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Proposed Ontario legislation to extend emergency powers raises concerns

Thursday, July 09, 2020 @ 1:45 PM | By John Schofield


Opposition parties and civil liberties advocates say they will be watching closely to see if the Ontario government’s extension of emergency powers opens the way for abuse of power.

Premier Doug Ford introduced legislation July 7 that will effectively allow it to continue current health emergency measures for up to two years.

In an official statement, NDP and Opposition Leader Andrea Horwath said her members are concerned the proposed legislation, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, could give the Ford government “unlimited power without accountability.”

“The COVID-19 public health crisis has required the use of extraordinary powers under the Emergency Management Act,” she said in the statement. “By design, these powers are time-limited and subject to checks and balances.

“By giving itself a year or two of extraordinary powers,” Horwath added, “it sounds like the Ford government is trying to give itself all the power with none of the accountability, debate or reporting requirements.”

Cara Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association

Cara Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, called it a “troubling piece of legislation that effectively tries to maintain the significant amount of power that the executive has during an emergency while trying to jettison the label of an emergency.”

“This is a situation we’re going to be in for some time,” she added, “and while I appreciate there’s a need for more flexibility and it might be a hassle for the government to go back to the legislative assembly every 30 days and continue to declare an emergency, if that’s what they chose to do, there’s a reason that it’s a hassle to do that. There’s a reason that we have those kinds of checks and balances in place, even in the context of an emergency or a public health crisis, and so this attempt to circumvent the democratic process is of significant concern to us.”

The government announced in a July 9 news release that it is extending emergency orders currently in effect under the Emergency Management and Civil Protection Act (EMCPA) to July 22. To give the proposed legislation time to pass, the government has also brought forward a motion in the legislature that, if passed, would extend the provincial declaration of emergency to July 24.

“If passed, the proposed legislation would allow us to chart a responsible path to economic reopening and recovery without putting all the progress we’ve made in fighting this virus at risk,” Ford said in a news release.

“Even as we continue certain emergency orders under the proposed legislation to protect public health, we will always be a government accountable to the people of Ontario. That’s why I will ensure ongoing updates are provided and that a report is tabled within four months of the anniversary of this proposed act coming into force.”

Solicitor General Sylvia Jones said the proposed legislation would equip the government to deal with the continuing risks posed by the COVID-19 pandemic.

“This new legislation,” she noted in the same release, “would provide the government with the necessary flexibility to ensure select tools remain in place to protect vulnerable populations, such as seniors, and respond to this deadly virus.”

The legislation would continue the emergency orders in effect under the EMCPA for an initial 30 days.

In addition, it would allow the lieutenant-governor in council to further extend the orders for up to 30 days at a time or to amend emergency orders continued under the EMCPA if the amendment relates to issues such as labour redeployment, workplace and management rules, the closure of places and spaces, or the regulation of how businesses and establishments can provide goods and services in a safe manner. Emergency orders could also be amended if they relate to compliance with public health advice or rules related to gatherings and organized public events.

The proposed legislation would not allow for the creation of new emergency orders and would allow emergency orders to be rescinded when it’s safe to do so, according to the news release.

The release adds that the ability to extend and amend orders under the new legislation would be limited to one year, unless extended by the Ontario legislature. “Appropriate oversight and transparency would be ensured through regular, mandated reporting that provides the rationale for the extension of any emergency order,” it states. “The legislation would include the same types of provisions on offences and penalties as set out under the EMCPA to address non-compliance with orders.”

The proposed legislation would not preclude a municipality from declaring an emergency under the EMCPA or the provincial or local medical officers of health from exercising powers under the Health Protection and Promotion Act, the news release notes.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact John Schofield at john.schofield@lexisnexis.ca or call (905) 415-5891.