One constitutional lawyer said the legislation belonged in 1930s Europe
The passage of provincial legislation extending some COVID-19 emergency orders for one year and giving the government the power to amend the orders without a vote from the legislature has been met with a torrent of criticism.
Bill 195 – the Reopening Ontario (A Flexible Response to COVID-19) Act received Royal assent July 21 and comes into force July 24. The Act ends the state of emergency in Ontario but continues certain orders made under the province’s COVID-19 emergency legislation, for one year. The power to amend or revoke the orders rests with the Minister, not the Legislative Assembly.
The Canadian Civil Liberties Association called the Reopening Ontario Act an “undemocratic power grab,” which gives the Premier and his Ministers the ability to impose emergency orders that “drastically curtail basic rights and freedoms” without the “need to engage in the legislative process or involve members of the Legislative Assembly.”
Cara Zwibel, director of fundamental freedoms at the CCLA, told Law Times that the Act sidelines Ontarians’ democratic representatives from engaging on the emergency orders, many of which had Charter implications.
“The concern is that we have an elected assembly that is supposed to represent the province. And those individuals don't have a chance to weigh in on whether these measures should continue to be maintained, until about a year from now. Whereas under the Emergency Management and Civil Protection Act, the government had to go back to them every 28 days for extensions.”
The amendment power under the Act includes making the emergency order “more onerous” imposing “different requirements” and applying the order to other areas of the province, states the Act. Every 30 days, the Premier or a Minister is required to report to the public and a committee of the assembly on the orders that have been extended and the rationale for their extension. The orders can only be extended 30 days at a time.
Though the government has the power to amend the Act without the Assembly’s authorization, there are two conditions that need to be met, according to an article by Rebecca Liu, Paul Broad, lawyers at Hicks Morley Hamilton Stewart Storie LLP. First, “the amendment must require persons to act in compliance with the advice, recommendations or instructions of a public health official.” And second, the amendment must relate to one of three subject matters: (1) closing or regulating a public or private place; (2) regulating or prohibiting gatherings or organized public events and (3) providing workplace management rules or practices, “authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify and implement redeployment plans or rules or practices that relate to the workplace.”
Toronto constitutional lawyer Rocco Galati tweeted his opposition to the legislation: “It belongs in 1930s in Europe. Should have been called the return to dictatorial rule Act. It needs to, and will be, constitutionally challenged.”
The Ontario Federation of Labour said it was “outraged” by the Act, which gives employer the ability to bypass collective agreements, deny vacation and contract-out jobs.
“All workers have the right to bargain collectively with their employer under the Canadian Charter of Rights and Freedoms,” said an OFL statement.
“A legal challenge is certainly in the cards, and increased labour action is also clearly on the table… The Ford Conservatives call front-line workers heroes with one breath, then strip those same workers of their rights,” said OFL president Patty Coates.
Zwibel added that, under the Act, hospital workers can be prohibited from taking vacation and from “exercising a whole number of rights they have under their collective agreement.”
The lone Progressive Conservative to vote against Bill 195 was kicked out of the PC caucus. Cambridge MPP Belinda Karahalios called the Bill an “unnecessary overreach” that “essentially silences every single Ontario MPP on the most important issue in our legislature today.”
Dr. Leslyn Lewis, a lawyer who is running for the leadership of the Conservative Party of Canada, tweeted that under her leadership, MPs would have freedom to vote on matters of conscience and applauded Karahalios for her actions.
Criticism also came from the Justice Centre for Constitutional Freedoms. The JCCF said it is a contradiction that, while ending the state of emergency, the Province would extend the orders made in the name of the emergency, including those restricting the size of gatherings, closing businesses, altering collective agreements, allowing police to demand identification and allowing police access to personal health information. The JCCF notes a similar “unconstitutional power grab” was recently implemented in Alberta.
“Emergency powers should be temporary and subject to rigorous, principled dissent. Bill 195 is the silencing of the peoples’ voice through their representatives in the provincial parliament. The removal of MPP Karahalios is a warning sign that the Ford government has an antagonistic stance toward democratic restraint on its power,” said Jay Cameron, litigation manager at the JCCF.