Why is the province of Ontario making emergency powers permanent while simultaneously declaring the emergency over? This power-grab by the premier is an unjustified violation of Charter protected rights, and citizens should be concerned.
Bill 195, The Reopening Ontario (A Flexible Approach to COVID-19) Act, 2020, was introduced at Queen’s Park on July 7. This proposed legislation would end the state of emergency, which was declared on March 17. But it would simultaneously continue a number of existing emergency orders.
Under the proposed legislation, restrictions on the size of gatherings, or orders that keep businesses closed and override collective agreements for the redeployment of workers, are all extended and can even be amended. Orders allowing the sharing of personal health information and which allow for police to demand identification (carding) are also extended, but cannot be amended. These orders no longer need to be renewed every 14 days, and could remain in place up until June 2022.
While under a declared state of emergency, these limits to our Charter protected rights of mobility, privacy, free association and free assembly are likely justified under the balancing test set out in section 1 of the Charter. When in the midst of a pandemic, a government order stating that gatherings of more than five or 10 people are prohibited, or that collective agreements may be put aside in order to redeploy health-care staff to long-term care facilities, has a strong rationale.
But once the government announces that that state of emergency has ended, so too does the justification for limiting our rights.
Logically, emergency orders may only be made during an emergency. The conditions for what constitutes a state of emergency are high. It is defined under the Emergency Measures and Civil Protection Act (EMPCA) as “a danger of major proportions that could result in serious harm to persons or substantial damage to property.” A state of emergency also requires that the government’s normally available resources (including legislation) may not be reliable or may be insufficient.
Once an emergency is declared, cabinet has the power to make a wide range of orders, and can even override and re-write certain legislation on a temporary basis. It was through the declaration of an emergency that these extraordinary restrictions were all brought into place.
If the Ontario government is now of the view that the province is no longer in a state of emergency, why are the orders that were issued under the emergency continuing under Bill 195?
The bill also removes other accountability measures that exist when the orders are issued under the EMCPA during a state of emergency. Under Bill 195, certain orders can be amended even though the emergency is over. Orders can be extended for 30-day periods rather than only 14 days. The Premier must table a report on the emergency under Bill 195, but it does not need to be debated by the legislature, which it does under the EMCPA.
Constitutional experts are concerned. Professor Ryan Alford of Lakehead’s Bora Laskin Faculty of Law has described the legislation as a “power grab.” Professor Alford elaborated, saying that any “attempt by the government to argue that the current crisis can justify the infringement of fundamental rights two years later is bound to fail. The precedent this would create is horrendous: a hypothetical state of affairs should never be the basis for an actual and substantial restriction of liberty.”
Dan Sheppard of Goldblatt Partners has stated that with Bill 195, the “constitutional calculus may have shifted.” In a recent report on the COVID-19 emergency measures, Sheppard stated that “in light of the government’s position that the COVID-19 pandemic no longer constitutes an emergency — at least as that word is defined in the EMPCA — it becomes harder to justify orders that directly conflict with constitutional right(s).” Public policy research shows that changes to emergency powers tend to happen during emergencies. It is how the policy process works. Emergencies are the impetus to the policy cycle.
For this reason, both civil libertarians and unionists should be concerned. Bill 195 is power seeking, but it may be only the beginning. If these intrusions into our rights are not resisted, we may be at the beginning of a new policy cycle that seeks even longer term and larger changes that further limit our rights. Emergency powers should apply only during emergencies, and any attempt to extend them beyond must be described as nothing more than a power-grab.
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