the Russian invasion of Ukraine has put the international legal order into a state of emergency. In its March 2nd resolution on the invasion, the U.N. General Assembly decried “the humanitarian and refugee crisis that the aggression by the Russian Federation has created”, and it directed the U.N. Emergency Relief Coordinator into action in response. I do not mean to suggest that each of these emergencies is equally serious. They are not. But there seem to be a lot of emergencies.

Whether we are entering into a new era of emergencies or whether the reality of crisis and instability long experienced by marginalized communities everywhere is simply extending its reach is an important question to ask. In Canada, for example, many Indigenous communities have lived in states of emergency for decade after decade—a reality confirmed with heartbreaking consistency by various commissions and inquires over the years. Internationally, there are peoples who have endured the extraordinary hardship of refugee status for generation after generation—as the continued existence of the U.N. Relief and Works Agency for Palestine Refugees attests. Perhaps too many of us have been too complacent in our assumptions about “peace, order and good government” in Canada for too long.

Understanding the social and political pathologies that leave people living in states of emergency and crisis is beyond the scope of this comment. Instead, I want to offer a few brief and tentative reflections on the reality of states of emergency for legal education. The question I have in mind is not how law schools should function in the face of, say, a pandemic—though that is a good question that legal educators have and are confronting. The question is how law schools prepare future leaders in society to understand emergencies and the place of law in preventing or responding to states of emergency.

My sense is that legal education has been overwhelmingly directed at teaching students about the ordinary and the normal and only incidentally about the extraordinary and the abnormal. In teaching them what to expect, are we leaving them unprepared to deal with the unexpected? Or, to put the point more precisely, in teaching students to expect a certain kind of the unexpected, namely, the vicissitudes or tragedies or wrongdoings that people in otherwise relatively stable societies invariably (but unexpectedly) experience, do we leave them with legal skills that are unsuited for the task of addressing the catastrophic events that present existential threats to ways of life or to whole communities? Is legal education overly concerned with individual emergencies and not enough with societal emergencies?

I cannot pretend to have studied whether or how law schools in Canada incorporate the reality of emergency into their educational missions. However, my own experience as a law student and a law teacher may not be atypical. As a law student, I don’t remember learning much about emergencies and the law. Only as a law teacher, when I looked back upon what I was taught, did I come to appreciate that certain basic assumptions or lessons about emergencies had been drilled into me.

Perhaps the most important lesson was found in one of the first cases that I read as a law student: Entick v. Carrington (1765) 19 St. Tr. 1030. In that case, it was argued that the executive may, on the basis of state necessity and without statutory authorisation, invade the rights of anyone suspected of treasonous acts. The Chief Justice of the Court of Common Pleas, Lord Camden, rejected this argument with flourish. “[W]ith respect to the argument of State necessity,” he said, “the common law does not understand that kind of reasoning”. Members of the executive do not have the inherent or prerogative power to silence the ordinary law of the land merely by asserting “reason of state” or “necessity of state”. Ordinary law rules even in extraordinary times.

However, the second case I read as a law student, the infamous World War II era case of Liversidge v. Anderson, [1942] A.C. 206, arguably cast doubt on the practical significance of this common law principle. In this case, a majority of the House of Lords ruled that a very open-ended grant of emergency powers by Parliament authorised the executive to deprive individuals of liberty without due process on grounds of the national interest, or, though the judges did not use this expression, on grounds of “reason of state”. So, the concept of reason of state was forcefully denied at common law, but seemingly accepted easily through statute.

Finally, I learned as a student that the constitutional division of federal and provincial powers in Canada could be set aside temporarily by Parliament to address “some extraordinary peril to the national life of Canada” (Toronto Electric Commissioners v. Snider [1925] A.C. 396 per Viscount Haldane), or, as Justice Jean Beetz put it, “a national emergency of the same significance as war, pestilence or insurrection”—including (and Beetz J. here dissented) double-digit inflation (Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373).

Beyond that not much was said during my law school days about emergencies. Nor was much said about law’s reaction to assertions of state power or sovereignty that appeared to be unjust or morally problematic and which thus created states of emergency and crises for the peoples it subjugated. The eighteenth-century wars of conquest over French Canada were in the footnotes, overtaken by happier constitutional moments of later times. The story of how Indigenous peoples were included within the state could be avoided with bland statements—such as, “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to [Aboriginal] lands vested in the Crown” (R v Sparrow, [1990] 1 SCR 1075, Dickson C.J. and La Forest J. at 1103).

The narrative of “peace, order and good government” was thus presented in a relatively uncomplicated way. An alternative and more complicated story of Canada is one that includes troubling and hard narratives about existential crises and extraordinary legal and extra-legal responses, and one that acknowledges the trauma for people and their communities that resulted. The remarkable record of this history of emergencies and law from the eighteenth to the twentieth centuries is captured in detail within, for example, the essays collected in the Canadian State Trials series edited by Barry Wright, Susan Binnie and Eric Tucker. However, these stories do not always make their way into law school courses so as to upset standard accounts of constitutional placidity in Canada.

As a law teacher, I worry that I have reinforced narratives of constitutional placidity. I have always tried to teach the “Oka Crisis” of 1990, but I have not always taken the time to explore with my students the differences between the use of the Canadian Armed Forces in response to Mohawk blockades during that crisis and the use of the Canadian Armed Forces during the “October Crisis” of 1970 in response to the terrorist acts of the F.L.Q. in Quebec. The differences were real. The Army was called in by the federal government in 1970 using the blunt instrument of the War Measures Act, R.S.C. 1970, c. W-2, and soldiers were clothed with extraordinary powers, whereas the Army was called in by the provincial government in 1990 under the ‘aid to the civil power’ provisions of the National Defence Act, R.S.C. 1985, c. N-5, ss. 275, and so soldiers had only the powers of ordinary constables. By 1990, of course, the War Measures Act had been replaced by the Emergency Act, and there remains considerable debate about whether the new Act would have offered a better range of responses than the National Defence Act during the Oka Crisis. Understanding these debates might shed light on the wisdom and legality of the first and only decision to invoke the Emergency Act—which was the decision, noted at the outside, made in relation to the occupation of central Ottawa last month.

My comments here on whether the law of emergencies should be the subject of more explicit and thorough teaching in law schools are admittedly brief, tentative, and based upon personal experience. I will close, however, with one thought about why the idea of the state of emergency is appropriately seen as a subject of legal analysis and learning within law schools, and that is the simple idea underlying Lord Camden’s decision in Entick v. Carrington. In the common law tradition, at least, there is no doctrine of necessity of state or reason of state that might justify setting the law aside during an emergency; rather, emergency powers are always legal powers conferred by statute and authorized by the constitution, and their use must always be open to legal challenge and legal justification at the appropriate time and in the appropriate forum. If our societies confront an uncertain future where crises and emergencies are expected to be more frequent, then the survival of systems of democratic governance based on the rule of law may depend upon whether the leaders of tomorrow appreciate and internalize this basic insight.

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Mark D. Walters, Dean of Law
Queen’s University