What Ontario’s new COVID-19 law actually does

ANALYSIS: The government is asking MPPs to give it emergency powers for as long as two years. Is this a power grab — or just the new reality of COVID-19?
By John Michael McGrath - Published on Jul 08, 2020
On July 7, Solicitor General Sylvia Jones, shown here at a COVID-19 briefing at Queen's Park on June 29, introduced Bill 195 in the legislature. (Frank Gunn/CP)

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It’s been an open question since Premier Doug Ford announced that he wanted to bring the province’s state of emergency to an end some time in July: In the absence of the government’s emergency powers, how would the province continue the public-health measures that have succeeded in reducing Ontario’s COVID-19 caseload? All the government’s health orders flow from the declared state of emergency. So, without it, would people be allowed to congregate in moist nightclubs and sweaty gyms again?

In a word, no. On Tuesday, Solicitor General Sylvia Jones introduced Bill 195, the Reopening Ontario (A Flexible Response to COVID-19) Act, in the legislature. The bill would give the government the power to continue a number of the emergency orders it’s used since the pandemic began even after the state of emergency ends. Separately, the government announced it plans to introduce a motion to extend the state of emergency one final time, to July 24, to give the legislature time to pass this new bill.

Given the Progressive Conservative majority in the legislature, the bill is nearly certain to pass.

The Emergency Management and Civil Protection Act allowed the government to declare the state of emergency and issue orders, but it’s not a law that’s really built for the possibility of a years-long effort to fight a pandemic. What Bill 195 would do is effectively lift the current emergency orders out of the framework of the EMCPA and continue them under new conditions. Under the current law, the government needs to renew any emergency orders every 14 days; the new bill would make that every 30 days. Under the current law, the legislature needs to extend the state of emergency every 28 days; this law would expire in a year’s time unless extended by the legislature.

The government would only be allowed to amend or extend some of the emergency orders that currently exist; it wouldn’t have the ability to create new ones. And it wouldn’t even be able to amend all the current orders: Section 4 of the bill sets out a list of all the orders that would be effectively frozen in place unless entirely repealed.

The government would retain the power to issue emergency orders in three broad categories: closing or regulating “any business, office, school, hospital or other establishment or institution”; making rules to manage workforces (for example, sending hospital teams into long-term-care homes); and prohibiting or regulating public gatherings. Any amendments to existing emergency orders would have to fall within those three broad categories.

And those categories are, indeed, very broad. But so are the powers the government has currently. There’s nothing in the current law that would keep the government from using its majority in the legislature to renew the state of emergency every 28 days from now until the next election, and, under that scenario, it would face none of the limits to its powers that Bill 195 imposes. It could even let the state of emergency expire altogether and keep renewing “zombie” emergency orders every 14 days without so much as a vote in the legislature (although it wouldn’t have the flexibility to amend those orders, as Bill 195 would allow it to do). Is this a “power grab”? That depends on what you’re comparing it to.

The opposition parties at Queen’s Park would arguably lose some of their leverage with the government, since the new law wouldn’t require the regular votes of the legislature to maintain its emergency powers. However, with the exception of independent MPP Randy Hillier, no one from the opposition parties has challenged the renewals of the state of emergency. They’ve opposed the government’s other COVID-19 recovery measures for being insufficient or wrong, and nothing in Bill 195 would keep them from doing that in the future.

While Bill 195 would allow the government to continue some of its emergency powers, ending the formal state of emergency would still have some real-world effects. For example, the court order halting residential evictions in Ontario during the pandemic will come to an end shortly after the state of emergency does, so tenants will once again be in danger of eviction, absent any further legislative changes.

One other notable power the government has given itself: the power to repeal the law without another vote by MPPs. Section 17 of the bill contains the language necessary to repeal the law when that section is proclaimed, so it’s possible that, if the pandemic runs its course in less than a year — say, if there’s a vaccine breakthrough before July 2021 — the government could simply announce one day that these powers have been terminated.

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