Premier Doug Ford has declared a state of emergency in the province of Ontario as part of the government’s efforts to slow the spread of COVID-19.
“We’re facing an unprecedented time in our history,” Ford told the media at Queen’s Park Tuesday morning. “This is a decision that was not made lightly. COVID-19 constitutes a danger of major proportions. We’re taking this measure because we must offer our full support and every power possible to help our health-care sector fight the spread of COVID-19.”
Andrea Horwath, leader of the opposition New Democrats, publicly supported the measure later on Tuesday morning, saying, “These are unprecedented times, and Queen’s Park needs to take unprecedented actions to protect and support Ontarians.” New Liberal leader Steven Del Duca and Green party leader Mike Schreiner both also expressed their support.
Here’s what you need to know.
So what does this mean for Ontario?
Formally, the government is invoking its powers under Section 7.0.1 (1) of the Emergency Management and Civil Protection Act. This law gives the government broad powers in an emergency to shut down institutions or businesses, control movement and travel, and seize any necessary goods or property to deal with the crisis. The declaration lasts for only 14 days initially, in this case until March 31. It can be renewed by the government once more for an additional 14 days. After the cumulative 28 days, the government would need the assent of the legislature to extend the emergency.
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What is the government using its powers for today?
The immediate orders the premier made this morning include:
- prohibiting any public gathering of more than 50 people;
- closing any indoor recreation centres, libraries, daycares, and private schools that hadn’t already been closed;
- closing concert venues and movie theatres; and
- closing all bars and restaurants, except those that provide take-out service.
Under the law, anyone who fails to comply with, interferes with, or obstructs an order can be fined up to $100,000 and imprisoned for up to one year; directors of corporations can be fined $500,000 and similarly imprisoned; and a corporation itself can be fined $10,000,000.
Could the government go further?
Yes. The premier has said repeatedly that “everything is on the table” as far as emergency response goes and that the government is following the advice of the provincial chief medical officer of health, as well as coordinating with counterparts federally and provincially. There could be further closures of any non-essential businesses and further restrictions on public gatherings. For now, the government says that it will not be implementing a broader provincewide shutdown.
So is this constitutional?
Well, it’s complicated. Ontario’s emergency-management law was originally passed during World War II, before the Charter of Rights and Freedoms was made part of the Canadian Constitution. Part of that law was invoked during the G20 conference in Toronto in 2010 — the so-called “G20 fence rule” was used to arrest hundreds of people, the majority of whom were never convicted of any crime. The Ontario ombudsman of the day called it an unprecedented breach of the Charter. The Liberal government amended that law in 2015, saying it was bringing it into compliance with the Charter.
But the Charter of Rights and Freedoms has always included limits, as spelled out in Section 1: “The rights and freedoms set out in it [are] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The government is allowed to infringe your rights, so long as the measures pass the Section 1 test. The Supreme Court has consistently held that both the federal and provincial governments have emergency powers they can call on when needed.
How long could this last?
As mentioned earlier, the government would be able to extend this emergency once for another 14-day period, which would expire on April 14. The legislature could then extend it further, and, so far, nobody has seriously challenged the idea that this crisis could go on for longer. In theory, the legislature could quickly rewrite the law itself to extend the government’s powers, but that’s speculation at this point.
One piece of evidence for how long this could last comes from Ottawa, where federal MPs adjourned last week — but not before first giving the government broad emergency-spending powers. That law, passed quickly in a single day by both Houses of Parliament, expires on June 25. .