Focus On
Michael Lynk, Western University faculty of law

Ambitious throne speech agenda requires concrete action on part of government, observers say

Monday, September 28, 2020 @ 1:53 PM | By Ian Burns


The Trudeau government’s ambitious throne speech has set out a broad agenda for Ottawa to follow as it continues in its fight against the COVID-19 pandemic, but observers are saying the plan largely avoids specifics and swift action is needed to follow up on what the Liberals are promising.

Gov. Gen. Julie Payette laid out the government’s plan Sept. 23, saying overcoming the pandemic “requires the work and resolve of every order of government.

“This is an ambitious plan for an unprecedented reality. The course of events will determine what needs to be done when,” said Payette. “But throughout, protecting and supporting Canadians will stay the top priority. And the core values that have driven the government since day one remain the same.”

The centrepiece of the government’s economic plan is to create one million jobs, which it says will be done using a range of tools, including direct investments in the social sector and infrastructure, immediate training to quickly skill up workers and incentives for employers to hire and retain workers.

Matthew Kronby, Borden Ladner Gervais

Matthew Kronby, an international trade lawyer with Borden Ladner Gervais in Toronto, said it was unclear to him whether the government was looking at creating a million new jobs or just getting a million people back to work.

“If the government wants to create the conditions for the private sector to create those jobs, that is different than the government creating the jobs itself,” he said. “If the federal and provincial governments want to help break down interprovincial trade barriers, that is something that a lot of people think would help grow the economy and by extension create jobs. But it is not something Ottawa can do by itself.”

The government also plans to create what it calls a “resiliency agenda” for the middle class “and people working hard to join it,” which includes an action plan for women in the economy and investment in a Canadawide early learning and child care system as well as a promise to reform the employment insurance (EI) system to better include the self-employed and those in the so-called gig economy.

“This crisis has been described as a She-cession,” said Payette. “We must not let the legacy of the pandemic be one of rolling back the clock on women’s participation in the workforce, nor one of backtracking on the social and political gains women and allies have fought so hard to secure.”

Michael Lynk, associate law professor at Western University

Michael Lynk, an associate professor at Western University who teaches labour law, agreed that women, along with Indigenous people and other racialized groups, have been more strongly affected by the pandemic. He said using EI to bring employment supports to Canadians is a smart move, and reform of the system should be a priority to ensure it properly functions in the face of a new economy.

“When you think of how difficult it is to move through a crisis like this in a federal system where some powers go to Ottawa and others go to the provincial government, allowing it to go through employment insurance which is solely a federal responsibility makes it easier to the federal government to act in a nimble and quick way in maintaining employment levels and consumer spending,” he said. “But we do need to figure out new ways of having employees in the gig economy and independent contractors pay into it because the model of stable full-time employment with a single employer for a long period of time is seriously eroding.”

Climate action, already a centrepiece of the Trudeau government’s agenda, will continue to be a focus, with plans to support businesses reach net zero emissions, ban single-use plastics and update the Canadian Environmental Protection Act (CEPA). Tim Gray, executive director of advocacy group Environmental Defence, noted many of the Trudeau government’s environmental plans were put on hold by the pandemic and much of the throne speech felt like a reiteration of commitments which were made a year ago. But what he felt was missing from the speech was a very clear linkage between the recovery from COVID-19 and moving to a “more clean and just economy.”

“One of the key issues here is the right to a healthy environment. So many jurisdictions in the world are taking environmental issues to the core of their decision making,” he said. “We would definitely like to see that.”

Devon Page, Ecojustice executive director

Devon Page, executive director of environmental law charity Ecojustice, said he welcomed the government’s recommitment to ban single-use plastics but agreed with Gray in saying a modernized CEPA must include the right to a healthy environment.

“Just last week, the UN Special Rapporteur on hazardous substances and wastes published a report that highlights Canada’s ongoing failure to protect Indigenous and racialized communities — the same communities that have been most impacted by COVID-19 — from the worst effects of pollution,” he said. “Canadians are depending on this federal government to deliver urgent, bold action to safeguard our future. Therefore, as this federal government guides Canada through the COVID-19 pandemic, it is imperative that it does not lose momentum toward delivering legislation that will drive climate action and protect a healthy environment for all Canadians.”

Shifting focus away from the economy, the government said it was planning to take steps in ensuring the “strong hand of criminal justice” is used where it is needed, but not used where it would be discriminatory or counterproductive. This includes dealing with addressing systemic inequalities in the criminal justice system, enhanced civilian oversight and modernized training for law enforcement. The government also announced it would bring in legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the end of the year and has pledged to take action on online hate.

“All Canadians must have the confidence that the justice system is there to protect them, not to harm them,” said Payette. “Black Canadians and Indigenous peoples are overrepresented in the criminal justice system. That has to change.”

But Alex Neve, secretary general of Amnesty International Canada’s English branch, said the speech was an unprecedented moment to have a full and unwavering recognition of and commitment to Canada’s national and international human rights obligations but “unfortunately that did not occur.”

“This was a chance for a strong commitment to demonstrate leadership in working towards a nationwide ban on carding, street checks and racial profiling by police and security agencies,” he said. “While there are indications of several legislative, policy and resourcing changes that will be pursued, there is nothing to suggest that truly fundamental reforms to policing to address systemic racism are being considered.”

And some of the government’s promises, such as on EI reform and pledges to create both a national pharmacare and child care strategy, has led to concerns Ottawa may be intruding into areas of provincial and territorial jurisdiction. In a statement, Canada’s provincial and territorial premiers said it was imperative that the federal government involve provincial and territorial governments in the design of federal measures to support Canadians.

“This will ensure federal measures are suited to the various needs and realities of provinces and territories, complement provincial and territorial measures, and respect their jurisdiction,” the statement read. “Continued co-operation amongst provinces and territories, and with the federal government, will be critical to ensure a strong economic recovery. This co-operation has resulted in unparalleled investments by all governments.”

Kronby said he thinks the federal government knows it is walking a very fine line when it comes to jurisdictional issues.

“The federal government has a role to play in funding health care but delivery of health care is certainly a matter of mostly provincial responsibility and there are constitutional divisions of power that need to be respected,” he said. “But where exactly those lines are, given the vagueness of a lot of the government’s proposals, I don’t know.”

And one issue that Lynk sees on the horizon is whether employers or schools will be able to prevent people from returning to the workplace unless they show proof that they’ve had a COVID-19 vaccine once it becomes widely available.

“If we want to return to the way things were, which is having people sit next to each other in the workplace or the university lecture hall with no masks, we need to have an effective vaccine. But we have had this question in the past of employers insisting upon nurses or personal support workers taking mandatory flu shots,” he said. “Can we demand people have a vaccination? I think that is one of the major leading questions that labour lawyers have to end up answering as the world returns back to the way it was.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.